Chief Liz Logan in her own right on behalf of the Members of the Fort Nelson First Nation Petitioners v. Executive Director of the British Columbia Environmental, 2015 BCSC 1180

Editor’s note: Corrigendum released on September 17, 2015. Original judgment has been corrected with text of corrigendum appended. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fort Nelson First Nation v.

British Columbia (Environmental Assessment Office), 2015 BCSC 1180 Date: 20150707 Docket: S146183 Registry: Vancouver Between: Chief Liz Logan in her own right on behalf of the Members of the Fort Nelson First Nation Petitioners And Executive Director of the British Columbia Environmental Assessment Office, Canadian Silica Industries Inc. and Jeffrey Bond Respondents Corrected Judgment: The text of the judgment was corrected at paragraphs 28, 114, 119, 151, 153, 158, 164, 165, and 274 on September 17, 2015 Before: The Honourable Mr.

Justice Davies On judicial review from: A decision of the British Columbia Environmental Assessment Office, dated August 8, 2013 Reasons for Judgment Counsel for the Petitioner: J. Tate N. Hume Counsel for the Respondent, Executive Director of the British Columbia Environmental Assessment Office: E. Christie A. Peacock Counsel for the Respondent, Canadian Silica Industries Inc. and Jeffrey Bond: K. G. O’Callaghan D. Bryant Place and Date of Trial/Hearing: Vancouver, B.C. January 21 - 23 and April 1, 2015 Place and Date of Judgment: Vancouver, B.C.

July 7, 2015 Table of Contents INTRODUCTION .. 3 ISSUES .. 4 BACKGROUND .. 5 ANALYSIS AND DISCUSSION .. 27 A. The EAO’s

Interpretation and Application of Table 6 of the Regulation . 28 1. The applicable Standard of Judicial Review .. 28 2. Is the EAO’s

interpretation and application of the threshold criteria in Table 6 of the Regulation reasonable? . 30

a) Applicable Principles of Statutory

Interpretation .. 32 b) “Grammatical and Ordinary Sense” 35 c) “In its entire Context” 38

d) Entire Context: The Scheme and Object of the Act 40

e) Admissibility of expert reports on the Judicial Review of the Decision .. 43

f) Is Friends of Davie Bay Dispositive of the statutory

interpretation issues concerning the threshold criteria for environmental assessment of Sand and Gravel Pits under Table 6 of the Regulations? . 47

g) Conclusion .. 61 B. Did the Province breach the constitutional duty to consult with the FNFN in making the Decision? 63 1. Standard of Judicial Review .. 67 2. Did the EAO have a duty to consult regarding the Decision? . 69

a) Crown conduct: Is the Decision a “strategic high level decision” that triggered a duty to consult? . 70

b) The potential for Adverse Effects arising from the Decision .. 72 3. Has the EAO satisfied the duty to consult? . 77

SUMMARY .. 85 REMEDIES .. 85 INTRODUCTION [ 1 ] This judgment concerns the threshold production capacity that will trigger an environmental assessment under Table 6 (Mine Projects) of the Reviewable Projects Regulation , B.C. Reg. 370/2002 (the Regulation ) of the Environmental Assessment Act , S.B.C. 2002, c. 43 (the Act ) for a new Sand and Gravel Pit. That new pit is proposed for development by the respondents, Canadian Silica Industries and Jeffrey Bond (collectively CSI).

It is identified as the Komie North Mine. [ 2 ] The Komie North Mine will be located on lands within the traditional territory of the petitioner, Fort Nelson First Nation (FNFN) in an area about 80 kilometers northeast of the City of Fort Nelson near Komie Creek. [ 3 ] In addition to the Komie North Mine, CSI may eventually seek to develop up to five other new sand and gravel mines, all on lands within the FNFN’s traditional territory. [ 4 ] Three of those other potential mines would also be located in the area near Komie Creek and two would be located about 100 miles southeast of Fort Nelson, near Dazo Creek. [ 5 ] CSI’s development of the Komie North Mine and potentially the other five mines is intended for the extraction of “silica” or “frac” sand for use in the “hydraulic fracturing (or ‘fracking’) process” used in the extraction of natural gas. [ 6 ] Many existing and potential deposits of natural gas are located in or near the FNFN traditional territory, making the frac sand sought to be extracted by CSI a particularly valuable commodity due to proximity to the needs of the developers of gas deposits. [ 7 ] The FNFN is concerned about the potential environmental impact that the Komie North Mine may have upon its traditional territory and existing treaty rights.

Those concerns are exacerbated by the magnitude of the potential environmental impact of five additional mines in the same territory. [ 8 ] The FNFN has made those concerns known to the Environmental Assessment Office (EAO) as well as other governmental authorities from whom approval must be obtained by CSI for the development and operation of the Komie North Mine as well as the other potential mines identified by CSI. [ 9 ] More specifically, as it relates to this petition, the FNFN has asserted in numerous communications with the EAO that the Komie North Mine should be designated as a reviewable project under the Regulation . [ 10 ] However, on August 8, 2013, without consultation with the FNFN, the EAO determined (the Decision) that the Komie North Mine will not be a reviewable project. [ 11 ] The EAO reached that conclusion by accepting that the annual production capacity for the Komie North Mine, as determined and represented by CSI, does not meet the threshold criteria of Table 6 of the Regulation that would make the project reviewable.

ISSUES [ 12 ] The Decision and the circumstances that led to the EAO’s making of it are each the subject of this petition for judicial review. [ 13 ] The FNFN alleges that the EAO’s failure to designate the Komie North Mine as a reviewable project under the Regulation

resulted from an unreasonable

interpretation and application of the threshold criteria in Table 6. [ 14 ] The FNFN also alleges that in reaching the Decision the EAO and the respondent Province of British Columbia (the Province) breached the constitutional obligations of the Crown in Right of the Province (the Crown) to consult with the FNFN and, if necessary accommodate its interests when making the Decision which adversely affects its aboriginal treaty rights. [ 15 ] In response, the EAO asserts that the Decision both correctly and reasonably interpreted the threshold criteria in Table 6 of the Regulation applied in determining that the Komie North Mine is not a reviewable project. [ 16 ] In further response, although the Province does not dispute that the Province had a duty to consult with the FNFN with respect to the Komie North Mine generally, it says that additional consultation with the FNFN by the EAO specifically related to its

interpretation and application of the threshold criteria in Table 6 of the Regulation to the Komie North Mine was and is not required. [ 17 ] Determination of the issues raised by this petition engages consideration and

interpretation of: the provisions of the Act and the Regulation ; consideration of Treaty No. 8 (Treaty 8) as it relates to the Komie North Mine project; and, the applicable standard of judicial review to be applied by the court in respect of the Decision and in relation to the alleged breach of the Province’s duty to consult. [ 18 ] Further, while the Decision specifically under review relates only to CSI’s proposed development of the Komie North Mine, CSI’s potential development of additional frac sand extraction mining operations in the FNFN’s traditional territory is also relevant. [ 19 ] That is so because the

interpretation and application of the threshold criteria by the EAO with respect to the Komie North Mine will obviously impact environmental assessment decision making in relation to the all of the sand and gravel operations in the FNFN’s territory contemplated by CSI and especially the three located in the immediate vicinity of the Komie North Mine. BACKGROUND [ 20 ] The FNFN’s traditional territory is located in the northeast corner of British Columbia. It stretches to both the Yukon Territory and Northwest Territory borders on the north and the Alberta border on the east.

To the west it extends beyond the Kechika River. [ 21 ] The FNFN is a band as defined by the Indian Act , R.S.C. 1985, c. I-5. It has approximately 800 members who are governed by an elected Chief (presently the petitioner Chief Liz Logan) and council. [ 22 ] The ancestors of the FNFN adhered to Treaty 8 in 1910.

Treaty 8 consists of both oral and written terms. [ 23 ] Among other things, Treaty 8 provides: …And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading and other purposes. [ 24 ] In addition to those specific terms in evidence on this petition is a report from the Treaty Commissioners (who negotiated Treaty 8) to the Government of Canada which stated among other things: Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed.

The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits.

But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it. [ 25 ] That report went on to say: We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and that there was no fear of enforced military service. [ 26 ] Ms.

Lana Lowe, the Director of the FNFN’s Department of Lands and Resources (the “FNFN Lands Department”) has deposed that: 11. The traditional FNFN mode of life is based on our lands and rivers. Our families have always tended and harvested resources from the areas around their villages, using patterns known as a “seasonal round”. 12. These traditions and patterns are alive today. Among other things, FNFN members: (

a) travel throughout the Territory, by foot, boat, and other means; (

b) gather plants for food and medicine; (

c) build and maintain cabins; (

d) catch fish;

(

e) hunt animals such as moose, bear, rabbits, caribou; and (

f) trap furbearing animals such as beaver and lynx. 13. Each FNFN family has a lake and river area for use in the season round. For example, a family from N á duhi Deez é (Snake River) would travel from that village to Deer River, then down the Nelson River, up to Two Island Lake, over to the Tsea Lakes and River, then to Komie Lake, down to Kotcbo Lake, and then back to Snake River. 14. Our ancestors used knowledge developed over centuries to make decisions about these activities and otherwise manage the natural resources in the Territory. 15.

FNFN works hard to maintain, improve, and use this knowledge today because our members remain connected with and responsible for the lands, waters, plants, and animals that our ancestors tended for so long. [ 27 ] The FNFN Lands Department has been set up to promote environmental stewardship in the FNFN’s traditional territory.

Its responsibilities include dealing with referrals from Crown agencies and proponents of projects in relation to activities proposed to take place in the FNFN’s territory. [ 28 ] In May of 2010, in order to undertake exploration and development of a frac sand quarry in the Komie North area the respondent, Jeffrey Bond on his own behalf and on behalf of CSI submitted an application for a License of Occupation under s. 11 of the Land Act , R.S.B.C. 1996, c. 245 for a 210 hectare parcel of land adjacent to Komie Road. [ 29 ] On August 30, 2010, the Province provided a copy of that application to the FNFN Lands Department. [ 30 ] By letters dated October 13, 2010 and December 9, 2010, the FNFN Lands Department advised the Province’s Integrated Lands Management Bureau of concerns with respect to potential adverse impact of the proposed Komie North Mine on the FNFN’s rights and interests.

Among other things the FNFN sought “an adequate and meaningful consultation process” and the provision of detailed documentation concerning CSI’s proposal.

Those letters also referenced concerns about the lack of an environmental assessment for the project. [ 31 ] On March 24, 2011, a tenure offer for a five year term commencing March 21, 2011 for the area which comprises the site that is now the proposed location of the Komie North Mine was made to CSI by the Ministry of Forests, Lands and Natural Resources Operations (Ministry of FLNRO) for a License of Occupation comprised of an investigative phase and a production phase. [ 32 ] On May 24, 2011, the Ministry of FLNRO advised the FNFN that a License of Occupation for 199.9 hectares comprising the Komie North Mine site had been approved for a term of five years for quarry purposes.

The letter also stated that: … A referral letter was sent on August 30, 2010 requesting comments on how this application may impact your rights. A faxed letter was received on October 13, 2010 that did not specifically outline how the rights of Fort Nelson First Nation would be impacted by approving this application.

In the absence of site specific comments we have been left to use existing knowledge of the area and previous consultation to mitigate the low potential impact to rights. [ 33 ] No mention in that correspondence was made in respect of the December 9, 2010 letter from the FNFN that had also raised the concerns addressed by the FNFN in its October 13, 2010 letter. [ 34 ] While processing of its application for a License of Occupation for the Komie North Mine was underway, CSI had also made applications for Licenses of Occupation relating to sand and gravel quarries for two other sites in the vicinity of the Komie North Mine as well as two in the Dazo Creek area. [ 35 ] Those additional four applications were brought to the attention of the FNFN Lands Department before it was advised on May 24, 2011 of the approval by the Ministry of FLNRO of the License of Occupation of the Komie North Mine site. [ 36 ] After approval of the License of Occupation of the Komie North Mine site was made known to the FNFN it was also notified in August of 2011 of an application for a License of Occupation for a fourth sand and gravel quarry in the Komie Creek area sought by CSI. [ 37 ] The total land area for the six Licences of Occupation for sand and gravel quarrying sought by CSI is approximately 4,800 acres. [ 38 ] In addition to the total of six Licenses of Occupation for sand and gravel quarries applied for by it CSI also applied (on July 11, 2011) to the Province for an investigative use permit over 216,368 hectares of land in the FNFN’s traditional territory that also encompassed CSI’s four applications in the vicinity of Komie Creek. [ 39 ] CSI’s investigative permit application was forwarded by the Province to the FNFN Lands Department on September 11, 2011 with the advice that the permit would be used to “identify potential sites for frac sand extraction”. [ 40 ] At that time and up until the hearing of this petition there were no frac sand quarries in the FNFN’s traditional territory although other traditional sand and gravel pits did exist. [ 41 ] On June 13, 2012, Chief Kathy Dickie, then Chief of the FNFN wrote to the Honourable Terry Lake, then the Minister of Environment for the Province (the Minister) “formally” requesting that the Minister designate the four sand and gravel quarries

proposed near Komie Creek as well as the two Dazo Creek sites for which Licenses of Occupation had been sought by CSI as reviewable projects under s. 6 of the Act . [ 42 ] Among other things, in that letter the Chief Dickie wrote concerning the four Komie North applications and proposed quarries: The Komie North Applications As you can see in the table attached as

Schedule 1 to this letter, there are five applications for the Komie North area. Please see the attached map (Schedule 2 - Komie North) which sets out the location of these applications and demonstrates their geographic proximity to each other…All five of the Komie North applications are from a single proponent, Jeffrey Bond and Canadian Silica Industries Inc. (“Bond-C5II”), for the same purpose - quarrying sand and gravel…the other applications are for licences of occupation and cover 1,000.6 ha. As you can see on the

Schedule 2 map, applications 8015273, 8015425 and 8015352 are all contiguous. Application 8015443 is 1.9 km away from the site of those three applications. Applications 8015425 and 8015352 have estimated production limits of 240,000 tonnes per year. Application 8015443 has an estimated production limit of 249,000 tonnes per year. No production estimate is provided for 8015273, but it seems reasonable to assume that it would be similar to the other applications put forward by the Bond-C5Il proponent in Komie North and Dazo Creek which all have production estimates between 240,000-249,000 tonnes per year.

Applications 8015425 and 8015443 indicate that gravel will also be quarried, but It is not clear whether the gravel is included in the production estimates, as it should be. This may increase the estimates. Notably, all of these estimates fall just short of the production capacity criteria set out in Table 6 (Mine Projects) of the EAA's Reviewable Project Regulation (“ Regulation "). Under the Regulation, any sand and gravel pit project which produces ≥ 1,000,000 tonnes of sand or gravel or both over a period of ≤ 4 years is subject to an environmental assessment ("EA").

Also under the Regulation, any construction stone and industrial mineral quarry project which produces it 250,000 tonnes/year and is regulated as a mine under the Mines Act is subject to an EA. All four applications note that they will utilize the same processing facility that is to be situated on the land subject to application 8015352. [ 43 ] Chief Dickie also wrote: Environmental, social, heritage and health effects It is likely the projects these applications represent will have significant adverse environmental effects and may have significant adverse social, heritage and health effects.

It is difficult to set out many details in this regard because more information is required from the proponents, and assessments of the values [e.g. ecological and cultural) in these areas need to be undertaken, before effects can be determined. Without an EA, much of this information may not be provided and these assessments may not be undertaken. However, the information available points to the potential for significant adverse environmental effects.

These applications affect very large areas: the four Komie North applications affect 1,000.6 ha (= 2,500 acres) and the three remaining Dazo Creek applications affect 7,560 ha (= 18,900 acres). The estimated rates of production for each of the applications taken alone is nearly sufficient to trigger an EA under the Regulation ; any two taken together would trigger an EA. This raises questions as to the veracity of the estimates - were they purposefully under-estimated to avoid triggering an EA?

This is particularly so as all of the applications have approximately the same production estimates, despite a tremendous variance in the size of the areas affected by the applications (from 50.7 to 4,124 ha.). Presumably the thresholds in the Regulation are set at levels at which there is concern that projects could result in adverse effects which should be assessed and mitigated through the EA process.

Further, the Dazo Creek applications are adjacent to RRAs which have been temporarily set aside from development because they represent remnant core caribou habitat; extensive industrial development on these adjacent lands could significantly affect the value of this scarce habitat, particularly given the scale of these developments. Also, a proper cumulative effects assessment would require these applications be considered together in a single EA. The lands these applications affect are within FNFN's territory and are areas where members practice their treaty rights.

As an example, the Dazo Creek proposals are set between two FNFN village sites - Fontas and Kantah, which is a strong indicator that the Dazo Creek area subject to these applications has seen intensive traditional use over thousands of years and to this day. Both the Komie North and Dazo Creek areas are used for hunting, fishing, trapping, habitation, gathering and travel. These areas contain important habitats supporting animals we are reliant on for the practice of our treaty rights.

This information on potential effects is, by necessity, provisional only and very general as we do not have (nor do we believe the Province has) sufficient information from the proponents to properly evaluate these proposals at this time. Further, we have not undertaken any site and project specific assessments to determine what FNFN interests may be affected and to what extent they may be affected. We only provide this general information to assist you in your inquiries as to whether you should exercise your discretion under the EAA to designate these applications as a reviewable project.

This information Is not provided in the context of a consultation on these applications as it is not yet clear how these projects will be assessed by the Province and how FNFN and the Province will consult on these applications (e.g., under what regulatory framework).

Certainly, no proper consultation about impacts to our interests can be achieved when these projects are proposed in such a fragmented fashion. [ 44 ] The total area of concern addressed by Chief Dickie with respect to the Dazo Creek applications (7,650 hectares) included three applications by proponents other than CSI. [ 45 ] Chief Dickie also went on to express concerns with “project splitting” which she asserted should require designation of the projects as reviewable projects under the Act and Regulation.

Specifically with respect to the four Komie North vicinity applications she wrote: Project Splitting It would appear these applications have been designed and submitted in such a fashion as to avoid triggering an EA through project splitting, by ensuring that the estimated production capacity for each application "split off” from the whole (all applications taken together) falls just short of the EA threshold for projects of this type in the Regulation .

It is our view that the four Komie North applications for licences of occupation are all a single reviewable project for the following reasons (summarized here but as set out in more detail above):

• three applications are contiguous and a fourth is only 1.9 km. away; • all are proposed by the same proponent - Bond-CSlI; • all are for the same industrial activity-quarrying sand and gravel; and • all of the product quarried will be processed at the same facility.

Further, the proponent has explicitly stated in correspondence to us that their applications in Komie North "may all be considered effectively as one application" and their application materials note that each application complements the others (e.g. the 8015443 application notes "this application compliments [sic] our Komie North, Cabin-Komie North and Brandt-Komie North applications that were previously submitted..."). [ 46 ] In requesting designation as a reviewable project Chief Dickie concluded by stating :

Summary It is FNFN's request of you that the applications for Komie North and Dazo Creek be designated a single reviewable project under the EAA because of the interrelatedness of these applications. These applications represent projects which may have significant adverse environmental, social, heritage and health effects, given the scope of the industrial activity proposed.

Designation of these applications as a reviewable project is in the public interest, as it will enable the engagement of the public in a proper assessment and it will uphold the public interest in environmental protection that the EA process represents. It is also in the public interest to ensure the EA process is properly triggered and that efforts to circumvent it do not succeed. Thank you for your time and attention to this matter. We look forward to hearing from you as to your decision on an EA of these applications.

If you have any questions, please do not hesitate to contact us [ 47 ] Chief Dickie’s letter of request was responded to by Ms. Karen Christie, Executive Project Director of the EAO on February 8, 2013. In responding she wrote: On June 20, 2012, Fort Nelson First Nation wrote to the Honourable Terry Lake, Minister of Environment, to request that the Minister designate seven frac sand mine proposals near Dazo Creek and Komie Creek in northeast BC as a reviewable project (or projects) pursuant to

section 6 of the Environmental Assessment Act (Act). The frac sand mine proposals are described in seven License of Occupation applications under the Land Act . I am writing to let you know that the Minister has decided not to designate the frac sand mine proposals as a reviewable project (or projects) under the Act. The Minister concluded that the proposals are preliminary, and not yet sufficiently defined to be considered proposed projects. As such, it is premature to assess their suitability for designation as a reviewable project (or projects) under

section 6 of the Act. Environmental Assessment Office (EAO) is of the opinion that the six frac sand mine proposals described in the License of Occupation applications jointly submitted by Jeffrey Bond and Canadian Silica Industries Inc. may, when further advanced in terms of design, constitute a single project that requires an environmental assessment (EA).

EAO has informed Jeffrey Bond and Canadian Silica Industries Inc. of the Minister's decision and EAO’s opinion by letter, and has requested that they contact EAO prior to initiating the development stage of any of the six Licences of Occupation, should they be issued by Ministry of Forests, Lands and Natural Resource Operations (FLNRO), in order to determine whether an EA will be required [Emphasis added.] [ 48 ] On December 1, 2012, three months before that response on February 8, 2013 to the FNFN’s designation request of June 13, 2012, CSI had, unbeknownst to the FNFN, already submitted a Notice of Work application for the Komie North Mine to the Ministry of Energy and Mines (the Mines Ministry) for a permit under the Mines Act, R.S.B.C. 1996, c. 293 . [ 49 ] Among other things, the Komie North Mine Notice of Work application stated that the estimated annual extraction form the site was 240,000 tonnes per year. [ 50 ] On May 2, 2013 the Ministry of FLNRO notified the FNFN that CSI had submitted a Sand and Gravel/Quarry Operation and Notice of Work application for the Komie North Mine and had also applied for an Occupant License to Cut. [ 51 ] That notification enclosed documents relevant to the proposed development including the Notice of Work application that CSI had submitted to the Mines Ministry on December 1, 2012.

Also included with the notification were copies of: 1) an “Updated Management Plan (Development Plan)” dated March 13, 2013; and 2) a “Borrow Pit and Reclamation Plan for Komie North Project” dated November 28, 2012 prepared by CSI’s consultant AMEC Environment and Infrastructure. [ 52 ] CSI has submitted (at para. 23 of its written submissions) that: 23.

The Updated Management Plan differed from the Preliminary Management Plan, in that it included a detailed mine plan, a more detailed water management plan, a reclamation plan, and better defined estimate of the quantity of saleable material and included the results of further investigative work, including a non-invasive surface investigation, a sonic drill investigation and an AIA [Archeological Impact Assessment]. The description of the production capacity of the mine in the Updated Management Plan is: Based upon current market conditions, 240,000 tonnes of product will be produced annually.

... Based on a production rate of 240,000 tonnes of product per year, the Phase I, 5 years of mining would produce 1,200,000 tonnes of product sand per year and 950.000 tonnes of waste gravel material to be backfilled into the pit. The remaining resource at the 4.3m extraction depth for Phase II, years 6-12 is estimated at 1,764,000 tonnes and 1,386,000 waste backfill. [ 53 ] The Executive

Summary of the Borrow Pit and Reclamation Plan stated, amongst other things, that: The Komie North Sand Project consists of approximately 206.5 hectares, which includes three separate pits, processing plant, light industrial area and a truck haul road between pits and the processing plant. The land is under Crown Lease Tenures. The property has been drilled by 28 drill holes and test pits and the sand and gravel resources extensively sampled and tested. The finished product after processing will be washed and dried sand used in the fracking industry.

The boulders, grave, silt and clay material extracted as run-of- mine material and processed through the plant as waste material will be used as backfill after mining extraction is completed. The filler press material from de-watering process at the wash plant will also be deposited as backfill in the mine out areas. … The sand and gravel deposit to be exploited is up to 15 m thick; however only product down to the water table is currently planned to be extracted; additional extraction will require art assessment of site hydrogeology.

Annual production will not exceed 240,000 tonnes. [ 54 ] On June 3, 2013 the FNFN Lands Department responded to the Ministry of FLNRO’s letter of May 2, 2013, and the documentation provided with it. [ 55 ] In that response Ms. Lowe complained about what she asserted was an inadequate review period and also what she claimed were incomplete and inaccurate application materials provided by CSI. She also provided particulars of those assertions. [ 56 ] Concerning the need for an environmental assessment that had first been requested in June of 2012 when Chief Dickie wrote to the Minister Ms.

Lowe wrote: Referral to the EAO In the EAO's letter of February 8, 2013, on behalf of the Minister of Environment, the EAO stated its opinion that the frac sand proposals of the Proponent may, "when further advanced in terms of design", constitute a reviewable project subject to an environmental assessment ("EA"). In this letter, the EAO requested notification from the Proponent "prior to initiating the development stage of any of the six Licences of Occupation, should they be issued," to enable the EAO to determine whether an EA would be required.

The EAO needs to be made aware that the Proponent has initiated the development stage of its only existing Licence of Occupation for the Komie North parcel, as the Proponent has applied for the Authorizations in order to allow it to proceed with construction of a frac sand processing facility on that parcel. Please confirm that the EAO has been made aware of this development application. The EAO must have the opportunity to assess these current applications of the Proponent's.

As part of its application to proceed to development on the Komie North parcel, the Proponent has amended its Development Plan in order to provide more detail on its proposed development activities. The production estimates in the amended Development Plan considerably exceed the threshold necessary to classify the proposed project as reviewable under the Reviewable Projects Regulation (the " Regulation ") under the EAA, and leave no doubt that the Proponent's proposal for the Komie North parcel must be subject to an EA, and receive approval under the EAA, before further provincial approvals are issued.

Table 6 of the Regulation establishes that a sand and gravel pit is a reviewable project subject to an EA if the new pit facility: ... will have a production capacity of (a) ≥ 500 000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or (

b) over a period of ≤ 4 years of operation, ≥ 1000 000 tonnes of excavated sand or gravel or both sand and gravel, The amended Development Plan states at page 3, that during the first five years of mining on the Komie North parcel, the Proponent will excavate an estimated 1,200,000 tonnes of sand and 950,000 tonnes of gravel. This works out to an estimated extraction of 430,000 tonnes of sand and gravel annually, or 1,720,000 tonnes of excavated sand and gravel over four years.

It is abundantly clear that those numbers exceed the threshold in the Regulation of 1,000,000 tonnes of excavated sand and gravel over four years. Thus the Proponent's proposed project is a reviewable project under the Regulation which is subject to an EA. The Proponent has apparently tried to circumvent the threshold in the Regulation by only counting sand in the project's production estimate and characterizing the gravel as "waste”. This is inaccurate in both law and fact.

The Regulation clearly sets the threshold number for a reviewable project based on the tonnage of excavated sand and gravel, counted together. What the proponent chooses to do with the sand or gravel once it is excavated does not affect the determination of a reviewable project under the Regulation . In any event, the Proponent clearly intends to put the gravel to use.

The amended Development Plan states at page 4 that "gravel material from the processing of the sand will be used as road base and topping" and later states at page 9 that "the roads and areas surrounding all of the plant's facilities will be gravelled for safety". It is clear that the estimated excavation of all sand and gravel from the Komie North parcel must be included in the determination of whether the Proponent's proposal constitutes a reviewable project according to the thresholds set out in the Regulation .

It is equally evident that, according to its own estimates, the Proponent proposes to excavate an amount of sand and gravel that classifies its proposal as a reviewable project, which must be subject to an EA before any further provincial approvals for the development can be issued.

It is critical that the EAO review this application and determine the applicability of the EAA to the proposed project before FLNRO proceeds to issue any Authorizations respecting the Proponent's applications, FNFN will be writing to the EAO requesting the EAO assess whether the Proponent's current applications for the Komie North parcel constitute a reviewable project under the EAA (and making the argument as set out above that they do) and that the EAO communicate to the respective provincial agencies that the Proponent's

proposal is a reviewable project and, as such,

section 9 of the EAA prevents the issuance of the Authorizations sought until an EA certificate has been issued. In closing Ms. Lowe stated: FNFN looks forward to answers from the province as to the issues raised in this correspondence: Has the EAO been provided with notice of and full information concerning the Proponent's applications that are the subject of this referral? What is the province's rationale for determining that this project could be authorized as a "phased" tenure?

What is the status of the province's internal consideration as to whether the Proponent's frac sand extraction proposals should be treated as a major project? We also look forward to receiving complete and corrected materials to support the applications in question. At an appropriate time, FNFN and the province will need to meet to determine what a mutually-agreeable process for consultation on the proposed Authorizations should be. However, before that occurs, these current applications of the Proponent must be forwarded to the EAO.

Then, further to the EAO's letter of February 8, 2013 on this matter, a review must be undertaken by the EAO and a decision taken by the EAO with respect to the application of the EAA to this project. As noted earlier, FNFN will be engaging directly with the EAO and the Minister of Environment on the application of the EAA to the Proponent's Komie North project and the current applications.

Until such time as that review has been completed, and the EAO has communicated the results of their review, the province (FLNRO) is not in a position to process this referral as to do otherwise could be contrary to the EAA , We look forward to your assurance that a hold will be put on FLNRO's processing of this referral until such time as the EAO’s decision has been taken. [ 57 ] In a letter dated June 18, 2013, Ms. Lowe also wrote to Ms.

Christie of the EAO addressing many of the same concerns raised with the Ministry of FLNRO in her letter of June 3, 2013, concerning the development of the Komie North Mine and the need for an environmental assessment as a reviewable project. [ 58 ] On June 19, 2103, Ms. Christie responded to Ms. Lowe by advising that: …EAO is aware of the proponent’s application to move to the development stage of its License of Occupation for the Komie North parcel. Mike Peterson is the Project Assessment Manager working on this file, and is discussing the application with the project proponent, MEM and FNLR.

Mike will respond to Fort Nelson First Nation once he has the required information. [ 59 ] On July 19, 2013, CSI sent a letter to Mr. Peterson requesting “confirmation that the Komie North Project is not reviewable”. [ 60 ] In that letter CSI wrote: The purpose of this letter is to seek confirmation that, the Komie North Project (LOO 815115) is not a reviewable project under the Reviewable Projects Regulation .

This letter also provides clarification on the production level and product use stated in the reclamation and development plan submitted to Forests, Lands and Natural Resource Operations (FLNRO) for LOO 815115. We have reviewed the proposed project against the Reviewable Projects Regulation . Our review concludes that the project falls below the thresholds. The threshold for a Sand and Gravel Pit under the Reviewable Projects Regulation is:

(1) A new pit facility that will have a production capacity of (a) > 500 000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or (

b) over a period of < 4 years of operation, >1 000 000 tonnes of excavated sand or gravel or both sand and gravel. The production level for products sold and used (sand and gravel) from the operation will be ≤ 240 000 tonnes per year (or 960 000 tonnes over 4 years). The total area of disturbance in the first 12 years of operations as shown in the mine plan will be approximately 77.5 ha. As the production level for this proposed project will not exceed 1 000 000 tonnes of excavated sand or gravel (or both) over any 4 year operation period, the project does not trigger the Reviewable Projects Regulation .

In Appendix E of the development and reclamation plan, under the processing plant section, we had stated we will use the waste gravels from the processing of the sand for road base and topping. The total amount of any sand and/or gravel from this project that is sold as product, or used in construction or maintenance material, will not exceed 240 000 tonnes/year. In the development and reclamation plan, we have stated in years 1-5 (5 years of operations) that the production from the facility will be 240 000 tonnes per year or 1 200 000 tonnes total for 5 years.

In phase 2, years 6 - 12 (7 years of production), 240 000 tonnes per year will be produced or 1 680 000 tonnes total for the next 7 years. The document contains an error in the gross tonnage for phase 2 stating 1 764 000 tonnes of sand will be produced. Please accept the correction to 1 680 000 gross tonnes of product. We are sending a letter of amendment to fix this error in the development and reclamation plan to FLNRO which is dated July 19, 2013.

As per the Feb 8th, 2013 letter from EAO, should we decide to initiate the production phase of additional five Licences of Occupation we submitted to FLNRO, we will contact EAO prior to submitting NoW application(

s) to the Ministry of Energy and Mines. [ 61 ] The FNFN was not provided with a copy of that letter when it was received by the EAO. [ 62 ] On July 19, 2013, CSI also sent a letter to the Ministry of FLNRO seeking to amend its Borrow Pit and Reclamation Plan for the Komie North Project to accord with its communications of the same date to Mr. Peterson of the EAO.

[ 63 ] The FNFN was also not provided with a copy of that letter when it was received by the Ministry of FLNRO. [ 64 ] On August 8, 2013, without any consultation with the FNFN, Mr. Peterson authored the Decision in which he advised CSI : I am writing in response to your letter of July 19, 2013, regarding the proposed Komie North Project (proposed Project). In your letter you request confirmation of whether the proposed Project constitutes a reviewable project for the purposes of the Environmental Assessment Act (Act).

Project proponents are responsible for making their own determination as to whether or not their proposed project falls within the thresholds set out in the Reviewable Projects Regulation (the Regulation). While Environmental Assessment Office (EAO) is willing to provide its position in this regard, nothing in this letter should be construed as advice respecting the application of the Regulation to the proposed Project. The Reviewable Projects Regulation (Regulation) prescribes the criteria for when projects are reviewable under the Act.

Under the Regulation, the proposed Project would be a sand and gravel pit, and the criteria for reviewability are provided in

Part 3 of the Regulation. A new sand and gravel pit facility constitutes a reviewable project if the facility will have a production capacity of: (a) ≥ 500,000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or (

b) over a period of ≤ 4 years of operation, ≥ 1,000,000 tonnes of excavated sand or gravel or both sand and gravel. According to the information provided in your letter of July 19, 2013, for the proposed Project, ≤ 240,000 tonnes per year ( ≤ 960,000 tonnes over 4 years) of sand and gravel products would be sold or used as construction or maintenance material for the operation.

Based on this information, the proposed Project does not meet the criteria for a reviewable project under the Regulation . [Emphasis added.] [ 65 ] The Decision was copied to the Mines Ministry as well as the Ministry of FLNRO but not to the FNFN. [ 66 ] On September 13, 2013, after the Decision had, unbeknownst to the FNFN already been made on August 8, 2013, the FNFN wrote to the Ministry of FLNRO (with a copy to the EAO) advising that the FNFN had still not received a full response to its June 3, 2013 correspondence. [ 67 ] In that communication the FNFN stated the Ministry of FLNRO should not “process further or approve the [Komie North Mine Project] until full responses to its outstanding correspondence had been given “by both the Ministry of FLNRO and the EAO (concerning the FNFN’s June 18 letter)”; and “a full consultation with the FNFN has been conducted and concluded by the crown on this application”. [ 68 ] On September 26, 2013, still without knowing that the Decision had already been made, Ms.

Lowe again wrote to the Ministry of FLNRO (with a copy to Ms. Christie at the EAO) stating: … We note at the outset that FNFN has not received any response from FLNRO to the numerous issues raised in our letter of June 3, 2013 respecting the Proponent's Applications.

Nor have we received any response to our June 18, 2013 letter to the BC Environmental Assessment Office ("EAO") concerning the Applications (cc'd to FLNRO) although we did receive an email notification from the EAO that they were aware the Proponent was moving one of its seven applications in FNFN territory to the development stage, that they were reviewing it and would respond to FNFN in due course.

These responses are outstanding and it is our view that FLNRO is not in a position to further process or approve the Applications until such time as substantive responses to these letters have been received, and the concerns and issues set out in them (including consultation with FNFN) have been meaningfully addressed with FNFN. FNFN has significant ongoing concerns regarding the Applications and all of the proposals the Proponent has for frac sand mine development in our traditional territory.

These include the Proponent's attempts to split a large project into several separate proposals and applications in an apparent attempt to avoid environmental assessment (as addressed in our June 20,2012 letter to Minister Lake and in numerous letters to FLNRO); what appears to be a misrepresentation or misunderstanding respecting the thresholds for triggering EAs under the BC Environmental Assessment Act and Reviewable Projects Regulation (the "Regulation"); the need for meaningful consultation between the Crown and FNFN on these proposed developments; the significant impacts to our constitutionally-protected Treaty rights that have the potential to arise out of the development that is proposed; and, as noted above, fulsome responses to the issues raised in the above-noted correspondence.

The Proponent's Amendment does not affect the application of the Regulation to the Applications; an EA is still triggered for the Applications due to the amounts of sand and gravel proposed to be extracted by the Proponent, even with the Amendment taken into account.

It is not the amount of material that will be "sold as product" or "used as construction or maintenance material" that is relevant to the threshold which triggers an EA for a sand and gravel pit under the Regulation - it is; the amount of material excavated (as set out in some detail in our June 3 and June 16, 2013 letters to FLNRO and the EAO respectively).

Table 6 of the Regulation establishes that a sand and gravel pit is a reviewable project subject to an environmental assessment if the new pit facility: ... will have a production capacity of (a) ≥ 500 000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or (

b) over a period of ≤ 4 years of operation, ≥ 1 000 000 tonnes of excavated sand or gravel or both sand and gravel.

On the basis of the numbers provided by the Proponent in its Development Plan for the Applications, including the Amendment, ≥ 1,720,000 tonnes of material will be excavated over a four-year period (1,720,000 tonnes on average over four years in Phase 1 and 1,752,000 tonnes on average over four years in Phase II) when both the sand and gravel to be excavated are taken into account, as is required by the Regulation.

It is clear an EA is required for the development that is subject to the Applications due to the fact that over 1,000,000 tonnes of material will be excavated in a four-year period (leaving aside for the time being FNFN's view that all of the Proponent's frac sand mine proposals in our territory need to be considered as a single project due to their inter-relatedness, to enable proper assessment and consultation).

As noted, FNFN looks forward to receiving responses from the provincial Crown (FLNRO and EAO) to our June, 2013 correspondence and to our further discussions on these Applications as they affect FNFN's rights and interests. [Emphasis added] [ 69 ] On September 30, 2013 (in a letter incorrectly dated September 30, 2012) Mr.

Peterson of the EAO for the first time after the Decision had been made almost two months earlier responded to the FNFN’s outstanding correspondence and concerns. [ 70 ] Most germane to the issues requiring determination on this petition for judicial review of the Decision are the following statements made by Mr.

Peterson in that letter concerning issues raised by the FNFN with the EAO and the other involved ministries more than three months earlier: I am writing in response to your June 18, 2013 correspondence to Environmental Assessment Office (EAO) regarding the application of Jeffrey Bond and Canadian Silica Industries Inc. (the Proponent) to move to the development stage of the License of Occupation (LOO) for land file number 8015273 (Komie North parcel).

The Proponent proposes to construct and operate a sand and gravel pit that would produce ≤ 240,000 tonnes per year of sand and/or gravel for sale and use for approximately 12 years. The total area of disturbance, as described in the Proponent’s Borrow Pit and Reclamation Plan (the Plan), would be approximately 78 hectares. Within your letter you posed several questions and

interpretations to EAO that I would like to address and clarify: 1. Fort Nelson First Nation (Fort Nelson) requests confirmation that EAO has been notified by the Proponent to move to development on the Komie North parcel. As requested by EAO, both the Proponent and representatives from the Ministry of Forests Lands and Natural Resource Operations (FLNR) notified EAO that the Proponent has applied to develop the Komie North parcel.

FLNR provided EAO with the Plan for the proposed Project as well as the accompanying documentation, including an amendment to the Plan (dated July 19, 2013) which clarifies the production estimates. 2. Fort Nelson expresses its strong view that the proposed Project constitutes a reviewable project subject to environmental assessment under the Reviewable Projects Regulation (the “Regulation") of the Environmental Assessment Act.

Under the Regulation, a sand and gravel pit is a reviewable project if it is: A new pit facility that will have a production capacity of: (a) > 500 000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or (

b) over a period of < 4 years of operation, > 1 000 000 tonnes of excavated sand or gravel or both sand and gravel. It is EAO’s understanding that Fort Nelson is of the opinion that all material excavated at the site should be included in the calculation of production capacity. EAO’s view is that production capacity includes sand and gravel produced for sale or for use. Production capacity does not include that portion of the excavated material which would not be sold or used in the operation .

The context of the Environmental Assessment Act favours thresholds that can be applied by proponents in advance without undue speculation. Estimates for product and non-product material are generally ascertained from low intensity sampling and testing. Non- product material can include overburden, silts, and clays and can be difficult to accurately measure. For the proposed Project, the Proponent has confirmed that both sand and gravel products (for sale and/or use within the proposed operation) would be included in the ≤ 240 000 tonnes per year production.

After consideration of this information and the project description, it is EAO’s position that the proposed Project does not meet the criteria for a reviewable project under the Regulation . While the EAO is willing to provide its position in this regard, nothing in this letter should be construed as legal advice, and the Proponent has been advised that it is responsible for making its own determination as to whether the proposed Project falls within the thresholds set out in the Regulation . 3.

Fort Nelson expressed concerns regarding licensing and permitting under FLNR and Ministry of Energy and Mines (MEM) I understand that Greg Belyea at FLNR has responded or will be responding to your concerns regarding the use of a phased licence of occupation. EAO is aware of the 5 additional applications for LOO that were submitted by the Proponent to FLNR. FLNR will notify EAO if any of the additional LOO’s are granted. The Proponent has also committed to contacting EAO prior to submitting Notice of Work application(

s) to MEM for any of the submitted LOO. Should the Notice of Work for the proposed Komie North operation be granted by MEM, any subsequent Notices of Work submitted by the Proponent may potentially be considered a modification to the Komie North operation. The criteria to determine it a modification of a

sand and gravel pit would be subject to an environmental assessment is defined in s. 8(2) of the Reviewable Projects Regulation. [Emphasis added.] [ 71 ] Not surprisingly the FNFN took issue with the Decision and the EAO’s

interpretation and application of the threshold criteria in Table 6 of the Regulation in deciding that the Komie North Mine Project did not meet the threshold requirement for designation as a reviewable project. [ 72 ] In a letter dated October 22, 2013, Ms. Lowe wrote to Ms. Christie of the EAO advising: … We disagree with the EAO's position that, under the Regulation production capacity of a Sand and Gravel Pit does not include the portion of the excavated sand and gravel that would not be "sold or used in the operation".

The Regulation clearly sets the threshold for a reviewable project based on the volume of "excavated sand or gravel or both sand and gravel". Under the Regulation, what a proponent chooses to do with the sand or gravel once it is excavated is irrelevant. In any event, as we noted in our letter of June 18, the Proponent has indicated that it intends to put the excavated gravel or some of it to use. The Proponent intends to excavate a quantity of sand and gravel in excess of the threshold established in

section 8 of the Regulations. As a result, the project is a reviewable project. In addition to being in accordance with the plain language of the Regulation, this

interpretation is consistent with the scheme and object of the Environmental Assessment Act and the Regulation. The purpose of the Regulation is to provide that projects of a size and scope that are likely to cause significant adverse environmental effects are subject to an environmental assessment. The Regulation accomplishes this by establishing thresholds in relation to critical aspects of certain classes of project. The Regulation defines the threshold for Sand and Gravel Pits by reference to the amount of "excavated sand or gravel or both sand and gravel". This accords with the object of the Regulation.

Put simply, the excavation sand and gravel causes adverse environmental effects. The greater the volume of sand and gravel excavated, the greater the effects. The fact that a proponent may have little use for excavated gravel has little or no impact on the environmental impact of the excavation and therefore does not affect the issue of whether the project is a reviewable project. The only rationale offered for the EAO's position does not withstand scrutiny.

The EAO notes that it may be difficult to ascertain at the outset of a proposed sand and gravel pit project the quantity of extraneous material such as "overburden, silts, and clays". No one is suggesting that the proponent need measure these materials. The Regulations require and depend upon an estimate of the volume of sand and gravel to be excavated. There is no evidence that it would be difficult for the Proponent to ascertain the quantity of gravel in the Komie North parcel. On the contrary, the Proponent has done so. The EAO's

interpretation of the Regulation as excluding the volume of excavated gravel is unreasonable. This

interpretation is contrary to the express language of the Regulation and at odds with the scheme and object of the Environmental Assessment Act and the Regulation. The Regulation is clear that a Sand and Gravel Pit is a reviewable project if the volume of excavated sand and gravel exceeds the stated threshold. The Proponent proposes to excavate an amount of sand and gravel from the Komie North parcel that exceeds the threshold in the Regulation. Accordingly, this project is a reviewable project, which must be subject to an environmental assessment before any further provincial approvals can be issued.

FNFN requests that the EAO communicate to the provincial permitting authorities that the Proponent's proposal for the Komie North parcel is a reviewable project and, as such,

section 9 of the Environmental Assessment Act prevents the issuance of the Licence to Cut and Notice of Work permit until an environmental assessment certificate has been issued in respect of this project. [ 73 ] On January 14, 2014, Mr. Peterson replied to Ms. Lowe’s correspondence re-iterating the correctness of the Decision, and in so doing referred to the decision of the Court of Appeal in Friends of Davie Bay v. Province of British Columbia , 2012 BCCA 293 [ Friends of Davie Bay ] to which I will later refer in detail. [ 74 ] In his letter of January 14, 2014 Mr. Peterson advised the FNFN as to why the EAO maintained that the Decision was correct and reasonable. In

summary, the reasons given were: 1) The EAO’s view is that extracted sand and gravel only counts for the purposes of the numeric thresholds [in Table 6 of the Regulation ] if it is part of the Proponent (CSI)’s production capacity, that being, “the amount of sand and gravel that the Proponent will produce for sale or use” based on several factors stated to be: First, “production capacity” generally means the amount of “product” or “output” of something that has value added as compared to inputs. It would be contrary to the ordinary meaning of production capacity to measure it by including “waste material”.

Canadian Silica has confirmed, by their letter of July 19, 2013, that the amount of product sold and used, including both sand and gravel, will be less than the above thresholds. Second, interpreting item 3 of Table 6 in this manner is consistent with the scheme of the Environmental Assessment Act and an

interpretation of the Reviewable Projects Regulation that avoids requiring proponents that have an intended production level below the numeric thresholds to engage in an extensive analysis of the amount of sand and gravel in waste materials, and avoids the Environmental Assessment Office (EAO) having to review such studies for the purposes of forming a view as to whether a project is a reviewable project. In support of those positions and the following ones the EAO relied upon the Court of Appeal’s decision in Friends of Davie Bay. 2) The EAO’s view is that:

…Consistent with the reasoning in Friends of Davie Bay v. British Columbia , our view is that in situations where the application of thresholds in Table 6 are ambiguous, it is generally preferable to apply an

interpretation that is relatively easily applied by proponents based on intended production levels not estimates that are speculative or not easily identified. If the thresholds set by item 3 included waste gravel and waste sand the result in our view would be that proponents would be required to apply a threshold that is difficult to ascertain and is more speculative and would require oversight by EAO.

Sand and gravel pits are developed for an intended production capacity of material that will be sold or used. 3) If that was not the case: Pit operators may estimate the amount of waste material that will need to be dug up in order to remove sand and gravel that meets their production specifications but this waste material is typically treated as an undifferentiated mix of materials that may potentially include boulders, clay, silt sand and gravel.

It is theoretically possible to estimate the amount of sand and gravel that will be included in this waste material, by digging multiple bore holes, estimating the amount of different components in each bore hole, applying a statistical analysis to the bore holes situated in any area that will be mined in a single year or four year period, and then estimating the total amount of sand and gravel that will be dug up during any year or four year period.

For the estimates to have any statistical significance, i.e. for them to be something other than speculative, pit proponents would need to dig more bore holes than are usually required for the purposes of assessing the suitability of a resource for mining. To form a position on whether a project is captured or not, EAO would need to review estimates to ensure that that core samples are representative and analysis properly carried out.

Our view is that interpreting the Table 6 threshold for sand and gravel pits as being based on amounts of sand and gravel produced, i.e. excavated for sale or use, is consistent with the scheme of the Act because it is easily applied by proponents without additional analysis, it is less speculative and does not require EAO to review determinations made by proponents.

It is consistent with the wording of item 6 which refers to “production capacity”. [Emphasis added.] 4) Accordingly: … While the total of waste gravel, waste sand, produced gravel and produced sand may exceed the regulatory thresholds, for the reasons discussed above it is not appropriate to include either waste gravel or waste sand in production capacity. Thus, our view is that it is not necessary for the Proponent to differentiate between waste gravel, waste sand and other waste material because only product gravel and sand is included in production capacity.

The amount of product sand and gravel proposed to be excavated is below the thresholds set out in the Reviewable Projects Regulation . [ 75 ] Those assertions continue to be the primary bases upon which the EAO supports the correctness and reasonableness of the Decision. [ 76 ] The EAO has also continued to take the position that no consultation with the FNFN in addition to that which had occurred before the Decision was made was necessary because its

interpretation of the threshold criteria for new Sand and Gravel Pits in Table 6 of the Regulation concerns

interpretation of criteria of general application in the Province and thus does not attract the specific duty to consult alleged by the FNFN. [ 77 ] As far as I am aware, as of the dates of the hearing of this petition the Mines Ministry had not yet decided whether to approve CSI’s Notice of Work application for the Komie North Mine. [ 78 ] Also, Jeffrey Bond has deposed that although CSI has applied for the five Licenses of Occupation necessary for the potential development of the three other mines in the vicinity of Komie Creek and the two in the Dazo Creek region none of those licences have been approved. [ 79 ] Mr.

Bond has further deposed that CSI has “no present plans to develop multiple mines”. ANALYSIS AND DISCUSSION [ 80 ] Aside from the issue of the alleged breach of the Province’s duty to consult with the FNFN concerning the

interpretation and application of the Table 6 threshold criteria of the Regulation to the Komie North Mine, the fundamental issue in dispute between the parties is whether EAO’s decision to accept CSI’s limitation of its production capacity to the sale of frac sand and the use of some of the extracted for site purposes is reasonable. [ 81 ] I will accordingly first address the issues arising from the Decision concerning the

interpretation of the threshold criteria for new Sand and Gravel Pits under Table 6 of the Regulation and the EAO’s application of that

interpretation to the proposed Komie North Mine and then address the duty to consult arguments made by the FNFN. A. The EAO’s

Interpretation and Application of Table 6 of the Regulation [ 82 ] Before proceeding to my determination of the substantive issues raised by the parties with respect to the EAO’s

interpretation of the threshold criteria for Sand and Gravel Pits under Table 6 of the Regulation and application of that

interpretation to the proposed Komie North Mine Project, I will first discuss the standard of judicial review to be applied to the Decision. 1. The applicable Standard of Judicial Review

[ 83 ] In Friends of Davie Bay, the Court of Appeal held that the standard of review of the EAO’s

interpretation and application of the thresholds in Table 6 of the Regulation (in that case the threshold criteria for “Construction Stone and Industrial Mineral Quarries”) is that of reasonableness. [ 84 ] In doing so Bennett J.A. stated for the Court at paras. 29 to 30: [29] The statutory

interpretation question in issue bears upon whether the Quarry is deemed reviewable by the combined effect of the Act and the Regulation . It has no bearing on the source of the EAO’s authority to interpret its home statute or otherwise apply the provisions of the Act and Regulation to the facts of this case. [30] The question in issue is one that involves the

interpretation of an enactment closely connected to the EAO’s function and so, in one sense, involves the determination of whether the EAO has authority or jurisdiction to determine whether the Quarry is reviewable. However, it is not one of the “narrow or exceptional” questions that concern true jurisdiction or vires. Accordingly, I conclude that the standard of review applicable to the EAO’s determination in the case at bar is reasonableness. [ 85 ] In reaching that conclusion, Bennett J.A. relied upon Alberta (Information and Privacy Commissioners) v. Alberta Teachers’ Association , 2011 SCC 61 , for the proposition that “for questions involving an administrative body’s

interpretation of its home statute should presumptively be reasonableness, and the party propounding correctness should bear the burden of identifying a true question of jurisdiction raised by the decision in issue.” [ 86 ] As in Friends of Davie Bay , no question of the jurisdiction of the EAO to interpret or apply the threshold criteria of Table 6 of the Regulation arises in this case. [ 87 ] The standard of judicial review of the Decision is accordingly that of reasonableness. [ 88 ] Concerning the reasonableness standard of review of administrative decisions the Supreme Court of Canada said in Dunsmuir v.

New Brunswick , 2008 SCC 9 [“ Dunsmuir ”], at para. 47 : [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 89 ] Following upon Dunsmuir , in Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 , at para. 59 , the Supreme Court of Canada also observed: [59] Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference.

Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir , at para. 47 ). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. 2. Is the EAO’s

interpretation and application of the threshold criteria in Table 6 of the Regulation reasonable? [ 90 ] Determination of this issue engages principles of statutory

interpretation. It also requires examination of the threshold criteria in Table 6 of the Regulation in the context of other relevant legislative provisions. [ 91 ] Table 6 of the Regulation is reproduced below: Table 6 Mine Project Column 1 Column 2 Column 3 Project Category New Project Modification of Existing Project 1 Coal mines - SIC code 063 Criteria :

(1) A new mine facility that, during operation, will have a production capacity of ≥ 250 000 tonnes/year of clean coal or raw coal or a combination of both clean coal and raw coal. Criteria:

(1) Modification of an existing mine facility that meets Threshold E.

2 Mineral Mines Criteria:

(1) A new mine facilitythat, during operations,will have a productioncapacity of ≥ 75 000tonnes/year of mineralore. Criteria:

(1) Modification of anexisting mine facility thatmeets Threshold E. 3 Sand and Gravel Pits __SIC code 082 Criteria:

(1) A new pit facilitythat will have aproduction capacity of(a) ≥ 500 000tonnes/year of sand orgravel or both sand andgravel during at least oneyear of its operation or(

b) over a period of ≤ 4years of operations, ≥ 1000 000 tonnes ofexcavated sand or gravelor both sand and gravel. Criteria:

(1) Modification of anexisting pit facility thatmeet Threshold F. 4 Placer Mineral Mines Criteria:

(1) A new mine facilitythat, during operations,will have a productioncapacity of ≥ 500 000tonnes/year of pay-dirt. Criteria:

(1) Modification of anexisting pit facility thatmeets Threshold F. 5 Construction Stone andIndustrial Mineral QuarriesCriteria:

(1) A new quarry facilityor other operation that:(

a) involved the removalconstruction stone orindustrial minerals orboth,(

b) is regulated as a mineunder the Mines Act, and(

c) during operations,will have a productioncapacity of ≥ 250 000tonnes/year of quarriedproduct. Criteria:

(1) Modification of anexisting mine facility thatmeets Threshold E. 6 Off-shore Mines Criteria:

(1) A new off-shoremine facility. Criteria:

(1) Modification of anexisting facility thatmeets Threshold G. [92] As noted many times in the correspondence amongst the parties which I have recorded, the applicable threshold criteria ofTable 6 in issue is Item 3 of Column 1 of Table 6 for “Sand and Gravel Pits”. [93] More specifically, since the Komie North Mine is a “New Project” at issue are the criteria set out in Column 2. [94] It is immediately apparent that given that CSI’s proposed “production capacity” is 240,000 tonnes/year of frac sand per yearover more than four years of operations, what is in controversy is Criteria 1(

b) and more specifically, whether CSI’s designated“production capacity” for frac sand alone modifies substantially downward the more inclusive phrase “excavated sand and gravel orboth” when almost all of the gravel is deemed by the proponent to be waste material. [95] The primary focus of the arguments of the parties with respect to the Decision as it relates to the

interpretation of the Sand andGravel thresholds in Table 6 is upon principles of statutory

interpretation in the context of the scheme and purpose of the Act and theRegulation as a whole, and the extent to which, if at all, other statutory provisions should inform that

interpretation.

a) Applicable Principles of Statutory

Interpretation [96] Although the parties disagree with respect to the reasonableness of the EAO’s

interpretation of the threshold criteria for newSand and Gravel Pits established by Table 6 they agree that the approach that should be taken in interpreting the Act and Regulation isthe “modern approach to statutory

interpretation” enunciated by the Supreme Court of Canada in Re: Rizzo and Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 [Rizzo Shoes]. [97] In Rizzo Shoes, at para. 21, Iacobucci, J (for the Court) wrote: … Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes

that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [98] While the parties all acknowledge that the formulation of the modern approach to statutory

interpretation adopted by theSupreme Court of Canada in Rizzo Shoes governs my analysis in this case they also each rely upon other more recent authority toemphasize and support the positions they advance. [99] In that regard I note at the outset that although the EAO and CSI each made separate submissions they were generally whollysupportive of the submissions advanced by the other. [100] The FNFN relies on the Supreme Court of Canada’s decision in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005SCC 26 in which, Binnie J. (for the majority) after discussing the modern approach to statutory

interpretation of statutes adopted in RizzoShoes went on to say (at para. 38) with respect to the

interpretation of regulations: 38 The same edition of Driedger adds that in the case of regulations, attention must be paid to the terms of the enabling statute: It is not enough to ascertain the meaning of a regulation when read in light of its own object and the facts surrounding its making; it isalso necessary to read the words conferring the power in the whole context of the authorizing statute. The intent of the statute transcendsand governs the intent of the regulation. (Elmer A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 247) This point is significant.

The scope of the regulation is constrained by its enabling legislation. Thus, one cannot simply interpret aregulation the same way one would a statutory provision. [101] The FNFN emphasizes that in Friends of Davie Bay (at para. 34) the Court of Appeal held that the object of the Act isenvironmental protection. [102] The FNFN also relies upon Pharmascience Inc. v. Binet, 2006 SCC 48 and the majority’s explaining “ordinary meaning” atpara. 30 where LeBel J. wrote: 30 Although the weight to be given to the ordinary meaning of words varies enormously depending on their context, in the instant case, atextual

interpretation supports a comprehensive analysis based on the purpose of the Act. Most often, “ordinary meaning” refers “to thereader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R.Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21; Marche v. Halifax Insurance Co., [2005] 1S.C.R. 47, 2005 SCC 6, at para. 59). In Canadian Pacific Air Lines Ltd. v.

Canadian Air Line Pilots Assn., (SCC),[1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”. [Emphasis added.] [103] In addition, the FNFN relies upon Chieu v. Canada (Minister of Citizenship and Immigration) 2002 SCC 3 for the propositionthat while the modern approach to

interpretation may begin with the ordinary meaning of a provision that is not the end of the necessaryanalysis because the provision must be read in its entire context. In that case Iacobucci J. stated at para. 34 that the contextual inquiry: … involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, andParliament’s intent both in enacting the Act as a whole, and in enacting the particular provision at issue. [104] The FNFN submits that examination of the history of the prior wording of the threshold provisions for Sand and Gravel Pits arenow found in Table 6 of the Regulation requires an

interpretation that precludes the

interpretation placed upon the present criteria in theDecision by the EAO. [105] In support of its argument that its

interpretation of the Sand and Gravel threshold in Table 6 of the Regulation is not onlyreasonable but correct the EAO relies upon the decision of the Supreme Court of Canada in Canada Trustco Mortgage Co. v. Canada,2005 SCC 54 (at para. 10) which held that the

interpretation of legislative provisions requires a “textual, contextual and purposiveanalysis to find a meaning that is harmonious with the Act as a whole”, and that: … where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relativeeffects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read theprovisions of

an Act as a harmonious whole. [106] Relying upon that principle of

interpretation the EAO submits that the Sand and Gravel threshold must be read harmoniouslywith not only the Act and Regulation, including all of the other criteria enumerated in Table 6 for other Mine Projects, but also with otherstatutory provisions related to the regulation of mining in British Columbia and most specifically the Mines Act and its treatment of“production capacity” by proponents such as CSI. [107] While the principles of statutory

interpretation enunciated by the Supreme Court of Canada to be considered when undertakinginterpretation of a legislative provision upon which the parties rely are all entirely valid and potentially applicable, the authorities alsoestablish that the significance of any one consideration or combination of considerations relating to competing

interpretations must alsobe assessed in the context of the factual circumstances under inquiry. [108] To that end I will now examine the parties’ positons in relation to the

interpretation of the Sand and Gravel threshold criteriathey advance by reference to the principles of

interpretation they each rely upon.

b) “Grammatical and Ordinary Sense” [ 109 ] The contest between the EAO and CSI on the one hand and the FNFN on the other centers upon the juxtaposition of the phrases “production capacity” and “excavated sand and gravel or both sand and gravel” in the wording of the Sand and Gravel threshold in Table 6. [ 110 ] The FNFN asserts that “production capacity” is a generic term that is modified and given meaning by the phrase “excavated sand and gravel or both sand and gravel”. On that

interpretation the phrase that establishes the criteria for reviewability is “excavated sand and gravel or both” with the emphasis on “excavated” because what is at issue with a new pit facility is the volume and area of land disturbed by extracting the product mined. [ 111 ] The FNFN thus asserts that on a plain and simple reading in its grammatical sense the Sand and Gravel threshold is concerned with the amount of material that is excavated or removed from the ground and is not concerned with the purpose for which it is removed. [ 112 ] In sup

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