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LEGAL REPORT: ENERGY AND ENVIRONMENT The Supreme Court upholds the need for environmental reviews, but opens the door for governments to simplify the process. BY KELLY HARRIS Red Chris red tape T he Supreme Court of Canada's MiningWatch Canada v. Canada (Fisheries and Oceans) could open the door for a single review process desired by the Province of British Columbia, mining advocates, and even the environmental lobby. For nearly seven years, Red Chris Development Co. Ltd. and bcMetals Corp. had been seeking approval for a large-scale, open-pit gold and copper mine in northwestern British Columbia. The province approved the project in 2005 and it took another five years for the federal government to give its nod. However, responsible federal agencies did not conduct a comprehensive and public review of the project. Rather, the responsible authorities used the prov- ince's review to screen specific sections falling under the guise of the Department of Fisheries and Oceans Canada and Natural Resources Canada. Environmental groups say the open- pit mine proposed by Imperial Metals Corp., owner of Red Chris, "is cause for serious environmental concern." The proposed mine would be adjacent to what is known as the Sacred Headwaters — the confluence of the Stikine, Nass, and Skeena rivers, considered northern B.C.'s greatest salmon rivers. The groups say the mine would impact the ecol- ogy of the area and "wipe out pristine Black Lake by converting it into a 'tailing impoundment area' — a dump site for toxic waste." The federal government's approval prompted the environmental lobby, head- ed by MiningWatch, to launch a judicial review at the Federal Court of the respon- sible authorities' decision to screen the application. After an unsuccessful review at the Federal Court level, the lobby chal- lenged the ruling to the Supreme Court, which sided with MiningWatch in its view that the federal government did not follow its statutory obligations by parsing the project and screening specific sec- tions, rather than conducting a second comprehensive review. However, Justice Marshall Rothstein's ruling said, the project is allowed to proceed because "the focus of MiningWatch's interest as a public interest litigant is the legal point to which the declaration will respond. On the other hand, I can see no justifica- tion in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the sub- stantive decisions made by the RAs." The decision also points out while www. C ANADiAN law ye rmag.com APRIL 2010 39 HUAN TRAN