In a potentially significant decision, the Supreme Court of Canada has raised the bar for federal government agencies charged with deciding what level of environmental review is needed for major industrial projects.

The case began when an environmental group, MiningWatch Canada, challenged the way the federal Department of Fisheries and Oceans (DFO) reviewed the Red Chris mining project, proposed for northern British Columbia. As part of a plan to build a gold and copper mine, project developers planned to use a trout pond to hold mine tailings.

MiningWatch took issue with DFO's decision to order a screening instead of a comprehensive environmental review of the proposed open-pit mine, and asked for judicial review of a lower court decision.

The Supreme Court's decision yesterday included a declaration, but no order to suspend or stop the Red Chris project, which will likely proceed as planned. Nonetheless, the decision will almost certainly affect the way federal agencies and other "responsible authorities" approach environmental reviews on similar projects in future.

The decision may also create delays for such projects, a Calgary environmental lawyer said yesterday.

"The long and the short of it is that it's going to lead to further delays," Alan Harvie, a lawyer with Calgary firm Macleod Dixon LLP told the Bulletin. "It's a real push for the courts telling federal agencies to look broadly at potential environmental impacts. I think the federal government is going to have its work cut out."

"I believe it's going to drive responsible authorities -- like the DFO -- to more thoroughly canvass other federal departments and that isn't going to happen quickly."

Part of the problem, he said, is that the federal agencies, such as DFO, that will be responsible for doing the work, are not properly staffed or equipped for the job.

"They would have to bring in Environment Canada, Natural Resources Canada, and Transport Canada, for example. Other government agencies may have those skill sets, budgets and people. In this kind of situation, I predict that DFO would have to consult with many other departments and that doesn't happen quickly. It means more delay."

Perhaps equally important, the Supreme Court took issue with the way DFO decided what level of environmental review would be required, a process environmental lawyers like Harvie describe as "scoping."

Initially, DFO decided the project, consisting of a mine, a mill and other components, merited a full environmental assessment or 'comprehensive study.' Later, however, DFO revisited the file, this time excluding the mine and mill from consideration. The result was a very different scoping, with the department deciding the project, as now framed, needed only a screening, a much less thorough review than a comprehensive study.

The top court challenged DFO's scoping decision. Acknowledging that a federal agency such as DFO was free to expand the scope of a project in order to determine the level of environmental assessment needed, the court ruled that the agency could not by the same token reduce the scope of the project, but must look at the entire project "as proposed" by the developer, in deciding which level of environmental review is needed.

Harvie agreed that DFO's initial scoping was central to the court's decision. By virtue of the volume of ore that would be mined, the Red Chris project fell within the federal criteria for projects that require a comprehensive environmental assessment.

Those criteria, set out in a 'Comprehensive Study List,' represent some of the many regulations attached to the Canadian Environmental Assessment Act, which governs the kind of environmental review required on major industrial projects in Canada. If a project falls within the criteria on the list, it must have a full environmental study, rather than a screening.

"Scoping is everything," said Harvie. "If you scope a project for review narrowly, it's a much narrower piece of the project you're studying. The (Supreme) Court said, 'No, you study the whole project when it's on the comprehensive study list.'"