“USE IT OR LOSE IT” – DETERMINING THE EXPIRATION DATE OF ENVIRONMENTAL ASSESSMENT CERTIFICATES

In the recent decision of Glacier Resorts Ltd. v. British Columbia (Minister of Environment), 2019 BCCA 289, the B.C. Court of Appeal held that it was reasonable for the Minister of the Environment to have found that an environmental assessment certificate had lapsed based upon her observation that the work on the ground had not been substantially started.

In 2004, Glacier Resorts Ltd. had obtained a certificate under the Environmental Assessment Act in relation to a year‑round ski resort project that was intended to be developed in the East Kootenay region.  The certificate originally required the project to be substantially started within five years (2009), though this deadline was further extended another five years (to 2014).

Unfortunately for Glacier, the project was plagued by a number construction delays (some of which were outside of Glacier’s control), which included delays related to obtaining a Master Development Agreement with the Province (due to a challenge by the Ktunaxa Nation that reached the Supreme Court of Canada), obtaining municipal rezoning, and difficulties accessing the site due to the closure of a Forest Service Road.  In the result, only a limited amount of actual construction had been completed on the ground by the time that the certificate’s deadline had been reached in 2014.

In considering the matter, the Minister of Environment ultimately determined that the project had not been substantially started by the 2014 deadline and consequently, the environmental assessment certificate had expired.  This decision prompted Glacier to commence a judicial review application, which sought to quash the Minister’s determination and an order in the nature of mandamus compelling the Minister to reach the opposite conclusion.

Upon judicial review, the chambers judge found that in reaching her decision, the Minister had failed to take into account the various aforementioned factors that led to the development delay, which were described as “Mitigating/Limiting Factors”.  In the result, the chambers judge held that the Minister’s failure to give weight to those factors was unreasonable and quashed the determination while remitting the matter back to the Minister of Environment for reconsideration.

On appeal, Justices Groberman and Fitch held that it was permissible for the Minister to have looked primarily at the work accomplished on the ground (or lack thereof) in making the determination that the project had not “substantially started”.  In the result, the majority of the Court of Appeal found that the Minister’s conclusion that the environmental assessment certificate had lapsed was reasonable.  Of note, Justice Hunter dissented on the basis that the Minister’s express refusal to consider all of the relevant circumstances affecting the extent to which Glacier could have advanced construction was unreasonable.

In short, the Glacier decision offers a sobering reminder to project proponents that irrespective of the cause of construction delays (including even those outside of one’s own relative control), in assessing whether construction on a project has “substantially started” by the deadline provided on an environmental assessment certificate, the Minister may reasonably restrict their observations to ground work that has actually been completed.  Therefore, it is prudent that construction on projects requiring a certificate be commenced without delay.

Want more useful updates on recent decisions? Contact Andrew Tang at atang@harpergrey.com or anyone else from our team listed on the Authors page.

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