"Scoping To Triggers" Approach Rejected By The Supreme Court Of Canada

On January 21, 2010, the "scoping to triggers" approach employed by federal responsible authorities (RAs) under the Canadian Environmental Assessment Act (CEAA) was decisively rejected by the Supreme Court of Canada. In MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 (MiningWatch) the Court held that the Environmental Assessment (EA) tracking decision is determined according to the project as proposed by the proponent and not the project as scoped by the federal RA. This eliminates the previous discretion of RAs to define the scope of a project prior to the EA tracking decision.

Background

The CEAA sets out five potential tracks for federal EA depending on the nature of a project: (i) no assessment; (ii) screening; (iii) comprehensive study; (iv) mediation; and (v) review panel. In the past, it had been the practice of RAs to determine the scope of the project first and then determine the appropriate EA track for the project as scoped. Some RAs