UPDATE - FEBRUARY 1ST, 2011 - The Friends of Davie Bay's legal challenge goes to court in the BC Supreme Court in Vancouver this morning.
Yesterday afternoon lawyers the Friends of Davie Bay (FODB), with a grant from our Environmental Dispute Resolution Fund, filed a petition challenging the BC government’s failure to conduct an environmental assessment of a major gravel pit on Texada Island [link to press release]. The FODB describe the gravel project, proposed by Lehigh Northwest Cement, as follows:
Lehigh plans to construct a conveyor or ramp, 433 metres in length, 7 metres in height, spanning the causeway and tidal island at its crest, and build a barge-loading facility on the Lasqueti side of the tidal island in Davie Bay. Clearance for the conveyor would be approximately 6 metres, and it would entail the building of several pylons to support the structure. The ramp would extent over the tidal island and out about 15 meters into the ocean to enable 10,000-tonnes barges, 100 metres in length, to load.
A quarry in the Davie Bay area would devastate a unique area of forest, open grassy bluffs, limestone caves and streams and waterfalls, and the fragile marine habitat. This should not happen without a detailed examination of the social, economic and environmental consequences, with full public input.
But more fundamentally this court case could answer some crucial questions about how environmental assessments need to be done, thereby strengthening BC’s environmental assessment process.
Under BC’s Environmental Assessment Act only large projects, particularly likely to cause environmental problems, get assessed. The Reviewable Projects Regulation clarifies that new quarries will not be assessed under the Act unless they “have a production capacity of > 250 000 tonnes/year of quarried product.”
LeHigh Northwest has indicated that it intends the Davie Bay quarry to produce 240,000 tonnes/year, or just below the threshold that would require an environmental assessment. But, it’s building infrastructure that will support a much larger mine. As David Perry, the lawyer for the FODB, wrote to Minister Barry Penner last September:
Lehigh has represented … that the proposed conveyor system used to move rock will be capable of a loading rate of 2500 tonnes per hour. Further Lehigh states in the Mine Plan that they intend to use 100 tonne trucks in their quarry operations. Based on the capability of the conveyor system Lehigh could meet their stated production in only 96 hours of operation.
BC Environmental Assessment Office, in response, has stated that it understands the “production capacity” to refer not to the capacity of the on-the-ground infrastructure, but the amount of gravel extraction that LeHigh Northwest has requested permission for in its applications to the Ministry of Energy and Mines.
The Environmental Assessment Office’s interpretation would allow companies to easily avoid doing environmental assessments in a wide range of cases, simply by understating their production and then later increasing it. To take this case as an example, if this project is allowed to proceed without an environmental assessment, there will be nothing stopping LeHigh Northwest from later applying to expand the quarry without any further environmental assessment (unless the increase in land area of the quarry were large enough to itself trigger an environmental assessment).
When I described the situation to my wife, she immediately said: “Well, as a mother I can certainly see where that’s going.” Parents know all about children that try to argue for “just one more minute” in the hopes that they can really get five.
British Columbians expect the BC government to show at least the same common sense in regulating gravel companies as a parent applies in enforcing family rules. It seems that, in this case at least, we’re not seeing that.
Fortunately, there is a clear legal basis for a challenge: Does annual “production capacity” really only what LeHigh Northwest has asked the government for permission to mine, or does refer to the capacity that the project, and its associated infrastructure, could handle? The answer to that question will help determine whether companies can opt-out of environmental assessments simply by breaking their projects into phases.
Image from Friends of Davie Bay, generated by Google Earth.
Other documents:
Friends of Davie Bay press release and backgrounder
Judicial Review Petition filed by the Friends of Davie Bay
Affidavit of Kenneth Dove filed in support of the Petition