Executive Summary: Key Legal and Evidentiary Issues

• West High Yield (W.H.Y.) Resources Ltd. received a permit to mine 63,500 tonnes of ore annually at Record Ridge without an environmental assessment after previously proposing significantly higher annual production capacities.

• SRRACS and the Sinixt Confederacy challenge the Minister’s decision not to require an environmental assessment, arguing the project infrastructure can accommodate a larger disturbance than 63,500 tonnes and that the Minister’s scrutiny was inadequate.

• SRRACS relies on s. 11 of the Environmental Assessment Act, S.B.C. 2018, c. 51, asserting irreparable harm because once the project is “substantially started,” an environmental assessment would no longer be available and the petition would be rendered moot.

• WHY relies on Friends of Davie Bay and Fort Nelson First Nation, arguing that, as a proponent-driven scheme with a 75,000-tonne threshold and bright-line criteria, no environmental assessment is required for its revised project.

• The court applies the RJR-MacDonald framework (serious question, irreparable harm, and balance of convenience), finds that SRRACS faces an “uphill challenge” on the merits, but concludes that irreparable harm and the balance of convenience favour granting interim injunctive relief.

• An interim injunction is granted, the petition hearing is set for the Rossland Assize commencing May 5, 2026, and SRRACS must provide $162,500 as security for damages through frozen funds and an additional trust deposit.

Background and facts of the case

Beginning in 2005, West High Yield (W.H.Y.) Resources Ltd. (“WHY”) commenced exploratory work for the Record Ridge project. In 2019, WHY submitted an application to mine magnesium with an annual production capacity of 400,000 tonnes. In 2022, a revised application reduced the annual production capacity to 249,000 tonnes, and in 2023 a further revised application set the capacity at 200,000 tonnes.

In August 2024, the Environmental Assessment Office (“EAO”) determined that the Record Ridge project was automatically reviewable and that an environmental assessment was required. WHY responded by revising its application and reducing the annual production capacity to 63,500 tonnes. The infrastructure, mine plan, reclamation, and mitigation plans essentially remained the same.

On April and May 2025, SRRACS and the Sinixt Confederacy applied to the EAO seeking to have the Record Ridge project designated for an environmental assessment. On August 19, 2025, the Chief Executive Assessment Officer declined to designate the project for environmental assessment.

On October 20, 2025, WHY was granted a permit (“Permit”) to construct and operate an open-pit magnesium mine at Record Ridge, approximately 7 kilometres from the City of Rossland. The Permit is valid from October 20, 2025 to November 15, 2028. The mining may only occur from April 1 to November 15 each year, and the first period of construction or mining may commence on April 1, 2026.

The petition and attempts to obtain an early hearing

On September 22, 2025, SRRACS filed and served a petition for judicial review of the decision not to require an environmental assessment. SRRACS says that the Minister of Environment and Parks and the Chief Permitting Officer erred in not requiring an environmental assessment, and the court refers to the Minister and delegates collectively as “the Minister.”

There were local dates available for the hearing of the petition in November 2025, and April and May 2026. Counsel for all parties were available in January and February 2026 if the matter could be heard elsewhere. Counsel for WHY indicated that they were not available until August 2026. Counsel for SRRACS, Sinixt, and the Minister indicated availability for January and February dates and for the April or May Rossland Assizes, but WHY’s counsel said they were not available until August. The petition was ultimately set to be heard commencing August 17, 2026, on the Nelson Assize. The court notes that there is time for the petition to be heard on the Rossland Assize commencing May 5.

SRRACS brings the present application seeking either a stay of the Permit or an interim injunction until judgment has been rendered on the petition.

Positions of SRRACS and the Sinixt Confederacy

SRRACS argues that the application for interim relief was necessary because WHY was not available to have the petition heard on its merits until well after construction would commence. SRRACS relies on s. 11 of the Environmental Assessment Act, S.B.C. 2018, c. 51, which states that environmental assessments can only be granted for projects that are not substantially started. SRRACS says irreparable harm will be suffered if a stay or interim injunction is not granted because the remedy being sought would not be available once the project is substantially started.

SRRACS does not suggest that WHY is going to breach the terms of the issued Permit and concedes that WHY has been transparent in its conduct and has done nothing wrong. SRRACS says that the project to be built will be able to accommodate a much larger disturbance than the stated 63,500 tonnes of annual extraction under the Permit. It argues that the Ministry erred by not considering or ordering an environmental assessment based on the overbuild, and questions the Minister’s level of scrutiny in these circumstances.

Sinixt has been added as a respondent. Sinixt supports the application for a stay or interim injunction and has filed a robust response and affidavit evidence in support. Sinixt argues that the Minister’s decision was unreasonable and refers to the added factors that must be considered in the Environmental Assessment Act, which replaced the earlier statute that was the subject of comment in Friends of Davie Bay v. Province of British Columbia, 2012 BCCA 293. The court notes that, for all intents and purposes, Sinixt’s arguments mirror those of SRRACS, albeit couched in a different manner.

Positions of the Minister and WHY

The Minister takes no position with respect to the relief being claimed. The Minister provides insight regarding the impact of a stay order to the Permit as opposed to the effects of an interim injunction.

WHY argues that there was extensive input from the community and consultation with concerned stakeholders, including Sinixt. WHY maintains that because the stated production capacity was below the threshold of 75,000 tonnes, there was no reason to have the project designated as a reviewable project, and therefore no environmental assessment was required. WHY relies on the Minister’s decision, which mentioned Davie Bay and referenced the impact of the new legislation. WHY argues that Friends of Davie Bay and Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, are clear authorities that confirm its position that no environmental assessment was required.

WHY also raises concerns about the manner in which Sinixt has participated in the application, saying it is improper for Sinixt to have joined the action as a respondent while supporting the petitioner and filing extensive materials. WHY intends to challenge Sinixt’s standing and argues that Sinixt’s material amounts to bootstrapping and case splitting.

The legal test for interim injunctions

The court is satisfied that the factors applicable to assessing whether an interim injunction should be granted are as set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The court refers to Naghmeh v. 1530378 B.C. Ltd., 2025 BCSC 1673, paras. 40–44, which restate the three-factor framework: (1) whether there is a serious question (or in some cases a strong prima facie case) to be tried; (2) whether irreparable harm will be suffered by the applicant if the relief is not granted; and (3) whether the balance of convenience favours the applicant. The court notes that the RJR framework sets out factors, not “requirements,” that the factors are interrelated, and that it is not required that all factors be satisfied before injunctive relief is granted. The fundamental question is whether granting an injunction is just and equitable in all of the circumstances.

WHY submits that the application is for a quia timet injunction, which concerns restraining wrongful acts that are imminent or threatened. The court reviews authorities on quia timet injunctions, including 526901 B.C. Ltd. v. Dairy Queen Canada Inc., 2018 BCSC 1092, and Harness Racing B.C. Society v. Orangeville Raceway Limited, 2025 BCSC 1249. The court concludes that there is no suggestion WHY intends to breach the Permit, and SRRACS concedes WHY has done nothing wrong. The issue is with the reasonableness of the Minister's decision, not a threatened wrongful act by WHY. The court therefore concludes this is not a quia timet injunction application and states that even if it were, that would not change the conclusion.

The Minister submits that if relief is granted, it should be an injunction rather than a stay of the Permit, because the Permit requires WHY to undertake various tasks and provide ongoing reporting, and there is no reason to interfere with those obligations. The court agrees.

On the issue of Sinixt’s participation, the court notes that there is “much merit” to WHY’s concern but states that its decision does not require any reliance on Sinixt’s submissions. Whether Sinixt has standing is left for another day, and the decision on this application does not take into account any of the evidence or arguments put forward by Sinixt.

Application of the RJR-MacDonald factors

On the first factor, the court considers whether there is a serious question to be tried. WHY says the question has already been answered by the Court of Appeal’s rulings in Friends of Davie Bay and Fort Nelson First Nation. WHY notes that it set the annual extraction limit at 63,500 tonnes, below the 75,000-tonne threshold for requiring an environmental assessment. The court quotes from Davie Bay regarding the clear and unambiguous threshold and its proponent-driven nature, and from Fort Nelson regarding the self-applying character of the criteria and the lack of a statutory role for the EAO in determining whether a project is reviewable under the Regulation.

SRRACS argues that Davie Bay was decided under the prior statute, and that the new provisions of the Environmental Assessment Act make that case distinguishable. The court states that it does not dismiss SRRACS’s argument but does not consider it particularly strong, and notes that SRRACS faces an “uphill challenge” to distinguish Davie Bay and Fort Nelson.

On irreparable harm, the court finds that if relief is not granted, there will be irreparable harm to SRRACS. It is likely that by the time the matter can be heard and a decision rendered, WHY will have crossed the “substantially started” threshold, so that an environmental assessment would no longer be available and SRRACS’s claim for relief in the petition would become moot.

On the balance of convenience, the court concludes that it favours SRRACS. SRRACS will suffer the greater harm if the injunction is not granted because the relief it seeks will not be available. The court recognizes there will be harm to WHY if the injunction is granted because it will not be able to proceed with the project in its entirety as of April 1. However, WHY will still be able to carry out some tasks needed in any event, such as surveying and taking core samples, without significant disturbance of the landscape. The court also notes that WHY has indicated there is no certainty the project could commence on April 1 because not all permits have been secured and the work is weather dependent.

Access to justice and scheduling considerations

The court highlights that the circumstances are unique because of the difficulties SRRACS has had in trying to have the matter heard on its merits. If WHY had been available on earlier proposed dates, this application would not have been necessary and the petition would have been heard before April 1 became a concern. The court notes that without injunctive relief, the longer the matter is delayed beyond April 1, the more work WHY can do on the project and thereby render the petition moot, which “cannot be fair or just.”

The court states that acceding to WHY’s position would be “tantamount to this Court endorsing unavailability as a reason to delay the otherwise timely hearing of a dispute.” While a party is at liberty to retain counsel of its choosing, if counsel is so busy that they cannot be available on a reasonable basis, that party cannot rely on unavailability as a reason to avoid hearing dates. The court finds that SRRACS was reasonable in its request for hearing dates and that other parties were prepared to adjust their calendars. The court observes that, by making itself available to argue the petition in early 2026, WHY could have avoided the prospect of an injunction, and that refusing to agree to a hearing date until August was unreasonable.

The court also emphasizes that this is the kind of file where the hearing should take place in the community that has been impacted and will be affected by whatever order is ultimately made, so that residents can be in a position to see the proceedings as part of access to justice.

Security for damages and financial arrangements

SRRACS has indicated that it will abide by any undertaking as to damages. The court notes that SRRACS has limited means and that the likelihood of being able to satisfy a large damage award is unlikely. The court also notes that the reason this application was necessary was because WHY failed to make itself available earlier, and that WHY is “the author of its own doing” as it relates to some of its potential damages.

The court determines that there should be some undertaking for damages and that an undertaking is only as good as the ability to pay, particularly when there is no personal liability. Accordingly, the court orders that the undertaking be replaced by a deposit of funds to be held until further order. The court orders that the sum of $60,000 on deposit at Nelson & District Credit Union account number [number redacted] be frozen until further order of the court. Within two weeks, SRRACS must deposit with its solicitor a further sum of $102,500, to be held in trust pending a further order of the court. Those funds, totalling $162,500, will provide the undertaking as to damages.

During the discussion that follows, counsel for SRRACS clarifies the balances in the relevant accounts and confirms that the account will be topped up to $60,000 before the freezing occurs. The court agrees that this can be done the same day.

Final orders and outcome

In summary, the court makes the following orders:

1. The hearing of the petition shall be placed on the Rossland Assize commencing on May 5, 2026.

2. An interim injunction is granted, lasting until the date judgment is pronounced on the merits of the amended petition in this proceeding, prohibiting WHY or its agents from engaging in any construction, operations, or any other ground-distributing activities authorized under Permit Number Q100000563.

3. The sum of $60,000 on deposit at Nelson & District Credit Union account [number redacted] is to be frozen until further order of the court, and within two weeks SRRACS must deposit an additional $102,500 with its solicitor, to be held in trust pending a further order.

4. The costs of this application will be costs in the cause.

The successful party on this interim application is the petitioner, SRRACS. The total amount ordered to be posted as security for damages is $162,500. The decision does not determine any final damages or monetary award beyond this security arrangement.