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Environmental law - Environmental assessment - Legislation - Interpretation - Administrative law - Judicial review - Under s. 21(1) of Canadian Environmental Assessment Act, S.C. 1992, c. 37, as amended (“CEAA”) when a major industrial project is described on the Comprehensive Study List, is there a right for the public to be consulted on a responsible authority’s proposed scope of project decision? - Does CEAA grant responsible authorities jurisdiction to downgrade a comprehensive study assessment to a screening level assessment, thereby avoiding the mandatory public consultation required by s. 21?

The corporate Respondents plan to develop an open pit mining and milling operation for the production of copper and gold in north-western B.C. They submitted a project description to the BC Environmental Assessment Office and triggered the federal assessment process by submitting two applications to the Department of Fisheries and Oceans (“DFO”) for the construction of starter dams related to a tailings impoundment and stream crossings. DFO, as a responsible authority, concluded that an environmental assessment would be required pursuant to paras. 5(1)(d) and 5(2)(a) of the CEAA and posted a “Notice of Commencement of an environmental assessment” indicating that DFO would conduct a comprehensive study commencing on May 19, 2004. Natural Resources Canada was a responsible authority under the CEAA on the basis of s. 7 of the Explosives Act, R.S.C. 1985, c. 17, due to the explosives that were to be stored and used in operating the mine.

DFO later determined that the scope of the project required only a screening report. On May 10, 2006, the responsible authorities posted their Course of Action Decision taken under para. 20(1)(a) of the CEAA, determining that the project, as scoped, was not likely to cause significant adverse environmental effects. This allowed the corporate Respondents to proceed with their applications for federal licenses. The Applicant filed a notice of application for judicial review of the Course of Action Decision, on the basis that the responsible authorities had breached their ongoing duty to hold public consultations on their proposed scoping of the project, pursuant to s. 21 of the CEAA.