In a split 5-4 decision, the Supreme Court of Canada ruled last week that a mining project may not proceed without undergoing a federal environmental assessment. The decision turned on the EA of a mining project in the territory covered by the James Bay Treaty, signed in 1975 by the Cree and Inuit communities with the governments of Quebec and Canada.

Interestingly, the Treaty was groundbreaking at the time in its recognition of Aboriginal participation rights, but this time it was the federal government arguing that it was being shut out of the process.

Indeed, the top court had to rule on whether a conflict existed between the Treaty, which recognizes the province’s jurisdiction over environmental assessments, and federal law, which governs fisheries.

Quebec’s position was that Fisheries Canada could not refuse to issue a permit pending an evaluation of the environmental impacts of the project on fish habitat.

The Court held that, under the Treaty, the potentially harmful disruption or destruction of fish habitat could not escape scrutiny by the federal Fisheries Minister. The Court wrote:

“While there is no doubt that this project, considered in isolation, falls within provincial jurisdiction, a mining project anywhere in Canada that puts at risk fish habitat cannot proceed without a permit from the federal Fisheries Minister, which he or she cannot issue except after compliance with the CEAA.”

The ruling underlines some of the limits of streamlining the environmental assessment process.

News today that MiningWatch Canada won its Supreme Court case concerning the Red Chris mine.

Interestingly, the Supreme Court ruled that the project can move forward because the BC government had already given it the go ahead. But environmentalists are nonetheless claiming victory because the Court also ruled that from now on the federal government must conduct comprehensive assessments of all big projects over a certain size that might affect the environment, the people and the long term future of the area affected by a major project.

The decision says that the Canadian government violated the Canadian Environmental Assessment Act by narrowing down the project assessment in a way that has excluded public consultation. Henceforth, the government will have to follow its own law, must take a look at all the effects of major industrial projects, including large metal mines and tar sands developments.

Businesses continue to be discouraged in the absence of any concrete steps towards unifying Canada’s patchwork of requirements for environmental assessments (EA). Overlapping responsibilities between provincial, territorial and federal levels of government, not to mention competing agencies at all levels, have predictably produced unbearable delays in the regulatory process. Making matters worse at the municipal level, land use planning and EA processes lack proper coordination, which causes long delays.

Without a doubt, the dream of a “one project-one assessment” approach to conducting environmental assessments across Canada has still a ways to go. But as this Bennett Jones update argues, there are signs of promise, particularly in the energy and mining sectors. Indeed, renewed efforts by a CCME task force is proposing some recommendations for a harmonized approach to make decisions on projects.

And at the federal level, the Major Projects Management Office (MPMO), an agency that falls under the purview of Natural Resources Canada was established in 2007 to support Ottawa’s new approach to the regulatory review of major resource projects. The hope is that this new approach will ensures a more timely and accountable review process.

As the Globe and Mail recently reported, Alberta, with some prodding from the oil sands industry, is (albeit controversially) considering lowering the regulatory burden for companies looking for approvals for certain types of projects.

As for the construction industry and the roll-out of infrastructure stimulus money, well, the timing of Montreal’s latest mess couldn’t have come at a worse time.

In an attempt to ‘stimulate’ the economy, the feds may have stirred the pot a little too much. Their removal of environmental assessment on infrastructure projects tied to stimulus has raised some questions. Though removing EA requirements will certainly speed up some projects, it will likely be taken advantage of by companies planning to build otherwise questionable projects.

Not much more to contribute to this idea, but see the article here for more information. The money quote from Environmental Defence: “These changes to the law are like cutting the brake line to make a car go faster.”