Comments on: MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?* http://ablawg.ca/2010/02/19/miningwatch-canada-v-canada-fisheries-and-oceans-hoisted-on-one%e2%80%99s-own-petard/ Sun, 12 Feb 2012 08:09:58 +0000 http://wordpress.org/?v=2.3.3 By: Shaun Fluker http://ablawg.ca/2010/02/19/miningwatch-canada-v-canada-fisheries-and-oceans-hoisted-on-one%e2%80%99s-own-petard/#comment-83361 Shaun Fluker Thu, 25 Feb 2010 23:16:01 +0000 http://ablawg.ca/2010/02/19/miningwatch-canada-v-canada-fisheries-and-oceans-hoisted-on-one%e2%80%99s-own-petard/#comment-83361 Subsequent to this decision, the Canadian Environmental Assessment Agency published revised guidance for federal responsible authorities on project scoping under CEAA section 15 and with respect to the sequencing of scoping a project with the track of environmental assessment under the legislation. The guidance appears intended to align administrative practice with the Court’s ruling. For example, the guidance confirms that the scope of a project for the purposes of CEAA should be, at a minimum, the project as proposed by the proponent. And the guidance also states that a project will be subject to a comprehensive assessment when the project, as proposed by the proponent, is described in the Comprehensive Study List Regulations. See See Canadian Environmental Assessment Agency, “Operational Policy Statement: Establishing the Project Scope and Assessment Type under the Canadian Environmental Assessment Act”, online: . Subsequent to this decision, the Canadian Environmental Assessment Agency published revised guidance for federal responsible authorities on project scoping under CEAA section 15 and with respect to the sequencing of scoping a project with the track of environmental assessment under the legislation. The guidance appears intended to align administrative practice with the Court’s ruling. For example, the guidance confirms that the scope of a project for the purposes of CEAA should be, at a minimum, the project as proposed by the proponent. And the guidance also states that a project will be subject to a comprehensive assessment when the project, as proposed by the proponent, is described in the Comprehensive Study List Regulations. See See Canadian Environmental Assessment Agency, “Operational Policy Statement: Establishing the Project Scope and Assessment Type under the Canadian Environmental Assessment Act”, online: .

]]> By: Shakespeare http://ablawg.ca/2010/02/19/miningwatch-canada-v-canada-fisheries-and-oceans-hoisted-on-one%e2%80%99s-own-petard/#comment-83076 Shakespeare Mon, 22 Feb 2010 14:39:44 +0000 http://ablawg.ca/2010/02/19/miningwatch-canada-v-canada-fisheries-and-oceans-hoisted-on-one%e2%80%99s-own-petard/#comment-83076 I suppose this is for your colleague Nigel Banks. The title phrase is from Hamlet, is "hoist by one's own petard" and it means to be blown up by one's own demolition charge during the seige of a city. For 'tis the sport to have the enginer Hoist with his own petar; and 't shall go hard But I will delve one yard below their mines And blow them at the moon: O, 'tis most sweet, When in one line two crafts directly meet. This might have been a clever usage given the mining context but it doesn't work. While I strongly agree with your critiques of the judgement, I don't think it's correct to say that Miningwatch was caught in the blast of its own dynamite. It might be more accurate to say that of the charges set by MiningWatch, only some detonated and, due to the Court's propensity to grant saw-off judgments, only part of the goal was accomplished. I might note that what was missing from Miningwatch's submissions was a real sense of the socio-ecological context at stake here - which is possibly why the judgment is devoid of it. I think the court needed an intervener to really hammer home what was about to happen in the "Sacred Headwaters" so that the court could not easily fail to take notice of the real costs of its saw-off. That said, I have little optimism that even a strongly pro-environmental statement by the Court (which this was pointedly and painfully not) would have done anything to prevent the Red Chris mine from moving forward in a period of skyrocketing gold prices and plummeting employment in the resources sector. The best we could have hoped for was for Red Chris to have to re-jump through the hoops. I suppose this is for your colleague Nigel Banks. The title phrase is from Hamlet, is “hoist by one’s own petard” and it means to be blown up by one’s own demolition charge during the seige of a city.

For ’tis the sport to have the enginer
Hoist with his own petar; and ‘t shall go hard
But I will delve one yard below their mines
And blow them at the moon: O, ’tis most sweet,
When in one line two crafts directly meet.

This might have been a clever usage given the mining context but it doesn’t work. While I strongly agree with your critiques of the judgement, I don’t think it’s correct to say that Miningwatch was caught in the blast of its own dynamite. It might be more accurate to say that of the charges set by MiningWatch, only some detonated and, due to the Court’s propensity to grant saw-off judgments, only part of the goal was accomplished.
I might note that what was missing from Miningwatch’s submissions was a real sense of the socio-ecological context at stake here - which is possibly why the judgment is devoid of it. I think the court needed an intervener to really hammer home what was about to happen in the “Sacred Headwaters” so that the court could not easily fail to take notice of the real costs of its saw-off.
That said, I have little optimism that even a strongly pro-environmental statement by the Court (which this was pointedly and painfully not) would have done anything to prevent the Red Chris mine from moving forward in a period of skyrocketing gold prices and plummeting employment in the resources sector. The best we could have hoped for was for Red Chris to have to re-jump through the hoops.

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