Another little setback for West High Yield
By Sara Golling
At the Rossland courthouse today, the full public gallery heard Mr. Justice Dev Dley deliver his reasons and his decision on an application by the Save Record Ridge Action Committee (SRRAC).
SRRAC was asking the court to order an injunction to prevent West High Yield (WHY) from beginning work on its proposed open-pit magnesium mine on Record Ridge until a judicial review is concluded. The judicial review is being sought by SRRAC, in hopes of overturning the Environmental Assessment Office’s decision that the Record Ridge project does not require an Environmental Assessment.
As Justice Dley explained, a decision on whether or not an injunction should be granted is based on a number of factors; those factors usually include a preliminary assessment of whether there is a serious case to be heard, and whether there is likely to be irreparable harm unless the injunction prevents it, and the balance of convenience; which party will suffer the most harm, with or without an injunction.
As to the “irreparable harm” the judge acknowledged the risk that if WHY made a substantial start on the mine, an environmental assessment would become moot – of no value or effect.
He also acknowledged that the balance of convenience favors SRRAC, in part because WHY is not actually ready to begin construction and there is no guarantee of when construction could realistically begin.
During this hearing, WHY’s lawyer had acknowledged that WHY cannot guarantee that it would be ready to begin construction on April 1, though that was the date they were hoping to begin. But many factors could prevent that, starting with the necessary permits WHY does not yet have, including permits under the Environmental Management Act, from the Ministry of Forests, from the Ministry of Transportation, and for the use of water. Adverse weather could also cause more delays for WHY.
The judge pointed out that this hearing would likely not have been necessary at all if the lawyer(s) for WHY had been available for any of the other possible earlier dates for the judicial review; he pointed out that SRRAC did everything possible to set an earlier hearing of the judicial review, and that the delay was entirely due to counsel for WHY being unavailable.
If the judicial review had been concluded before the potential dates when WHY might be able to begin construction, no injunction would have been needed – because the issue of whether the Ministry was reasonable in refusing to require an environmental assessment would have been decided, and either WHY would have been cleared to go ahead and do whatever they had sufficient permits to do, or the proposed magnesium mine would have been required to go through an environmental assessment.
The bottom line was that SRRAC won the injunction application, with the proviso that SRRAC must collect funds to a total amount of $162,500 to be held in trust until further order of the court. These funds are intended to compensate WHY for any damages WHY may suffer, and be able to prove, as a result of the injunction.
A moment after the judge had left the courtroom, the public gallery burst into sustained applause. Members of the public wore huge smiles, hugged each other, and generally expressed joy over the outcome of this hearing.
The judicial review is presently scheduled to be heard in Rossland beginning on May 5, and that will be a higher hurdle to clear for opponents of the proposed mine. WHY’s counsel had suggested a date of May 25 in a more distant community, but Justice Dley opined that the judicial review should take place “in the affected community” and sooner rather than later.
