(Vancouver) Do citizens have a right to be consulted about proposed large industrial developments? This question is at the heart of a major appeal to be heard by the Federal Court, May 15th – the ruling will profoundly influence efforts to protect Canada’s environment.
In September, the Federal Court ruled that the Department of Fisheries and Oceans and Natural Resources Canada acted illegally in shielding the proposed Red Chris copper and gold mine, in northern British Columbia, from a comprehensive environmental assessment with public consultation.
The ruling endorsed arguments made by lawyers for Ecojustice (formerly Sierra Legal Defence Fund) who were acting for MiningWatch Canada, a national organization that advocates for accountable mining and that had attempted to participate in the environmental review of the Red Chris proposal. It is considered a major victory as it upheld a law passed by Parliament in 2003, which required a greater role for public consultation in environmental assessments.
“We are defending the original Federal Court decision, and the right of members of the public to be heard before the government decides whether major industrial projects go ahead,” said Lara Tessaro, the Ecojustice lawyer arguing the appeal case.
Under the Canadian Environmental Assessment Act and Cabinet regulations, metal mines processing more than 3,000 tonnes of ore per day must undergo comprehensive assessments, with public participation. The Red Chris Mine could produce 30,000 tonnes of ore a day. The company behind the project, Imperial Metals, proposes to turn fish-bearing streams into a tailings impoundment and waste rock dumps that would contain hundreds of millions of tonnes of toxic materials – threatening contamination of the Stikine watershed for centuries to come.
DFO and NRCan, however, undertook a simple screening assessment that excluded public participation. Among those who would have been silenced are elders from the community of Iskut, who have tried to prevent the Red Chris mine and other developments proposed in an area known as the “Sacred Headwaters” of the Stikine, Nass and Skeena rivers.
“It is crucial that the public have a voice in environmental assessments, to balance the views of a well-financed mining industry that puts profits ahead of the environment and the welfare of local communities” said Joan Kuyek, National Co-ordinator for MiningWatch.
The one-day appeal will be heard beginning at 9:30 a.m., Thursday, May 15th, at the Federal Court, Pacific Centre, 701 West Georgia Street, 6th Floor, Vancouver, BC.
For more information, please see background information at http://www.ecojustice.ca/ or contact:
Joan Kuyek, MiningWatch Canada (613) 569-3439
Lara Tessaro, Ecojustice (604) 685-5618 ext, 245, (604) 313-3132
Backgrounder: Red Chris Mine in the Federal Court Appeal
Red Chris Mine proposal
Imperial Metals, a Vancouver-based mining company, is seeking federal approvals to develop a copper-gold mine in north-western British Columbia. In 2007, Imperial Metals took over bcMetals Corporation, parent to the Red Chris Development Company Ltd.
The proposed Red Chris mine would be sited 18km from the village of Iskut, in Tahltan traditional territory.
The mine site is near an area known as the Sacred Headwaters, where northern BC’s three great salmon-bearing rivers begin: the Stikine, Nass, and Skeena Rivers. This is one of the few remaining wilderness regions of North America. Next door is the Spatsizi Plateau, BC’s largest roadless preserve, described by National Geographic Magazine as “the Serengeti of Canada.”
The mine would include two large open-pits and a plant that would process roughly 30,000 tonnes of ore every day for 30 years. As well there would be a large waste-rock dump and stockpiles of low-grade ore. Over its estimated 30-year lifespan, the mine would leave behind roughly 183 million tonnes of tailings and 307 million tonnes of waste rock. Acid drainage from the mine would likely require treatment for at least 200 years.
The mine would also require the construction of an explosives factory, new access and haul roads. It could not be developed without major power-line construction, including a major new transmission line up Highway 37 (the Stewart-Cassiar Highway).
The mine proposal will destroy fish habitat by converting natural creeks into a tailings pond, and by building dams and creek diversion structures. Turning fish-bearing lakes and waters into tailings ponds requires approval from the federal Cabinet, through an amendment to Schedule 2 of the Metal Mining Effluent Regulations. A federal environmental assessment must be completed before Imperial Metals could obtain this amendment from Cabinet.
Over the last three years, federal plans to redefine some fish-bearing waters as mine-waste dumps has been fought hard by communities and environmental groups across the country. MiningWatch Canada has been a leader in this battle.
The federal environment assessment of the Red Chris project began on May 19, 2004. Later that month, Fisheries and Oceans Canada (DFO) determined that the proposed project would require a Comprehensive Study level review, because the mine would process up to 30,000 tonnes of ore per day. Metal mines that produce more than 3,000 tonnes/day are listed, by Cabinet, in its Comprehensive Study List Regulations.
Projects listed on the Comprehensive Study List are subject to more rigorous environmental assessments. In comparison to the lower level screening assessments, comprehensive studies require consideration of alternative means of carrying out the project, and follow-up programs to ensure ongoing monitoring and compliance with mitigation measures.
Comprehensive studies require the federal Minister of Environment make decisions regarding a project, ensuring heightened accountability. Most important, in contrast to screening assessments, the public has mandatory rights to participate in comprehensive studies. These rights include consultation on the parameters of the assessment and comment on the comprehensive study report, and a funding program to facilitate public participation.
In the summer of 2004, Natural Resources Canada informed DFO that it was also responsible for assessing the mine proposal because a federal explosives permit was required.
In July 2004, the Canadian Environmental Assessment Agency briefed the new Minister of Environment, Stéphane Dion, including about the Red Chris Mine. The Agency informed Minister Dion that the Red Chris Mine would receive a comprehensive study and that DFO was “expected to initiate a 30-day public consultation period on the draft scope of the project in August.”
DFO did not, however, initiate a public consultation period on the draft scope of the Red Chris Mine in August 2004, or at any time thereafter.
In the meantime, the British Columbia government was undertaking its own environmental assessment. The public comment period for the BC process and issues ended in early January 2005.
By December 2004, senior officials at DFO Headquarters in Ottawa decided that a comprehensive study would no longer be required, and that they would assess the Red Chris Mine by a mere screening level assessment. They based this on their decision that the “scope of project” to be assessed would exclude the mine and its processing mill, and look at little more than the tailings impoundment. The following month, NRCan agreed with DFO’s decision to proceed by screening.
MiningWatch Canada, a national organization with a mandate to encourage environmentally and socially responsible mining practices in Canada, expressed concern to the federal government about this approach. As MiningWatch addresses federal involvement in mining issues, it had not participated in the BC review, and was waiting for the federal consultations to begin.
DFO and NRCan, however, did not allow any public participation in the federal screening, because after discontinuing the comprehensive study, consultation was no longer mandatory. MiningWatch Canada, along with every other interested Canadian citizen and organization, was therefore not allowed to participate in the federal assessment.
On May 10, 2006, DFO and NRCan notified the public that their screening assessment was complete, and that they had determined that the Red Chris Mine would have no significant adverse environmental effects.
Federal Court challenge
In June 2006, lawyers with Ecojustice (formerly Sierra Legal Defence Fund), acting on behalf of MiningWatch Canada, launched a lawsuit in Federal Court. The lawsuit asked the Federal Court to overturn the screening assessment. It also asked the Court to prevent DFO, NRCan, and the federal Cabinet from issuing any permits for the proposed mine, on the grounds that the federal government had unlawfully refused to consult the public in its environmental assessment of the Red Chris Mine.
The case was heard in June 2007. DFO and NRCan argued that they had discretion to determine what parts of a project merit assessment. They argued that, with this discretion, the federal agencies could cut the mine and processing mill out of the “scope of project” subject to assessment. Thus they argued that the need for public consultation was ultimately up to their officials’ discretion.
In a September 2007 ruling, Mr. Justice Luc Martineau agreed with MiningWatch. He condemned DFO and Natural Resources Canada for unlawfully evading a comprehensive study of the Red Chris Mine. In his reasons, Justice Martineau said that DFO\'s evasion of Comprehensive Study had “all the characteristics of a capricious and arbitrary decision which was taken for an improper purpose.” He ordered that the Red Chris Mine be denied any federal permits until it completed a lawful comprehensive study, complete with public participation.
This set an important legal precedent. Justice Martineau’s decision effectively confirmed that the Canadian Environmental Assessment Act, as amended by Parliament in October 2003, enshrined the right to public consultation for large industrial developments such as the Red Chris Mine.
The federal government’s appeal of this ruling, however, could undermine this historic precedent.
Mining Metals Effluent Regulations and the way forward
The Red Chris case is also significant as it touches on a heated controversy surrounding Metal Mining Effluent Regulations, which were amended in 2005 to allow the federal Cabinet to turn fish-bearing lakes and streams into tailings impoundment areas.
For this to happen, the Cabinet has to add the water body to Schedule 2 of the Metal Mining Effluent Regulations, by making an amendment. Before this can happen, a lawful environmental assessment is necessary.
If Red Chris clears a lawful environmental assessment, it nonetheless needs to obtain this regulatory amendment from the federal Cabinet.
When British Columbia’s proposed Kemess North mine recently sought approval to turn a lake into a waste dump, an independent Review Panel conducted the environmental assessment and found that the mine was “not in the public interest”, because of its potential negative environmental and cultural effects, including effects on the livelihood of a First Nation, and the First Nation’s refusal to allow a lake sacred to them to be used for tailings impoundment.
Likewise, MiningWatch believes that the Red Chris Mine should ultimately be referred to a Review Panel. A Review Panel is even more rigorous than a comprehensive study, as it is completely independent of government. It is the highest level of assessment under the Canadian Environmental Assessment Act.