Courtesy of McCarthy. Original article here.
In Highlands District Community Association v. British Columbia (Attorney General), 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.
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 inspector broad discretion to determine what information is required to support a permit application and whether any particular application is satisfactory. The court further noted that the Mines Act makes no reference to climate change or greenhouse gas emissions, instead focusing on “the protection and reclamation of the land, watercourses and cultural heritage resources affected by the mine”. The court compared this language to that of other provincial statutes, such as the Environmental Assessment Act, that refer to “greenhouse gas emissions”. The court reasoned that this distinction reflected a deliberate choice by the legislature not to make climate change impacts a required consideration under the Mines Act. Accordingly, although the court characterized as “overly broad” the inspector’s statement that “climate change is not relevant under the Mines Act”, it found the inspector’s interpretation of the factors required to be considered under the Mines Act to be reasonable.
It Was Not Unreasonable for the Inspector to Decline to Consider Climate Change Impacts
The parties agreed, given the inspector’s broad statutory discretion, he could have considered climate change impacts if he considered them relevant to his decision. The HDCA went one step further, however, and argued that the inspector’s broad discretion required him to consider all potential environmental impacts, and since climate change impacts are a key component of environmental impacts, the inspector was required to consider them. The HDCA also relied on Canada’s international commitments to reduce carbon emissions in the United Nations Framework Convention on Climate Change and the Paris Agreement, arguing that these commitments should inform the interpretation of domestic statutes absent express legislative guidance to the contrary.
The court rejected these arguments. It reiterated that the statutory scheme does not require consideration of climate change impacts. Further, it noted that the scheme gives the inspector broad discretion to decide which potential environmental impacts are relevant in each particular case, and that “[i]n such circumstances, it is not the role of this court to direct a statutory decision maker to consider a specific issue”. In addition, the court noted that the international commitments relied on by the HDCA had not been implemented domestically, nor had they attained status as rules of customary international law or peremptory norms, and there was no suggestion that the statutory scheme as interpreted and applied by the inspector would put Canada in breach of any international obligations. Accordingly, the court did not consider that these international commitments imposed any “significant constraint” on the inspector’s decision.
In sum, the court held that “[w]hile climate change is no doubt an important issue, it is not a key element in the text or purpose of the statutory scheme under the Mines Act …, nor is it a key element in the context of the permitting process for a quarry of the size and scope of that in issue in this appeal”. Accordingly, the court dismissed the appeal.
- Where a statutory scheme affords an administrative decision maker broad discretion to determine which considerations are relevant to its decision, and the scheme does not expressly require consideration of a particular factor, the decision maker may not be required to consider that factor. This is especially so where parallel statutory schemes expressly require such consideration.
- The relevance of climate change impacts in administrative decision making will depend on the context. In some contexts, the statutory scheme may expressly require the decision maker to consider such impacts. In other contexts, the statutory scheme may permit the decision maker to consider such impacts, without imposing a requirement. In the latter scenario, the relevance and weight of such impacts will depend on the particular circumstances, and courts will generally defer to the decision maker’s assessment.
- Some climate change-related issues are not suitable for determination by a court. For example, the court in Highlands stated that the HDCA’s submissions on the need for “individual change at the micro-level” in order to address climate change “seek a legislative response to a problem of global magnitude, but provide no basis for this court to intervene”.
 2021 BCCA 232 [Highlands].
 Highlands, at paras. 40, 47.