The British Columbia Supreme Court has ordered the B.C. Environmental Assessment Office (EAO) to reconsider its previous decision to not require an environmental assessment of the proposed Komie North frac sand mine near Fort Nelson, B.C.
In this case, Canadian Silica Industries (CSI) wanted to develop the Komie North Mine and potentially five other mines for the extraction of frac sand. The deposits are particularly valuable given the extensive oil and gas activities in the area. However, the mine site lays within the historical territory of the Fort Nelson First Nation (FNFN) who were concerned about the mine’s potential environmental impacts upon their traditional territory and existing treaty rights. The FNFN made those concerns known to the EAO as well as other government authorities from whom regulatory approvals must be obtained for the development and operation of the mine and the other five potential mines identified by CSI. Specifically, the FNFN asserted in numerous communications with the EAO that the North Komie Mine should be designated as a “reviewable project” under B.C.’s Reviewable Projects Regulation. Under the Regulation, a new sand and gravel pit is required to undergo an environmental assessment if 500,000 or more tonnes of sand and gravel were to be extracted per year or 1,000,000 or more tonnes were to be extracted over four or fewer years. CSI proposed to extract 1,720,000 tonnes of sand and gravel over four years, but from that produce for sale only 134,000 tonnes per year of marketable proppants and discard the remaining gravel and other material as waste. The FNFN argued that CSI was attempting to circumvent the Regulation by only counting the saleable sand in the project’s production estimate and by characterizing the gravel as waste.
The FNFN also noted that three of CSI’s proposal mines were immediately adjacent to each other and a fourth a little over a mile away. The FNFN claimed that CSI’s proposed development was really a single project.
The EAO, without consulting the FNFN, then decided that the proposed sand production volumes were below the reviewable threshold set by the Regulation and that CSI was therefore not required to undertake an environmental assessment.
The Court disagreed. It found that the EAO’s decision was unreasonable to conclude that only the volume of frac sand that was to be produced was the determining factor in assessing the productive capacity of the proposed mine while ignoring the volume of excavated gravel and other materials that CSI intended to discard.
The Court also found that B.C. had a duty to consult with the FNFN and that it had failed to meaningfully do so in good faith.
The Court set aside the EAO’s decision and ordered the EAO to reconsider the applicability of the Regulation, as well as issuing a declaration that B.C. had failed to meaningfully consult with the FNFN.
A copy of the Court’s decision can be found at: http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1180/2015bcsc1180.html.