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Submission re: Bill C-19: an Act to Amend the Canadian Environmental Assessment Act

Jamie Kneen Communications and Outreach Coordinator responsible for: strategic research, social media, and public engagement; our Africa program, environmental assessment, and uranium mining.

(Presentation by Joan Kuyek, National Coordinator)

Thank you for this opportunity to appear before the Standing Committee on Environment and Sustainable Development.

MiningWatch Canada is a pan-Canadian coalition of environmental, Aboriginal, social justice, development and labour organizations that advocates for responsible mining practices and policies in Canada and by Canadian companies operating internationally.

We have a number of concerns with the amendments to CEAA which I will address here with reference to some specific mining projects.

1. Public Involvement must not be discretionary

We are concerned that public involvement should not be discretionary for environmental assessments at any level. Even when public involvement is carried out, it is often controlled by the project proponent, and there is no evaluation of the quality of those assessments. The difficulties faced by communities in northern Ontario who were concerned about the Aquarius Mine illustrates this:

The Aquarius Mine in the Timmins area in Ontario was finally reviewed under CEAA through a Comprehensive Study in 2000. Aquarius is an open pit gold mine being developed by Echo Bay Mines and AGRA. The mine is directly beside the esker containing the main regional aquifer, the Fredrick House Aquifer, and is beside Kettle Lakes Provincial Park. To keep the water from draining into the pit, the company is freezing the ground around it with 2200 columns filled with brine kept at minus twenty degrees centigrade by two refrigeration units. This is an experimental technology. Processing of the ore will take place on site. Tailings will be discharged into a pristine valley on the eastern flank of the esker, which will be lined with high density polyethylene, and impounded by an earthen dam. After passing through a wetland, the effluent will be discharged into Crooked Creek. The waste rock stockpile will cover 250 hectares and have an elevation of over 30 metres. The mine is only expected to be in operation for six years. At the end of the mine, the freeze wall will be allowed to thaw and a lake will form in the pit. There has been very little discussion of contingency plans and emergency responses.

CEAA was triggered in 1996, with the Department of Fisheries and Oceans (DFO) as the Responsible Authority. However, when the project was posted on the Federal Environmental Assessment Index, the name of the project and its location were posted incorrectly. So, although Northwatch — a small regional NGO in the area — was monitoring the Index, they were unable to retrieve the posting until February 1999. In March 1999, and at additional times throughout 1999 and the first quarter of 2000, Northwatch requested information about the project from DFO, with no response. The final CSR was finished and available for public comment in March 2000, shortly after the six week review period commenced.

The proponent held three open houses in the area, one on February 13, 1997 in Timmins (attended by 150 people) and one on May 8 and 9, 1997 in each of Timmins and in Connaught (attended by 110). A fourth meeting was held on June 3, 1997 to address public concerns about the mine access road and the power line. Most of the concerned local people who attended these open houses told Northwatch that they did not understand that these open houses were considered to be a public consultation in the CEAA process. They thought they were part of a public relations program for the mine.

One hundred thirty-seven individuals expressed concerns with respect to the project in either letters, directed comments or signing a petition. These concerns were not treated respectfully by the company or the Responsible Authorities; the CSR described the concerns as having been satisfied with the exception of two individuals.

2. The New Electronic Registry is weaker than the existing system.

There is an assumption that affected persons have access to sophisticated computers and telephone lines.

MiningWatch Canada works regularly with people and organisations in communities affected by mines who rely on facsimile information, post or courier; or on antiquated computer technology. The requirement that paper documents be kept in convenient locations must be retained.

3. The Minister must be able to change Environmental Assessment Tracks if public concern or new information warrants it.

Niocan has proposed an underground niobium mine near Oka Québec close to a closed columbium mine that had been operated by St-Lawrence Columbium. The mine has been exempt from Environmental Assessment under the BAPE, because its projected production falls short of the levels for automatic inclusion. However, there has been a growing outcry as more information about the mine comes to the attention of the community.

The mine will impact on over 28 sq. kms of land in a homogeneous and dynamic agricultural area, which markets directly from the farms to the population of Montreal. This area includes the traditional territory of the Mohawks of Kahnesetake, and will affect their water supply and their farms. The mine will draw down significant amounts of water from the aquifers. Further, the mine will have radiological effects. Isotopes of radium and polonium exist in elevated concentrations in the ore body that Niocan proposes to mine. These and other radioactive materials (including Radium 226, Lead 210 and Thorium 230) will be left behind in the large volumes of radioactive wastes left over from the mining operations in slag and tailings. It is intended to use water from the processing to water farmers fields. The Environmental Impact Study done for Niocan did not include any expertise on radioactivity, nor does the company have any management plan for dealing with these radiological effects.

As the population became more aware of these problems, the public has become more involved. First, a referendum was carried out by the Parish of Oka, with more than 60% of the population opposing the mine. Then the municipality hired their own consultant, Donat Bilodeau, who found that the mine would have a more dramatic effect on the aquifers than Niocan had predicted. Then the Mohawk Council of Kanesatake entered the fray, hired their own lawyers and consultants, and are opposing the mine in court, in an appeal of a decision by the Commission for the Protection of Agricultural Territory of Québec (CPTAQ) to allow the mine to proceed.

The questions about the mine has now reached a point where a case could be made that, despite the production levels from the mine, the level of public concern is such that it warrants a full environmental assessment under the Québec Act. Further, the radiological concerns, Aboriginal use and interest questions, and the location of the mine near a trans-provincial river are all reasons for CEAA to get involved.

4. The new regulations should make it impossible for deals to be worked out with proponents to avoid triggering CEAA.

The Lac des Iles Mine expansion is a case in point. North American Palladium, Canada's only primary producer of palladium, operates a large open pit mine 85 kilometres northwest of Thunder Bay. The Lac des Iles Mine recently began a major expansion, expecting to move from a 2,400 tonnes per day mill production to 15,000 tonnes per day by the end of the year, with an expected mine life of 11 years. The massive scale of the mine will be visible from a distance, with waste rock piles towering above the local terrain at 80 metres high, twice the height of the highest natural feature in the region. In 1997, Lac des Iles was operating as a high grade, low tonnage open pit mine. With the massive expansion, the mine will become a low grade, high tonnage operation. The current expansion includes the construction of a new mill, warehouse, maintenance shop, assay laboratory and water treatment plant in addition to the expansion of the mining operation itself.

The expansion of the mine has not been assessed under the Canadian Environmental Assessment Act. Under federal environmental assessment law, any mine expansion that would increase ore capacity by 50% or 1,500 tonnes per day is to go through a comprehensive study because, as the regulation states, "certain projects are likely to have significant adverse effects" given their size. But, according to sources in the provincial government, the company has "worked with the Department of Fisheries and Oceans" in order to avoid it. Provincial reviews have been piecemeal, with the Ministry of the Environment amending already existing approvals to accommodate the increase in mine effluent treatment and discharge and air discharges, and the Ministry of Northern Development and Mines accepting an amended closure plan.

According to industry reports, the mine received the necessary construction permits just 60 days after deciding to expand. Conversely, the Department of Fisheries and Oceans took more than twice that time to respond to inquiries about the federal review of the mine expansion.

Potential triggers for a review include permits for the destruction of fish or fish habitat, including destruction through the deposit of deleterious substances - such as mine effluent - into waters occupied by fish. The Lac des Iles mine expansion includes numerous areas of environmental concern, including impacts and activities which seemingly fall into those which should have triggered a federal review, including:

  • installation of a sewage treatment plant
  • new mill and concentrator plant, expanded open pit, living complex including kitchens and recreational facilities, and related infrastructure
  • dewatering of the Walter Bog
  • water taking of 30 million litres per day, through pit dewatering and taking from Lac des Iles
  • discharge of mine effluent from multiple discharge points into Camp Creek and Hasson Lake
  • construction of additional dams for tailings impoundment, including in an area with fish habit
  • the potential for long term water impacts in the future, as a result of acid mine drainage and subsequent metal leaching.

5. Programs and policies should be able to trigger Environmental Assessments.

We find that we are frustrated at our inability to engage in discussions of the environmental implications of broad programmes and policies. Trade policies are a case in point.

In Tanzania, Ghana and the Philippines, the Canadian government has been actively promoting the development of large scale gold mining owned by Canadian companies, and the forcible eviction of thousands of artisanal miners who have been working the claims. Political risk insurance is provided for many of these companies through Export Development Canada. No Environmental Assessment of the implications of this policy has ever been done in Canada, although intensive studies, such as that done by Thomas Akabzaa in Boom and Dislocation, make it abundantly clear that the policy contributes to environmental degradation and poverty.

6. There is an unrealistic reliance on mitigation measures that frequently do not work or are not carried out.

In our experience, CEAA decisions to allow a project to go ahead rely too heavily on the mitigation of adverse environmental effects, even when these effects may be extremely damaging to the environment. Often these mitigation measures do not work, or are unenforceable. When they fail, compensation and fines cannot make up for the damage to the environment. I offer three examples:

a. Diavik (I)

The Diavik Diamond Mine put forward a number of mitigation measures and commitments on which the permit to proceed was based. The environmental assessment of the project required that all regulatory approvals be granted before the project proceed. On December 31, 1999, Diavik applied for a land use permit to quarry 40,000 cubic meters of rock on the site, and it was refused by the Department of Indian Affairs and Northern Development (DIAND) on the basis that the Environmental Agreement had not yet been signed off by the Minister. At the end of January, a routine inspection by DIAND showed that Diavik was already quarrying a large area on the site, and had 115-120 people working there.

b. Diavik (II)

Diavik Diamonds is building a massive dyke on Lac de Gras 300 kilometres northeast of Yellowknife. When it is finished, the dyke will hold back a tiny portion of the 60-kilometre long lake. Once the water is drained, the company will begin open pit mining of kimberlite pipes on the lake bottom. Diavik expects to mine up to six million carats of diamonds at Lac de Gras when full production begins in 2005. Construction of the dyke and the rest of the project is in full swing. A massive 4 kilometre rock wall stretches out from the land and curves around in a horseshoe shape. This wall is about 30 metres wide, about the size of a road.

Diavik has been using plastic silt curtains to contain the muddy water created by the dyke construction and to protect fish habitat in the rest of the lake. The silt curtain floats from surface down to the lake bed to about two metres below the lake bed, and when muddy water is stirred up by the construction, the current takes this muddy water away from the construction area and the silt curtain redirects that muddy water back to the lake bed where the muddy water settles quicker. The curtain is supposed to reduce the impact of muddy water they have outside the construction area. It's one of the conditions under the water licence.

However, during a bad storm in August 2001 and at other times during the summer, part of the curtain came off its anchors and blew inland. It was just a lump of plastic at that point. At one point where these curtains blew inland, staff from DFO noticed that some of the murky water inside the silt curtain had been lost into the rest of the lake. The curtains could not be fixed until the weather calmed.

However, levels for Total Suspended Solids set by the Mackenzie Valley Land and Water Board for the Diavik Project were high enough that, according to Carl Loughton, the manager of regulatory reviews for the board, "even a massive failure of the silt curtain wouldn't be a problem."

c. The Ekati Mine.

In 1996, after an extensive federal environmental assessment panel reviewed the proposed development, the Ekati Mine was given permission to proceed. As part of the Environmental Agreement signed by BHP and federal and territorial governments, an Independent Environmental Monitoring Agency was established.

On March 31, 2001, the Agency reported on its findings. It found two very disturbing and completely unanticipated problems at the mine:

  • Although the BHP 1995 Environmental Impact Assessment did not predict it, there have been downstream changes in the Koala watershed geochemistry and aquatic environment including depressed oxygen levels in certain lakes, increases in phyto-plankton abundance — probably due to increased nitrates from explosives — and slight increases of sulphates, arsenic, copper and nickel in some lakes downstream.
  • Mining activities result in large amounts of waste rock being brought to the surface and deposited there. In the 10 months from April 2000 to February 2001, over 30 million tonnes of waste rock were produced from 3 pits. These piles tower over 50 metres above the natural profile of the landscape. It has now been discovered that acid rock drainage is developing in these waste rock piles, as a result of the oxidation of sulphide materials in the rock, some in violation of the water licence. No one knows how to stop AMD once it starts.

7. The EDC should come under CEAA.

We are members of the NGO working group on the Export Development Corporation, and support the inclusion of the EDC under CEAA. The Environmental Review Framework developed by the EDC will not be effective in protecting the environment, and it leaves the EDC to police itself.