Summerland residents opposed to the Garnet Valley gravel pit can celebrate, after the permit was overturned through a judicial review that deemed the process “unreasonable.”
Justice Gregory Koturbash handed down the 34-page decision to squash the permit approval on Feb. 26, following two days of hearings and submissions earlier in the month.
The judicial review was brought forward by the Garnet Valley Agri-Tourism Association and Douglas Rafferty, whose property is located downslope of the pit site.
In 2024, the Inspector of Mines issued the permit for the gravel pit, despite widespread opposition from the community, from the District of Summerland, the Regional District of Okanagan Similkameen, the Sn’pinktn (Penticton) Indian Band, Penticton-Summerland MLA Amelia Boultbee, local chambers of commerce and non-governmental groups.
“It’s not a standard of perfection, they were looking for the decision to be outside of the scope of what’s reasonable, and that’s what the court found,” said Boultbee following the decision. “That’s what the community has been saying the entire time. We’re really thrilled, but it’s too bad that it came to this because constituents should not have to litigate against the government to protect themselves. “
The decision hinged on the failure of the Inspector of Mines to address concerns raised during the public input process on issues of impacts to the environment, the conflict between the proposed project and established land-use planning, and landslide risks in an area vulnerable to them.
“Viewing the circumstances as a whole, I am satisfied that the petitioners have met their burden of establishing that the decision to issue the permit was unreasonable,” wrote Koturbash in his decision. “I am also satisfied that each of the principal deficiencies identified above would, on its own, be capable of supporting a finding of unreasonableness. Considered cumulatively, they reinforce that conclusion.”
While the mining company argued that environmental impacts were a fact of any mining operation, Justice Koturbash noted the issues at Garnet Valley went beyond the usual standard.
“The government’s biologist concluded that the anticipated consequences on ecosystems and species at risk would likely be long-term, permanent, and irreversible, despite proposed mitigation measures, and recommended against authorizing the mining operation,” reads the decision. “In addition to the biologist’s concerns, the Inspector reviewed a 2022 private environmental assessment prepared for an earlier rezoning application for a smaller cannabis production facility on the same property. … The assessment, like the biologist, classified most of the property, including the entire proposed gravel pit area, as ESA-1, the highest environmental sensitivity category. “
In the face of such direct threats to a sensitive environment, Justice Koturbash said that the Inspector needed to meaningfully acknowledge the evidence of risk and provide a rational explanation for how those risks were weighed before issuing the permit.
Instead, the Inspector’s initial July reasons simply conclude that the permit should be issued with conditions to mitigate the impacts to the environment, without acknowledging the report from the government’s biologist or the private environmental assessment.
“This is not a case where the decision-maker preferred competing expert evidence, because there was none,” reads the decision. “The lack of engagement with the biologist’s clear conclusion that mitigation would likely not prevent irreversible harm leaves the court unable to trace a rational path from the evidence to the outcome.”
In addition, Koturbash found that there had been procedural unfairness in issuing reasons to retroactively justify aspects of the decision, in failing to properly communicate information through the public notice, and by providing misleading information to the PIB’s Chief Greg Gabriel, but that extent was not enough on its own to justify overturning the permit.
The misleading information in the public notice carried the implication that land-use planning and zoning were irrelevant for consideration, which is not the case, and the communication to Chief Gabriel was an email from the Chief Permitting Officer that gave the impression the permit would not be approved.
“He strongly opposed the permit due to risks to the fragile ecosystem and archaeological potential. He explained that impacts on wildlife habitat would affect band members’ rights to harvest wildlife for food, ceremonial, and social purposes,” reads the decision. “The Chief Permitting Officer responded directly to Chief Gabriel and the SnPink’tn Indian Band by letter stating, ‘The ecosystem biologist had advised the
Decision-Maker that due to the significant risk of long-term negative impacts on these ecosystem values, they do not recommend authorization of the proposed mining operations.’”
Justice Koturbash also noted that between the two sets of reasons the Inspector of Mines provided, first in July after the permit was issued, and the second in October, the Inspector provided new claims, in particular introducing reference to a “comprehensive review and reccomendations were obtained from technical experts” on the slope stability risks that was never produced for the public.
With the approval of the permit squashed, it has been remitted back to the Inspector of Mines to be reheard for a new decision.