Wednesday June 16, 2021 | HIGHLANDS, BC
by Jalen Codrington | Island Social Trends
This is the second in an ongoing series of articles concerning the District of Highlands and OK Industries quarry. The first can be read here.
The District of Highlands has been dealt another setback in efforts to quash the strip-mine currently being built within their community.
On Monday June 14, the courts rejected an appeal brought forth by the Highlands District Community Association (HDCA) regarding the legitimacy of the Mines Permit which authorized the quarry.
The three BC Court of Appeal judges unanimously ruled that although the mines inspector (formerly the statutory decision maker) did not investigate the impacts the quarry would have on climate change, his failure to do so did not render his decision unreasonable.
“In my view, this is a submission that seeks a legislative response to a problem of global magnitude, but provides no basis for this court to intervene,” Justice Barbara Fisher stated.
OK Industries (OKI) bought the vacant lot from the provincial government in 2015. When OKI went to the District of Highlands to rezone the 65-acre property from greenbelt to commercial industrial, it was met with unanimous opposition. The district cited concerns about noise, air pollution, biodiversity loss, and groundwater contamination.
The paving company then went to the Ministry of Energy, Mines, and Low Carbon Innovation (MEMLCI) to apply for a mines permit, which would override the opposition of the community.
In March of 2020, Don Harrison, Senior Inspector of Mines, acting on behalf of the MEMLC, granted OKI a permit to convert the property into an aggregate strip-mine. In a detailed report, Harrison outlines his decision-making process, and addresses all the concerns of the district. He noted that OKI had retained the third-party consultants needed to address the concerns, and had revised the original quarry design based on their recommendations.
“I find that I cannot reasonably refuse to issue a Mines Act permit for the Application based solely on public opposition,” wrote Harrison, “without science-based technical evidence that indicates my considerations have left out critical, credible and reliable information and undisputable facts.”
But the HDCA argues that Harrison left one critical fact overlooked – namely, the consideration of climate change.
Latest court appearance:
In May 2021, the BC Court of Appeal heard arguments from Ian Knapp, a lawyer hired by the HDCA. Also present were lawyers hired by OKI, as well as lawyers from the province.
Knapp argued the Mines Inspector failed to account for climate change impacts when assessing OKI’s application, rendering his decision to grant the permit unreasonable. Knapp pointed out that the quarry site, being a forested area, is a carbon sink, which draws in carbon content from the atmosphere and stores it in the soil and plants.
Counsel for OKI stated that the Mines Inspector’s interpretation of the Mines Act was reasonable, and even if climate change is a relevant factor, the Act does not require him to consider this, nor does his failure to do so render the decision unreasonable.
In his original report, Harrison wrote, “While this is an important issue and Canada has passed a non-binding motion to declare a national climate emergency in Canada, climate change is not relevant under the Mines Act.”
Larger rock quarries (with an annual production capacity of 250,000 tonnes or more) are subject to the more expansive environmental assessment under the Environmental Assessment Act, which includes consideration of greenhouse gas emission. OKI’s quarry, however, is a much smaller site, meaning a more expansive environmental assessment was not required under current law.
How things worked out:
Ultimately, the judges ruled to dismiss the appeal.
“In my view,” said Fisher, “the statutory scheme does not impose such an obligation on the Mines Inspector; rather it provides a broad discretion to require information he considers relevant to the matter before him. The Mines Inspector could have sought a report on carbon emissions from OKI, but his failure to do so in the context here does not render his decision unreasonable.”
Mel Sangha, Corporate Advisor for OKI, said he is glad to have this appeal finally over with.
Calvin Sandborn, Legal Director of UVic’s Environmental Law Centre, said that the decision demonstrates the need for the legislature to act, and to require the MEMLCI to actually consider climate change impacts before it approves any mine or quarry.
“Government has a huge and important role for boundary setting and regulation, which we would have expected the New Democrats to understand and be responsive to, but apparently not,” said Scott Richardson, Chair of the HDCA. “Instead, they only seem interested in symbolic renaming of ministries – the Ministry of Energy, Mines and Low Carbon Innovation, and the Ministry of Environment and Climate Change Strategy – while leaving the actual burden of fighting climate change with individual citizens and resisting calls to reform the Mines Act to bring it in line with the social and environmental realities of the 22nd Century.”
Forward from here:
Only time will tell if this decision will have an impact on mining legislature. It is possible that the ruling will build public support for larger law reform. Advocacy groups such as the BC Mining Law Reform, are already working to update provincial mining policies.
In a separate court challenge, the District of Highlands is appealing a January 2021 BC Supreme Court decision stating that the district’s bylaws are not applicable to activities authorized by the quarry permit.
Meanwhile, OKI continues its work clearing and preparing the quarry site.