Home Business & Economy Natural Resources & Mining Highlands association takes to Supreme Court of Canada on quarry dispute

Highlands association takes to Supreme Court of Canada on quarry dispute

"[G]overnments haven’t acted to change legislation to curtail climate change...” says Scott Richardson, HDCA Chair.

Thursday July 29, 2021 | HIGHLANDS, BC

by Jalen Codrington | Island Social Trends


This is the third in an ongoing series of articles concerning the District of Highlands and OK Industries’ quarry. The first can be read here, and the second here.


The Highlands District Community Association (HDCA) is taking to the Supreme Court of Canada (SCC) to continue the fight against the strip-mine being built within their community. The HDCA is asking the SCC whether B.C. officials issuing mining permits can ignore climate change as a factor in deciding whether a project goes ahead.

The decision to appeal to the SCC comes after the HDCA was dealt a heavy setback by a June 14 B.C. Court of Appeals (BCCA) ruling. The ruling determined that the Mines Inspector is not required to explore the impacts of climate change when granting mines permits.

Background:

Local asphalt paving company OK Industries (OKI) originally bought the 6.6-acre property from the provincial government in 2015. After applying to the District of Highlands for a rezoning application, the company was met with unanimous opposition. The district cited concerns of noise pollution, dust pollution, traffic congestion, groundwater contamination, and overall environmental degredation. OKI then went to the provincial government, and received a Mines Permit, which overrode the community’s objections.

Don Harrison, Senior Inspector of Mines, considered the most salient concerns of the project to be noise, dust pollution, vibrations from blasting, traffic, and the visual distraction of the quarry. Climate change was not determined to be a concern at the time.

Mining by OKI within the District of Highlands [Dave Mackas]


“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.”

Although the B.C. Supreme Court (BCSC) acknowledged that the Mines Inspector “had a broad discretion to consider the
impact of climate change,” the court determined that such consideration was not “of central significance for a rock quarry of the size proposed….”

The B.C. Court of Appeals justices eventually determined 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 had stated.

Supreme Court of Canada:

The affected green space contains four sensitive ecosystems, including two woodlands, one wetland, and one old-growth forest, all of which act as carbon sinks.

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. The permit issued for OKI’s quarry limits production to 150,000 tonnes of material per year, falling short of the threshold for a greenhouse gas emission assessment by 100,000 tonnes.

In his memorandum of argument to the SCC, Ian Knapp, legal counsel for the HDCA, argues that a “small scale” rock quarry contributes to global climate change just as much as any other non-offsetting greenhouse gas producing human activity.

“Do the decisions of the courts below enforce an arbitrary threshold (i.e. the quantity of tonnage excavated per year) beyond which consideration of global climate change cannot occur?” he said.

“Our Supreme Court of Canada case asks whether BC’s Mines Inspector can decide that climate change is irrelevant in assessing mining projects,” said HDCA Chair Scott Richardson. “Should B.C.’s mining legislation be interpreted to make climate change analysis and mitigation a mandatory requirement of the mine assessment process?”

Richardson noted that on June 28, when the HDCA Board unanimously passed a motion to ask the Supreme Court of Canada for a ruling, the temperature in the Highlands reached a record 41°C.

While this case revolves around a 66-hectare plot of land in the small District of Highlands, Knapp says that this issue has much broader sociopolitical implications. “Our concern is a prior finding that climate change is irrelevant here may be extended to other areas of the Canadian legal landscape and impede Canada’s progress on climate change,” he said.

Gold-Rush-Era Policies:

Construction of the quarry would not have gone ahead if not for the Mines Act. Under current provincial legislation, companies can stake claims in ecologically sensitive areas, within First Nations territories, or even on private property. Therefore, mine workers are not subject to zoning bylaws, or the land-use plans that would apply to other industries.

NotOK — a group of Highlands citizens concerned with the effects of the quarry — encourages British Columbians to write to the following politicians and request that the Mines Act be updated:

In separate legal action, the District of Highlands is awaiting a decision from the B.C. Court of Appeal against OKI regarding the application of the District’s bylaws to OKI’s quarry site.

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