B.C. Court Of Appeal Provides Guidance On The Relevance Of Climate Change Impacts In Administrative Decision Making

• Published date: 22 June 2021
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Climate Change
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor and Connor Bildfell

In Highlands District Community Association v. British Columbia (Attorney General),¹ the British Columbia Court of Appeal considered whether a mines inspector's decision to approve a proposed small-scale rock quarry under the Mines Act was unreasonable because he declined to consider climate change impacts. In upholding the inspector's decision, the court concluded that, while the statute permitted the inspector to consider climate change impacts, it did not require him to do so. Highlands illustrates that courts will generally review discretionary administrative decisions on a deferential standard - even where climate change impacts are concerned - and that the relevance of such impacts will depend on the particular factual and statutory context.

Background

O.K. Industries Ltd. ("OKI") applied to the Minister of Mines, Energy and Petroleum Resources for a Mines Act permit to operate a small-scale rock quarry in the District of Highlands near Victoria, B.C. In his reasons for decision, the mines inspector reviewed the concerns and issues raised by petitioners who opposed the proposed quarry and stated: "Another issue raised was the impact of carbon emissions related to the quarry at this location and the impacts on global climate change. 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." The inspector concluded that there were no health, safety, economic, or environmental grounds to deny a permit, and was satisfied that the most relevant concerns had been adequately addressed. Accordingly, he granted the requested permit.

Chambers Judge's Decision

The Highlands District Community Association ("HDCA") applied for judicial review on the grounds that the inspector's failure to consider the proposed quarry's climate change impacts constituted an improper fettering of his discretion under the Mines Act and rendered his decision to issue a permit unreasonable. The chambers judge rejected these submissions.

Court of Appeal's Decision

Applying the reasonableness standard of review, the Court of Appeal concluded that: (1) the statutory scheme did not require the inspector to consider climate change impacts; and (2) it was not unreasonable for the inspector to decline to consider climate change impacts.

The Statutory Scheme Did Not Require the Inspector to Consider Climate Change Impacts

The court observed that the Mines Act gives the...