Supreme Court to rule on mining project consultation

A mining watchdog is taking Ottawa to the Supreme Court of Canada to determine whether the public can be involved in a mine's environmental assessment.

A mining watchdog is taking Ottawa to the Supreme Court of Canada to determine whether the public can be involved in a mine’s environmental assessment.

Federal bureaucrats have too much discretion in determining whether public input should be solicited before a mine is built, argues Miningwatch Canada.

The departments of Natural Resources and Fisheries and Oceans are shutting people out of major mining environmental assessments across the country by overriding laws in the Canadian Environmental Assessment Act.

The act, which is weakly enforced by the Canadian Environment Assessment Agency, was manipulated to keep the Red Chris mine in northern British Columbia from having to address public concerns about health and the environment, says Miningwatch.

The Supreme Court will hear the case October 16.

“At the end of the day, DFO gets to make the decision,” said Lara Tessaro, who works for Ecojustice, the law firm representing Miningwatch. “It made the decision, in this case, to study only parts of this mine, to do the minimal screening level and to exclude the public.”

The Red Chris mine, a copper-and-gold project 80 kilometres south of Dease Lake, was able to keep people in the region from influencing its environmental assessment because public servants in the Department of Fisheries and Oceans invented a legal loophole on the advice of their lawyers, said Tessaro.

In December 2004, the mine was deemed to require a screening rather than a comprehensive study. The public can be excluded from a screening, but must be part of a comprehensive study.

Determining the scope of the assessment is the most crucial part, said Tessaro.

If the government and the mine agree to study environmental impacts narrowly, excluding local concerns like air or water quality, they won’t be considered at all even if the public wants them to be.

“If they only get a chance, at the very end, to (review) the assessment, it’s too late because no one has studied air quality,” said Tessaro.

Red Chris demonstrates that bureaucrats have too much power to interpret environmental laws.

“We argue that whether or not a project is going to attract a comprehensive study – which is a thorough type of environmental assessment – is not something that a government bureaucrat can simply decide,” said Tessaro.

“It’s something that is determined by law and not discretion.”

Ottawa has been shirking its obligations by suggesting that BC also has environmental assessments that include public consultations, so it doesn’t have to ensure the public is involved.

“Our argument is twofold: firstly, (the Canadian Environmental Assessment Act) is a federal law and DFO has obligations under it,” said Tessaro. “They can’t simply point to someone else’s law to get out of its obligations.”

“Another point would be more concrete – in BC, the provincial environmental assessment laws are a lot weaker than our federal laws,” she said.

“So it’s no excuse to say we don’t need to do mandatory, rigorous consultations federally because they did some weaker and meaningless consultation provincially.”

But public servants are also making discretionary decisions on incredibly large projects.

The act explicitly requires any mine with production over 3,000 tonnes of ore a day to be subjected to a comprehensive study – which triggers a public consultation.

Red Chris is slated to produce over 30,000 tonnes of ore a day.

“The Red Chris mine is 10 times bigger than the type of mine listed on that regulation,” said Tessaro.

But bureaucrats redefined Red Chris’ environmental assessment by carving the project into different pieces, and deciding that, on their own, these individual little constructs didn’t need a comprehensive study.

And there’s nothing in the act that requires comprehensive studies for individual buildings, the government says, so it only has to enforce a much weaker kind of assessment with no public input requirement, known as a “screening.”

“By parsing these projects artificially into little slices, decision makers are not actually assessing the full picture of a mine’s impacts,” said Tessaro.

“It doesn’t make any sense either environmentally or legally to separate or split into little, artificial pieces.”

The government has also been blocking First Nations from getting money they would normally receive in a comprehensive study.

“By turning it into a screening, DFO deprived the First Nation of the funds it otherwise could apply for to participate,” said Tessaro.

The case includes letters sent to the department from the Iskut First Nation Band Council and the Tahltan Central Council, whose traditional territory covers the mine, complaining the First Nation received no attention or money during the assessment.

The Ruby Creek mine, a project north of Dease Lake in Taku Tlingit traditional territory, also got the same “screening” treatment that kept any public input from being provided in the environmental assessment.

Since the Supreme Court agreed to hear the case last December, mines across the country have been switched back and forth between screenings and comprehensive studies, said Tessaro.

Miningwatch has been fighting Red Chris over its environmental assessments since 2006.

The major difference between a screening and a comprehensive study is the latter would allow people to frame the environmental assessment so the scope of the study includes their concerns, said Tessaro.

“They need an opportunity at the very beginning to say, ‘We live very close to this mine, and make sure in your studies that you focus as well on impacts on our health,’” she said.

Tessaro, along with Greg McDade, will represent Miningwatch next Friday.

Red Chris, which is owned by Vancouver-based Imperial Metals, will be represented by a handful of major law firms.

Lawson Lundell will be Red Chris’s counsel, while Fasken Martineau and Gowling Lafleur Henderson will serve as agents.

The Department of Fisheries and Oceans could not be reached for comment.

Contact James Munson at