The Supreme Court of Canada dismissed the application for leave to appeal in the case of Highlands District Community Association v. British Columbia (Mines). Ian Knapp of MacKenzie Fujisawa LLP was lead counsel for the community association, with generous help and support from Eugene Meehan Q.C. and his team at Supreme Advocacy LLP and Calvin Sandborne Q.C. of the University of Victoria Environmental Law Centre.
This case was about the relevance of climate change to resource extraction projects. The decision maker, in this case an inspector under the BC Mines Act, in effect said that climate change considerations were irrelevant environmental impacts and expressly ignored local community concerns about this most significant environmental challenge.
The thrust of the HDCA’s argument was that Canada’s international commitments and the significance of climate change as an environmental problem made it patently obvious that the decision maker should have investigated and assessed the climate change impacts of the project. Alas, all courts deferred to the decision maker on what constituted relevant environmental impacts on these facts.
The result is indeed disappointing to our client, but should also be disappointing to Canadians in general, particularly in light of the ongoing COP26 summit. Our law presently has no mechanism to enforce as a matter of course the lofty promises that politicians routinely make and then quietly abandon out of political expediency, leaving our younger generations an uncertain future and a more challenging natural environment to contend with.
That said, there is a window of hope. Our Court of Appeal provided guidance to community groups and industry on how to handle climate change considerations into the future. Madam Justice Fisher rejected the absolute statement made by decision maker that climate change “is not relevant”, but said that the decision turned on the facts of the case and the hard evidence (as opposed to common knowledge and international commitments).
Community and environmental groups seeking to push climate change assessments forward should be prepared to tender hard evidence and reports to decision makers, to ensure that these concerns are simply dismissed out of hand. While community members raised concerns about climate change throughout the process, no hard evidence was ever provided to the decision maker about the climate change impacts of this project. Had that evidence been tendered, the court may have taken a very different view.
For their part, developers and industry proponents should consider getting out ahead of this type of litigation and ensure that their environmental consultants assisting them in developing a proposal also undertake a carbon footprint analysis of each proposed project.
Climate change litigation is proliferating, community associations are far better organized and funded now than they once were, and it is only a matter of time that a similar case with better evidence from community associations or environmental groups arises. Because courts will only rarely second-guess the ultimate judgment call of a decision maker weighing competing evidence, ensuring that you have already gathered evidence and addressed the issue in your planning process will fortify your ultimate project plan against future challenge.
The lawyers at MacKenzie Fujisawa have considerable experience with resource development issues and litigation, having acted for both a wide range of industry and development clients and community associations. We would be happy to use our experience and objectivity to help you with your legal needs in the future.