The Canadian Federal Court of Appeal has reaffirmed the right of federal agencies having a right to define and redefine a mining project for the purposes of tracking an environmental assessment.

The decision allows Canadian regulatory agencies to continue permitting Imperial Metals' Red Chris copper-gold project in north-western British Columbia.

Environmental NGO MiningWatch Canada had originally filed litigation challenging the legality of decisions or actions taken by Department of Fisheries and Oceans and Natural Resources Canada in conducting the environmental assessment of the $227.7 million project, which is expected to yield 1.85 billion pounds of copper and 1,187,000 ounces of gold over a 17-year mine life.

Ecojustice attorney Lara Tessaro said, We are defending the right of members of the public to be heard before the government decides whether major industrial projects can go ahead. The NGOs assert that according to the Canadian Environmental Assessment Act and federal regulations, metal mining projects processing more than 3,000 tpd must undergo comprehensive assessments, complete with public participation.

They argued Red Chris would destroy fish habitat, require major power-line construction, and generate millions of tons of tailings and mine waste.  In 2007 Justice Luc Martineau upheld MiningWatch's arguments, ordering that the Red Chris mine be denied any federal permits until it had undergone a comprehensive study, complete with public participation.

However, appeals were filed by the Ministries of Fisheries and Oceans and Natural Resources, the Attorney General of Canada, and by a subsidiary of Imperial Metals. At issue was the nature of the discretion of the responsible federal authorities to scope a project under the Canadian Environmental Assessment Act.

Imperial contended that the provincial review process already included consultation with the Tahltan First Nation and other local communities.  Documents were made available for review in local libraries, band offices, and government agent offices, as well as through provincial and federal environmental websites. Open houses were conducted in four communities closest to the Red Chris project.

In their ruling Appellant Justices Alice Desjardins, J. Edgar Sexton and John M. Evans set aside Justice Martineau's decision and reaffirmed that federal officials have the right to to define and redefine the scope of a project for the purposes of tracking an environmental assessment.

Joan Kuyek of MiningWatch told the Canadian Press that the ruling is a huge disappointment and the approach the appeals court took is appalling.