Miningwatch Canada v. Canada (Fisheries and Oceans)

Miningwatch Canada v. Canada (Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2007-09-25
Neutral citation
2007 FC 955
File numbers
T-954-06
Notes
Reported Decision
Decision Content
Date: 20070925
Docket: T-954-06
Citation: 2007 FC 955
Ottawa, Ontario, September 25, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MININGWATCH CANADA
Applicant
and
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF NATURAL RESOURCES,
ATTORNEY GENERAL OF CANADA,
RED CHRIS DEVELOPMENT COMPANY LTD.
and BCMETALS CORPORATION
Respondents
REASONS FOR ORDER AND ORDER
TABLE OF CONTENTS
I – INTRODUCTION
II – THE PROJECT
III – REQUIREMENT OF AN ENVIRONMENTAL ASSESSMENT (EA)
A. DIVIDED AUTHORITY
B. PARTICULAR ASPECTS
1) Protection of fish habitat
2) Air-borne contaminants and other environmental risks
3) Endangered species
C. TRIGGERS TO THE EA OF THE PROJECT
1) Provincial triggers
2) Federal triggers
a) Definition of “project”
b) Federal authority
D. EA PROCESS UNDER THE CEAA
IV – FACTUAL BACKGROUND
A. PROVINCIAL ASSESSMENT
1) Preliminary decision
2) Terms of reference
3) Section 11 order
4) The Application and the Application Supplement
5) Public consultation
6) Consultations with First Nations
7) Assessment report
8) Environment assessment certificate
B. FEDERAL ASSESSMENT
1) Preliminary decision
2) Notice of Commencement
3) Initial tracking decision
4) Departments’ responses
5) Minister of Environment
6) Work plan
7) Subsequent tracking decision
8) Unresolved issue respecting the amount of water
9) The Scoping Decision of March 2005
10) Provincial assessment
11) Consultations with First Nations
12) Screening Report
13) The Course of Action Decision
V – THE PRESENT APPLICATION
VI – STANDARD OF REVIEW
VII – PRELIMINARY ISSUES RAISED BY THE RESPONDENTS
A. DELAY
1) Parties’ submissions
2) Determination by the Court
B. STANDING
1) Proponent’s submissions
2) Tri-part test
3) Exercise of the Court’s discretion to allow standing
VIII – MERITS OF THE CASE
A. PARTIES SUBMISSIONS
1) The Applicant
2) The Respondents
B. LEGISLATIVE SCHEME
1) Types of environmental assessment (tracks)
a) Screening
b) Comprehensive study
c) Review panel or mediator
2) The nature of scoping
C. CASE LAW
1) Bowen
2) Manitoba's Future Forest Alliance
3) Friends of the West Country Assn.
4) Canadian Parks and Wilderness Society
5) TrueNorth
a) Factual background
b) Judicial review application
c) Decision in first instance
d) Decision in appeal
D. COURSE OF ACTION DECISION REVIEWABLE
IX - CONCLUSION
REASONS FOR ORDER AND ORDER
I – INTRODUCTION
[1] Red Chris Development Company Ltd. (RCDC), a wholly-owned subsidiary of bcMetals Corporation (bcMetals), (collectively the Proponent), wishes to develop an open pit mining and milling operation for the production of copper and gold in the form of copper concentrates from deposits located in north-western British Columbia. This proposed mine development is known as the “Red Chris porphyry copper-gold mine project” (the Project).
[2] MiningWatch Canada (the Applicant) is a federally registered non-profit society. Functioning as a coalition of member organizations, the Applicant is principally interested in the environmental, social, economic, health and cultural effects of mining, in particular its effects on indigenous peoples.
[3] The Applicant challenges the legality of decisions or actions taken by the department of Fisheries and Oceans (DFO) and Natural Resources Canada (NRCan) in conducting the environmental assessment (EA) of the Project under the purported authority of various provisions of the Canadian Environmental Assessment Act, S.C. 1992, c. 32, as amended (the CEAA).
[4] The minister of Fisheries and Oceans and the minister of Natural Resources are represented in this proceeding by the Attorney General of Canada (collectively the Crown). The Proponent and the Crown are respondents in this judicial review application (collectively the Respondents). The Respondents support the decisions or actions taken by the DFO and NRCan (collectively the responsible authorities or the RAs).
[5] For the reasons below, I have decided to allow the present application. Current legislative and regulatory provisions mentioned in the present reasons for order are reproduced in Appendix “A”.
II – THE PROJECT
[6] The “Red Chris property” is the sole asset of RCDC and consists of mineral claims that cover an area of approximately 110 square km surrounding the proposed mine site. It is located within the Tahltan Nation traditional territory, in a sparsely populated area which is about 18 km southeast of the village of Iskut, 80 km south of Dease Lake and 450 km north of Smithers.
[7] More particularly, the proposed mine is situated on a terrace located on the Togadin Plateau on the boundary of two regional watersheds: the Klappan and Iskut River. The Project site is divided by White Rock Canyon Creek flowing into Coyote Creek and the Iskut River to the northwest; Quarry Creek, flowing into the Klappan River to the northeast; and the Trail Creek System draining to the south through Kluea and Todagin Lakes and the Iskut River.
[8] The Project falls within the Togadin Resource Management Zone of the Cassiar Iskut-Stikine Land and Resource Management Plan (CIS-LRMP), which recognizes mineral exploration, mine development and mine access as appropriate activities.
[9] The Project is based on the mill production rate of 30 000 tonnes of ore per day for sale to the export market, over a projected mine life of 25 years. The mine site would be accessed by a new long access road which would intersect highway 37 on the south side by Coyote Creek. The 550 tonnes of concentrate produced per day at the mill would be transported to the deep-sea port of Stewart situated about 200 km to the south of the proposed development. The Project is expected to require 228 million in capital expenditures and would generate 250 direct full-time jobs.
[10] Apart from the Project, current or reasonable foreseeable projects and mining activities in this area include: the Galore Creek project, an open pit mine that would process up to 60,000 tonnes per day of ore and produce up to 2,000 tonnes per day of gold-copper concentrate; the existing Tom McKay Lake waste rock and tailings project, near the Eskay Creek mine; the current and proposed Kemess North and existing Kemess South projects; and the Mount Klappan project.
[11] The power requirements for the Project are estimated at 37 megawatts (mw). Currently, the nearest existing source of power is BC Hydro’s substation located at Meziadin Junction, approximately 220 km south of the proposed mine site. RCDC proposes the construction of a new power line that would run parallel to the proposed new mine access road and link with the anticipated BC Hydro power line. RDCC has made a commitment not to begin construction until there is a commitment by the Province to build the power line.
[12] The proposed mining operation is a conventional shovel and truck open pit mine. Blast holes will be loaded with bulk explosives. Mine explosives would be stored in two separate areas close to the open pit. The explosives facilities would comprise a powder magazine, an emulsion tank with a 20,000 kg capacity, silos holding ammonium nitrate, and an explosives plant and garage (the explosives factory and magazine).
[13] It is expected that open pit mining would continue at a rate of 10.95 million tonnes (mt) of ore per year for 17 years, after which low-grade ore recovered from the stockpile would be processed for the remaining eight years. Plant design would be based on a standard porphyry copper flow sheet employing SAG and ball milling, flotation, regrinding, thickening and filtering to produce a concentrate for export with a moisture content of 8%. The Project would produce a total of 1.85 billion pounds of copper and 1,187,000 ounces of gold contained in concentrate.
[14] During the lifetime of the mine, the owner or operator would be depositing a deleterious substance (tailings) into a tailings impoundment area (TIA). The site proposed is in a Y-shaped valley approximately 3.5 km northeast of the Red Chris’ deposit. Construction of three dams would be required at the south, north, and the northeast arms of the valley. The total catchment area for the tailings impoundment including diverted areas would be around 2700 ha. The total diverted area would be around 1100 ha.
[15] During operations, water from the TIA would be discharged into Quarry Creek and following closure, water would be discharged into the unnamed Creek below Northeast Dam. Flows in Quarry Creek would likely increase by a predicted 119%. In the post-closure period, both water quantity and quality within Quarry Creek are predicted to return to pre-development conditions, as discharges from the TIA would then be released around the Northeast Dam into Northeast Arm Creek. Flow changes in the creek system downstream of the Northeast Dam are expected to be small during the mining operation but will increase substantially following closure due to the release of runoff water from the TIA through the Northeast Dam. In the post closure period, the tailings impoundment overflow through the Northeast Dam is expected to increase the new annual discharge by 157%.
[16] The proposed TIA would adversely affect some fish habitat, watercourses and aquatic resources. The two beaver dam colonies within the TIA site would be displaced from the TIA site during mine operations, as would mink, waterfowl and Western Toad, with the potential for their gradual return after reclamation of the site following mine closure. The water quality may also be affected by acid rock drainage and metal leaching (ARD/ML), a natural geologic event caused by the oxidation of acid rocks. Subsequent metal leaching and acidic runoff may reduce local water quality in the receiving environment if management of materials and treatment of runoff is not undertaken.
[17] All waste rock generated by the Project would be placed within the North waste rock dump by the operator of the mine. The North dump has been sited by RCDC so that all drainage from the dumpsite would gravity-flow into the TIA during the mine’s operation and life. The TIA would operate under a surplus water balance requiring the discharge of water to the receiving environment. Over the operating life of the mine (years 1 through 18) the amount of excess water to be discharged in the environment has been estimated by RCDC to average 6 million m3 per year (16,400 m3 per day). In the post-closure period, the amount of water to be discharged to the receiving environment would be 13 million m3 per year (35,600 m3 per day). RCDC would treat or otherwise manage the excess-tailings impoundment water to be released to the receiving environment, if necessary. During the mine’s operation life, the excess water to be released from the proposed tailings impoundment would be discharged by pump and pipeline to the north of the impoundment into the upper reaches of Quarry Creek that drains toward the Klappan River.
III – REQUIREMENT OF AN ENVIRONMENTAL ASSESSMENT (EA)
A. DIVIDED AUTHORITY
[18] The contemplated mine and mill, as well as associated works and activities related to the Project, all fall under the heads of local works and undertakings, property and civil rights, and matters of a purely local nature, and are thus under the jurisdiction of the Province of British Columbia (sections 92(10), (13) and (16) of the Constitution Act, 1867, 30 and 31 Victoria, c.3 (U.K.), as amended (the Constitution Act, 1867)).
[19] However, the effect of the Supreme Court decision in Friends of Oldman River Society v. Canada, [1992] 1 S.C.R. 3, is to confer on Parliament the power to provide for an environmental impact assessment in any matter within federal jurisdiction. This includes, among other matters, navigation (s. 91(10)), fisheries (s. 91(12)), federal public lands and Indian reserves (ss. 91(1A) and 91(24)), international and interprovincial rivers, interprovincial and international transportation and communication (s. 92(10)(a)), and the activities of industries within federal jurisdiction (s. 91, opening words and s. 92(10)(a), (b) and (c)).
[20] Indeed, in Friends of Oldman River Society, above, the dam on the Oldman River had an effect on navigable waters, fisheries and lands reserved for the Indians (there was an Indian reserve downstream from the dam site). These effects justified a wide-ranging environmental assessment encompassing the impact of the dam on those three subject matters, as well as any other federal matters that turned out to be implicated. Parliament had the power to provide for an environmental assessment as an incident of any institution or activity that was otherwise within federal jurisdiction. Moreover, “the scope of the assessment is not confined to the particular head of power under which the Government of Canada has a decision-making responsibility” [emphasis added]. On the other hand, the province also had authority to provide for environmental impact assessment of the project, both under provincial powers over natural resources and property and civil rights and also by virtue of its power to spend money.
[21] That being said, the criminal law power under section 91(27) of the Constitution Act, 1867 provides broad power to Parliament to prohibit activities that are harmful to the environment. This power has been used to uphold the Canadian Environmental Protection Act, R.S.C. 1985, c.16 (4th suppl.), which establishes a regulatory structure for the identification and control of toxic substances (R. v. Hydro-Québec, [1997] 3 S.C.R. 213).
B. PARTICULAR ASPECTS
1) Protection of fish habitat
[22] In the present case, the proposed mine development contemplates the construction of barriers and seepage dams, water supply and associated works, and of a tailings management facility as well as a water diversion system. This attracts Parliament’s jurisdiction over water resources and fisheries. Indeed, the Fisheries Act, R.S.C. 1985, c.F-14, as amended (the Fisheries Act) deals with the protection of fisheries and fish habitat. The two primary sections of the Fisheries Act that deal with environmental protection are section 35, protecting fish habitat and paragraph 36(3), prohibiting the deposit of any “deleterious substance” in water frequented by fish unless the deposit is authorized by regulations made by the Governor in Council.
[23] Apart from the contemplated harmful alteration, disruption or destruction of fish habitat (HADD), which requires an authorization from the Minister of Fisheries and Oceans pursuant to subsection 35(2) of the Fisheries Act, once the mine and mill will be in operation, deleterious substances (tailings) are likely to be deposited in water frequented by fish. The metals will come from milling operations, and from the precipitation runoff and groundwater draining through the North waste dump and across and through the exposed rock and the open pit walls.
[24] Moreover, over time, a significant proportion of the waste rock in the North waste dump and in the exposed wall rock is expected to become acidic, generating increased concentrations of metal contaminants that will require treatment to produce an acceptable quality of effluent for release to receiving waters.
[25] The Metal Mining Effluent Regulations, SOR/2002-222, as amended (the MMER) applies in respect of mines that exceed the threshold of an effluent flow rate of 50 m3 per day and deposit a “deleterious substance” in any water or place referred to in subsection 36(3) of the Fisheries Act (paragraph 2(1) of the MMER). The substances are set out in column 1 of Schedule 4 of the MMER and any acutely lethal effluent is prescribed as deleterious substances.
[26] Paragraph 1(1) of the MMER defines an “effluent” as “an effluent — mine water effluent, milling facility effluent, tailings impoundment area effluent, treatment pond effluent, treatment facility effluent other than effluent from a sewage treatment facility, seepage and surface drainage — that contains a deleterious substance.” Pursuant to section 4 of the MMER, the deposit of the deleterious substance in an effluent must not exceed certain levels of concentration and the deposit is conditional on the owner or operator complying with sections 6 to 27 of the MMER which prescribes effluent monitoring conditions. In the present case, RCDC recognizes that the MMER would apply and that monitoring will be necessary under the MMER if the Project is carried forward.
[27] In particular, section 6 of the MMER prohibits an owner or operator of a mine to combine an effluent with water or any other effluent for the purpose of diluting the effluent before it is deposited. However, the prohibition mentioned at section 6 of the MMER does not apply, and the owner or operator of a mine may deposit or permit the deposit of waste rock on an effluent that contains any concentration of deleterious substance into a TIA that is a water or place set out in schedule 2 of the MMER. Again, such authority to deposit will be conditional on the owner or operator complying with sections 7 to 28 of the MMER.
[28] In British Columbia, there are three TIAs currently mentioned in schedule 2 of the MMER: South Kemess Creek; Albino Lake and Tom MacKay Lake. Therefore, an amendment by the Governor in Council will be required to add the headwaters of Trail Creek as a TIA.
[29] Moreover, section 27.1 of the MMER (which came into force on October 3, 2006), obliges the owner or operator of the mine to prepare a “habitat compensation plan” for approval by the minister of Fisheries and Oceans. The purpose of a habitat compensation plan is to offset the loss of fish habitat resulting from the deposit of a deleterious substance into the TIA. The basis of this requirement is DFO’s “Policy for the Management of Fish Habitat” (1988). Key to this policy is the principle of “no net loss” with regard to works and undertakings. This policy has been applied to mining projects since 1986, and habitat compensation agreements have been negotiated for a number of mining projects.
2) Air-borne contaminants and other environmental risks
[30] In the case at bar, potential sources of air-borne contaminants from the Project include the construction and operation of the TIA and the explosives factory. Indeed, in its material submitted to the provincial and federal authorities, RCDC has identified air contaminants generated by construction equipment, drilling, blasting, loading, hauling and grading associated with construction of the tailings dams.
[31] Environmental effects pertaining to the explosives factory and magazine are general safety concerns, effluent management, waste handling, spill contingency and malfunction and accidents. The explosives factory also has associated exhaust gases and potential fugitive dust generated during construction by bulldozing, levelling, hammering, lifting and hauling equipment.
[32] Furthermore, licences will be required for the explosives factory and magazine contemplated in the Project. Under federal statutory law, the minister of Natural Resources may issue licences for factories and magazines under paragraph 7(1)(a) of the Explosives Act, R.S.C., 1985, c. E-17, as amended(the Explosives Act). The Explosives Regulatory Division (ERD) within NRCan also issues mechanical ammonium nitrate fuel oil (AN/FO) certificates, which are granted to companies producing AN/FO with powered equipment to be discharged directly into a borehole at a specified location, mine or quarry owned by the company to which the certificate is issued.
3) Endangered species
[33] In 2002, Parliament adopted comprehensive legislation binding on Her Majesty in right of Canada or a province to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened: the Species at Risk Act, S.C. 2002, c. 29, as amended (SARA), sections 5 and 6.
[34] Pursuant to subsection 79(1) of SARA, every person who is required by or under an Act of Parliament to ensure than an EA of a project is conducted, must notify the minister of the Environment that a project is likely to affect a listed wildlife species or its initial habitat.
[35] In the case at bar, such notice was given to the minister of the Environment by DFO in February 2005. In this regard, the Western Toad, found within the proposed TIA site, is listed in Schedule 1 of SARA.
[36] Accordingly, pursuant to subsection 74(2), the RAs must ensure that measures are taken to avoid or lessen those effects and to monitor them. Further, these measures must be taken in a manner that is consistent with any applicable recovery strategy and actions plans.
C. TRIGGERS TO THE EA OF THE PROJECT
[37] In the case at bar, the Project is subject to the requirement of an EA under both the Environmental Assessment Act, S.B.C. 2002, c. 43, as amended (the Provincial Act) and the CEAA.
1) Provincial triggers
[38] For the purposes of the present judicial review application, it is not necessary to undergo a detailed analysis of all relevant provisions of the Provincial Act except to note that under section 8 of same, an environmental assessment certificate is required before a “reviewable project” can proceed.
[39] Indeed, RCDC’s proposal to construct, operate, dismantle and abandon the Project constitutes a reviewable project, as contemplated by Part 3 of the Reviewable Projects Regulation, B.C. Reg. 370/02, as amended, because the proposed copper-gold mine is a new facility with a production capacity of greater than 75,000 tonnes per year of mineral ore.
[40] An environmental assessment certificate under the Environmental Assessment Act, S.B.C. 2002, c.43, as amended (the EAA); a permit under the Mines Act, R.S.B.C. 1996, c. 293, as amended (the MA); a special use permit under the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159, as amended (the FPC); and a licence to cut under the Forest Act, R.S.B.C. 1996, c. 157, as amended (the FA) must be delivered or issued by the responsible provincial authorities for the purpose of enabling the Project to be carried out in whole or in part.
2) Federal triggers
[41] Under federal law, pursuant to paragraph 5(1) of the CEAA, an EA is required for a “project” if a “federal authority” is the proponent of the project; provides financial assistance to enable the project to be carried out; administers federal lands or transfers the administration and control of those lands to a province for the purpose of enabling the project to be carried out; or issues a prescribed permit or licence or grants a prescribed approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part [emphasis added].
[42] However, an EA is not required under section 5 of the CEAA where the project is described in the “Exclusion List” (EL) found in the Exclusion List Regulations, SOR94-634, as amended (the ELR), made under paragraph 59(c)(ii) of the CEAA (see section 7 of the CEAA). The EL applies to the following general areas: agriculture; electrical and nuclear energy; oil and gas pipelines; forestry; water projects; transportation; national parks; national parks reserves; national historic sites; and historic canals. The EL exempts projects with insignificant environmental effects from EAs. The Project is not mentioned on the EL.
[43] As can be seen, an EA under the CEAA can only be conducted with respect to a “project” and there must be a “federal authority” involved. Both of these conditions are met in the present case.
a) Definition of “project”
[44] The Project has been fully described in the preceding section of the present reasons (see above, I - The Project). To summarize, the Project comprises the following undertakings: two open pits; a mine camp, maintenance shop and associated works; a processing plant; a TIA and associated water diversion system; waste rock dump and low grade ore stockpiles; an explosives factory and magazine; water supply and associated works; any off-site or on-site compensation or mitigation projects as may be required; a new access and haul road and related infrastructure; a new power line; any other physical works on facility activities included in constructing, operating and decommissioning the above facilities.
[45] In relation to a “physical work”, paragraph 2(1) of the CEAA defines a “project” as being “any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work”. Moreover, a project can also be “any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b)” [emphasis added]. The Project comes within the scope of the definition of project found in paragraph 2(1) of the CEAA.
[46] In this regard, the Inclusion List Regulations, SOR/94-637, as amended (the ILR), made pursuant to paragraph 59(b) of the CEAA, sets out those physical activities and classes of physical activities not relating to physical works which, nonetheless, must be considered as a “project”. The broad areas to which the ILR applies include: national parks and protected areas; oil and gas projects; nuclear and related facilities; defence; transportation; waste management; fisheries; flora and fauna; projects on aboriginal lands; northern projects (Yukon and Northwest Territories); and forests. Part VII of the Schedule entitled “Physical activities and classes of physical activities” (the IL) deals with “fisheries”.
[47] More particularly, the IL applies to a number of activities carried out in the water body or adjacent to a water body, which includes: 1) the harmful alteration, disruption or destruction of fish habitat (HADD) by means of physical activities, or by means of draining or altering the water levels of a water body, or by means of erosion control measures, that require the authorization of the Minister of Fisheries and Oceans under subsection 35(2) of the Fisheries Act; and 2) the deposit of a deleterious substance in an effluent that requires authorization under regulations made by the Governor in Council pursuant to subsection 36(5) of the Fisheries Act (see items 42 to 47 of the Schedule to the ILR). Accordingly, any such physical activities contemplated in the Project are covered by the IL, and thus come under the ambit of the CEAA.
b) Federal authority
[48] In the case at bar, no federal authority is the proponent of the Project or provides financial assistance to enable the Project to be carried out. However, as explained below, at least two federal authorities, DFO and NRCan, must take certain regulatory actions in order to permit the Project to be carried out in whole or in part. Paragraph 5(2) of the CEAA further makes it clear that an EA is also required before the Governor in Council issues a prescribed permit or licence or grants a prescribed approval or takes any other action for the purpose of enabling the project to the carried out in whole or in part.
[49] In this regard, the Law List Regulations, SOR 194-636 as amended, (the LLR) made pursuant to subsections 59(f) and (g) of the CEAA, lists the provisions of any Act of Parliament or any regulation made pursuant to any Act of Parliament that confer powers, duties or functions on federal authorities or the Governor in Council (Cabinet), the exercise of which requires an EA under paragraph 5(1)(d) or subsection 5(2) of the CEAA. This list is exhaustive, not open, and therefore any powers, duties or functions found outside the law list will not require an EA.
[50] In the case at bar, an EA is mandatory under paragraph 5(1)(d) and 5(2)(a) of the CEAA because the Project requires: 1) an authorization from the minister of Fisheries and Oceans pursuant to subsection 35(2) of the Fisheries Act for the HADD of fish habitat; 2) the issuance of a licence by the minister of Natural Resources under paragraph 7(1)(a) of the Explosives Act for the contemplated explosives factory and magazine; and, 3) an amendment by the Governor in Council of Schedule 2 of the MMER taken under the authority of subsection 36(5) of the Fisheries Act to include the headwaters of Trail Creek as a TIA (see Schedule I, Part I, items 5 and 6 and Schedule II, items 5 of the Law List Regulations).
D. EA PROCESS UNDER THE CEAA
[51] In conducting an EA under the provisions of the CEAA, the Government of Canada, the minister of Environment, the Canadian Environmental Assessment Agency (the Agency), and all bodies subject to the provisions of this Act, including federal authorities and responsible authorities (RAs), shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.
[52] In this regard, a RA shall not exercise any power or perform any duty or function referred to in section 5 of the CEAA in relation to a project unless it takes a “course of action” pursuant to paragraph 20(1)(a) or 37(1)(a) of the CEAA (subsection 11(2) of the CEAA). The CEAA is binding on Her Majesty in right of Canada or a province (section 3 of the CEAA).
[53] Where there are two or more RAs in relation to a project, as in the case at bar, they must together determine the manner in which to perform their duties and functions and follow the procedures set out in the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97-181 (subsection 12(1) and paragraph 59(a) of the CEAA).
[54] A federal environmental assessment coordinator will coordinate the participation of federal authorities in the environmental assessment process for a project where a screening or comprehensive study is or might be required and to facilitate communication and cooperation among them and with provinces (section 12.1 of the CEAA). In the case at bar, the federal environmental assessment coordinator for the Project was the Agency (sections 12.4 and 61of the CEAA).
[55] Every federal authority that is in possession of specialist or expert information with respect to a project shall, on request, make available information or knowledge to the RA (subsection 12(3) of the CEAA). In this case at bar, Environment Canada and Health Canada, as expert federal authorities, provided expert advice to the RAs. More particularly, advice was received from Environment Canada on water quality, hydrology, wildlife, climate, air quality and potential malfunctions and accidents. Expert advice was received on health matters from Health Canada.
[56] Some clarification must be made with respect to the content of Schedule 2 of the MMER and the role of the federal authorities involved in the EA of the Project. In this case, prior to any action by the Governor in Council under the MMER, the RAs shall consider the applicable reports and comments referred to in sections 20 and 32 of the CEAA, and make their recommendations to the Cabinet accordingly.
[57] That being said, where a screening or comprehensive study of a project is to be conducted and a jurisdiction, such as a government of a province, has a responsibility or an authority to conduct an assessment of the environmental effects of the project or any part thereof, the RA may cooperate with that jurisdiction respecting the environmental assessment of the project (subsection 12(4) of the CEAA).
[58] In this regard, the “Canada-British Columbia Agreement for Environmental Assessment Cooperation (2004)” (the Agreement), provides that where Canada and British Columbia have an environmental assessment responsibility for a proposed project, such as the Project, a cooperative environmental assessment will be administered under the Agreement, to generate the type, level, and quality of information to meet the environmental assessment requirements of each government, while maintaining the existing roles and responsibilities of each level of government (see sections 11 and 20 of the Agreement) [emphasis added].
[59] Indeed, the contacts and the authorities required to ensure that an EA of the project is conducted in accordance with the CEAA or its regulations must develop, as early as practicable in the cooperative environmental assessment process, a project-specific work plan of a cooperative EA that may include the scope of the project to be assessed and the factors and scope of the factors to be considered (section 14 of the agreement).
IV – FACTUAL BACKGROUND
A. PROVINCIAL ASSESSMENT
[60] On October 2, 1995, American Bullion Minerals, the previous owner of the Project, submitted an application (the Original Application) to the BCEAO for a project approval certificate for the Project under the Environmental Assessment Act, R.S.B.C. 1996, c.119 (the Former Provincial Act).
[61] The final project report specifications for the Project were issued by the BCEAO on June 18, 1996, and an assessment of the Project under the Former Provincial Act was in progress when the Provincial Act came into effect on December 30, 2002. A transition order issued under the Provincial Act required the submission of the information in the project report specifications to be submitted by June 18, 2003, or the current EA would be terminated.
[62] On June 17, 2003, RCDC formally withdrew from the environmental assessment process with the intention of re-entering the process by submitting a new project description at a future date.
[63] On October 27, 2003, a new project description based on a nominal mill production rate of 25,000 tonnes per day for a period of 18 years was submitted to BCEAO by RCDC. The new project description also described the Project and the proposed scope of studies for the EA of the Project.
1) Preliminary decision
[64] On November 19, 2003, BCEAO issued an order pursuant to paragraph 10(1)(c) of the Provincial Act stating that the Project was reviewable and that an environmental assessment certificate would be required prior to the Project proceeding. BCEAO set up an interagency committee (the Working Group) to provide advice to RCDC and to assist in the review of the terms of reference and other documentation provided by RCDC. First Nations and provincial and federal government agencies were represented in the Working Group.
2) Terms of reference
[65] The provincial environmental process does not require public consultation on the “terms of reference”, which set the scope of the Project. On March 25, 2004, RCDC submitted “draft terms of reference” for the application to the BCEAO (the Draft Terms of Reference), which were made available for comment to provincial and federal agencies, local government and the Tahltan and Iskut First Nations, but not the public. In its foreword, the following explanation was provided by RCDC:
These Terms of Reference have been developed by RCDC in accordance with the BCEAA in order to define the information requirements necessary for inclusion in an Application for an Environmental Assessment Certificate (“AEAC”) in order to allow for a determination of the significance of potential environmental, heritage, social, economic and health effects of the Project and the adequacy of measures proposed to prevent or mitigate such effects.
In anticipation that the Project will also be subject to review under the Canadian Environmental Assessment Act (“CEAA”), these Terms of Reference also include the information requirements necessary to meet the requirements of CEAA. In such case, it is expected that the cooperative environmental assessment process will be undertaken as provided for in the Canada-British Columbia Agreement for Environmental Assessment Cooperation. [emphasis added]
[66] On June 18, 2004, BCEAO approved final terms of reference for the Project (the ATOR). The passage contained in the foreword of the Draft Terms of Reference remained unchanged despite the fact that an EA under the CEAA had commenced in the meantime, that is on May 19, 2004 (see next subsection of the present reasons of order, Federal Assessment).
[67] On June 30, 2004, RCDC wrote BCEAO to advise that the Project was revised to a production mill capacity of 27,500 tonnes per day for a period of 18 years.
3) Section 11 order
[68] On August 4, 2004, BCEAO issued an order under section 11 of the Provincial Act stipulating the scope of the Project, the scope of assessment, and the procedures and methods for the review of the application and application supplement would be submitted by the Proponent to the Project Director within three years (the Section 11 Order).
[69] In particular, the Section 11 Order scoped the Project as follows:
1. Open pit mine
2. 27, 500 tonne per day mill
3. Tailings management facility
4. Waste Rock Storage Facility
5. Low Grade Ore Stockpile
6. Mine camp and associated works
7. New access/haul roads and related infrastructure
8. Upgrade of existing access roads and associated infrastructure
9. Water supply and associated works
10. Use of existing roads by concentrate trucks
11. Power supply and related infrastructure
12. Maintenance shop
13. Explosives storage and/or manufacturing facility
14. Any on or off-site compensation or mitigation works, as required
15. Ancillary facilities
16. Activities included in construction, operating, maintaining, and dismantling and abandoning the above facilities
17. Any other physical works or activities which, in the view of the Project Director, form an integral part of the project.
[70] Moreover, the Section 11 Order provided that the assessment of the Project would include consideration of the potential for environmental, social, economic, health and heritage effects, and the potential for effects on the interests of First Nations groups and would take into account practical means to prevent or reduce any potential adverse effects of the Project to an acceptable level.
[71] The Section 11 Order also established parameters and a time-frame with respect to the environmental assessment process, including the requirement for public consultation:
(a) The “pre-application stage” would focus on identifying Project-related issues to be addressed, based on consultations conducted by RCDC and/or the BCEAO with interested and potentially affected parties, including the public, First Nations, federal and provincial government agencies and local governments;
(b) The “application review stage” would focus on review of the application itself to determine whether or not identified concerns had been satisfactorily addressed, and would conclude with a decision made by responsible provincial ministers on the application, in this case the minister of Sustainable Resource Management, the minister of Water, Land and Air Protection and/or the minister of Energy and Mines (collectively the Provincial Ministers).
[72] The application review stage would be 180 days and was to commence after the Project Director had notified RCDC that the application had been accepted for review (section 3 of the Prescribed Time Limits Regulations, B.C. Reg. 372/2002). Prior to a final decision being made by the Provincial Ministers, the Project Director would hold a formal public comment period of 65 days in this case (section 7 of the Public Consultation Policy Regulation, B.C. Reg. 373/02). There would also be a First Nations consultation program.
[73] Following the expiry of the consultation process, the Project Director would then prepare an assessment report, outlining the issues raised during the review of the application, as well as any identified practical means to avoid or reduce impacts to an acceptable level. The Project Director would provide relevant government agenci