A senior official with Calgary-based Burnco Rock Products has downplayed the fact his company started legal proceedings against the Department of Fisheries and Oceans (DFO) in 2010, after the department refused to authorize an environmental assessment of Burnco’s gravel mine proposal for McNab Creek.
“What that was wasn’t a lawsuit,” Kim Titus, vice-president of Burnco’s aggregate division, told Coast Reporter Oct. 21. “We were contemplating a judicial review of their decision early on. It was filed, but we never did do anything with it. They allowed us to go ahead and submit our application.”
On July 16, 2010, Burnco filed for a judicial review in federal court in Vancouver, naming the Minister of Fisheries and Oceans and Attorney General of Canada as co-respondents.
The six-page document seeks “an order declaring invalid and unlawful and quashing the DFO decision,” described as “refusing to issue an authorization under the legislation and thus preventing the proposal from proceeding further through the comprehensive environmental assessment process.”
The DFO decision, dated one month prior to Burnco filing for judicial review, concluded the gravel mine proposal would “likely result in significant impacts to fish and fish habitat,” and as a result, DFO was not prepared to issue an authorization under the Fisheries Act.
The proposal could be reconsidered, the letter to Burnco from DFO regional director general Susan Farlinger said, if the company relocated or redesigned it.
After Burnco filed in federal court, DFO sent a new team of scientists to McNab Creek for a site review, Titus said.
“They said ‘go ahead and apply, but there’s no guarantees,’” he said.
The company did, and its proposal is still going through a harmonized federal/provincial environmental assessment process.
Burnco’s court proceeding was a subject of discussion among some members of the public who attended the recent Burnco open house in Gibsons, and was raised publicly by Gibsons Coun. Dan Bouman during his report to council on Oct. 15.
“Gravel mining in this location has been proposed at least three times that I’m aware of,” Bouman said at the meeting. “Each time it was proposed previously it failed because DFO determined that the scale of fish habitat damage was so large that it couldn’t be accommodated by compensation, therefore it would be essentially illegal to approve.”
When Burnco first applied, Bouman said, DFO advised the company that the project involved an extreme risk.
“And Burnco turned around and sued DFO in federal court, seeking the right to enter an environmental assessment process. DFO agreed to that and it was settled out of court, so that process is now underway,” he said.
Contacted after the meeting, Titus denied Burnco had taken the legal action Bouman described.
“We’ve never sued DFO,” he said. “We’ve never ever filed a lawsuit. That is absolutely wrong.”
Titus said the company had simply asked to have DFO reconsider its decision.
“There was never a threat of any type of lawsuit,” he said.
Titus, in a follow-up interview, acknowledged the application for judicial review had been filed at the time, but took issue with Bouman’s characterization of the action as a “lawsuit,” calling that “a very interesting way of putting it.”
He also disputed Bouman’s account of how the matter was resolved.
“It wasn’t quite settling out of court,” he said.
Titus said the company wanted an opportunity to prove to DFO that it could mitigate the environmental impacts of the project.
“They really had not seen anything from us, so they didn’t know to what degree we would study it and look into it. So we asked to be given a chance and make an application based on science,” he said.
Prior to the Oct. 4 open house, in a letter to stakeholders, Burnco regional manager Derek Holmes listed 10 examples of changes to the proposal from its inception based on feedback from the project team and comments from regulatory agencies, First Nations and the public.
In his report to council, Bouman noted that DFO appointed a technical team to review Burnco’s application after Burnco agreed to suspend the judicial review process, and the team’s conclusion backed up the original high-risk ranking.