TRYING TO TWO-TIME THE ENVIRONMENTAL ASSESSMENT ACT

Environmental Assessment Certificates Restricted to One Five‑Year Extension under the Environmental Assessment Act

Obtaining an environmental assessment certificate is an important early step for any large environmental project.  However, factors outside of one’s control can often produce delays which, in turn, prevent substantial work from being completed on a project in a timely manner.  Although there is an extension provision built into the Environmental Assessment Act, sometimes a single extension is not enough, which prompts the question: How many extensions are too many?

In the recent case of Taseko Mines Limited v. British Columbia (Minister of Environment and Climate Change Strategy), 2019 BCCA 452, the B.C. Court of Appeal has held that the answer is that ‘two is too many’ and, more specifically, only one five‑year extension can be granted under s. 18(4)(a) of the Environmental Assessment Act.

In Taseko Mines, the petitioner mining corporation had been issued an environmental assessment certificate in 2010 for the purpose of developing a copper and gold mine, which required that they make a substantial start on the project by no later than January 14, 2015.  Unfortunately, the start of the project was delayed by the federal approval process, which prompted the company to apply for an extension under s. 18 of the Environmental Assessment Act.

The company’s initial application for an extension was granted, but the project continued to languish due to various regulatory hurdles.  So, with still no substantial start on the project, the company was compelled to apply for a further extension.  However, on the second time around, the Minister refused the application on the basis that the legislation allowed for the extension of a deadline in an environmental assessment certificate “on one occasion only”.  This refusal was issued despite s. 24(4), which provides that the Minister is empowered to extend, with or without conditions, the time limit for doing “anything” under the Act.

The company’s application for judicial review of the refusal was dismissed and, on appeal, the B.C. Court of Appeal agreed with the Minister, finding that the decision was both reasonable and entitled to a significant degree of deference.  More specifically, the Court held that the Minister’s conclusion fell within the range of possible, acceptable outcomes that were defensible, in fact and law, and as a result ought to be upheld.

December 16, 2019 notably marked the coming into force of the new Environmental Assessment Act, which brought with it several changes to the provincial environmental assessment process designed to place greater emphasis on the goals of enhancing public confidence by facilitating public participation in all stages of the assessment process; advancing reconciliation with First Nations groups; and enhancing procedural certainty.  The provision empowering the Minister to grant an extension “on one occasion only” has remained.

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.

Receive the latest news right to your inbox by subscribing to our Environmental Law Update here.