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Ministers’ decision to stop $2.5-billion project failed test of ‘procedural fairness,’ judge says
VANCOUVER — Prospects for a proposed open-pit gold and copper mine in northern B.C. improved this week after a B.C. Supreme Court justice turfed a previous decision by two senior provincial government ministers to reject the project.
Pacific Booker Minerals Inc. asked the B.C. Supreme Court in April to overturn Environment Minister Terry Lake and Energy, Mines and Natural Gas Minister Rich Coleman’s rejection last September of its $2.5-billion mining project, located 65 km north of Smithers at Morrison Lake. In a decision released Monday, Justice Kenneth Affleck set aside the ministers’ decision, raising the possibility the mine could yet proceed.
“(The) ministers’ decision refusing to issue the certificate failed to comport with the requirements of procedural fairness,” wrote Affleck in his decision, which awarded costs to the company.
The decision appeared to place weight on recommendations that the executive director of the Environmental Assessment Office provided to the ministers before they made their decision — recommendations that did not support the project going forward, and that the company did not have a chance to respond to.
“The petitioner was encouraged to participate at every step and had been kept informed of the concerns of others,” wrote Affleck. “Its complaint is that in the final crucial stage of the referral to the ministers, when the executive director firmly put his thumb on the scale, the petitioner could not see that he had done so, let alone (have) the opportunity to attempt to restore the balance.”
Affleck ordered the ministers to reconsider the application, and ruled the company be entitled to review and respond to recommendations by the executive director.
John Hunter, counsel for Pacific Booker, told The Sun the company would be very pleased with the decision.
“We’re not back all the way to square one, because the company has this clean (environmental) assessment, but we’re at a position where the ministers have to reconsider whether they’re going to grant that certificate. Hopefully they come to a different decision this time.”
Hunter explained that the company had participated in a significant environmental assessment process involving provincial and federal agencies in the lead-up to the ministers’ consideration of the Morrison mine.
“In the course of that process, environmental issues were identified and the company was asked to make changes,” said Hunter. When the company made changes, others would be identified — ones that the company also addressed. “This went on for quite a while.”
In many cases, environmental assessments conclude that projects, should they go ahead, would produce some environmental consequences that cannot be mitigated.
Not in this case, said Hunter.
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