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

jamesm@yukon-news.com.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

d
Wyatt’s World

Wyatt’s World for March 5, 2021.

g
Yukonomist: School competition ramps up in the Yukon

It’s common to see an upstart automaker trying to grab share from… Continue reading

The Yukon government responded to a petition calling the SCAN Act “draconian” on Feb. 19. (Yukon News file)
Yukon government accuses SCAN petitioner of mischaracterizing her eviction

A response to the Jan. 7 petition was filed to court on Feb. 19

City councillor Samson Hartland in Whitehorse on Dec. 3, 2018. Hartland has announced his plans to run for mayor in the Oct. 21 municipal election. (Crystal Schick/Yukon News file)
Councillor sets sights on mayor’s chair

Hartland declares election plans

Whitehorse RCMP will provide internet safety training due to an uptick of child luring offences. (iStock photo)
RCMP hosting internet safety webinars for parents and caregivers

The webinars will take place on March 23 and 25

Chief Medical Officer of Health Dr. Brendan Hanley receives his first dose of the COVID-19 vaccine from Public Health Nurse Angie Bartelen at the Yukon Convention Centre Clinic in Whitehorse on March 3. (Crystal Schick/Yukon News)
State of emergency extended for another 90 days

“Now we’re in a situation where we see the finish line.”

The Yukon government says it is working towards finding a solution for Dawson area miners who may be impacted by City of Dawson plans and regulations. (Joel Krahn/Yukon News file)
Miner expresses frustration over town plan

Designation of claims changed to future planning

Team Yukon athletes wave flags at the 2012 Arctic Winter Games opening ceremony in Whitehorse. The 2022 event in Wood Buffalo, Alta., has been postponed indefinitely. (Justin Kennedy/Yukon News file)
2022 Arctic Winter Games postponed indefinitely

Wood Buffalo, Alta., Host Society committed to rescheduling at a later date

Crews work to clear the South Klondike Highway after an avalanche earlier this week. (Submitted)
South Klondike Highway remains closed due to avalanches

Yukon Avalanche Association recommending backcountry recreators remain vigilant

RCMP Online Crime Reporting website in Whitehorse on March 5. (Haley Ritchie/Yukon News)
Whitehorse RCMP launch online crime reporting

Both a website and Whitehorse RCMP app are now available

A man walks passed the polling place sign at city hall in Whitehorse on Oct. 18, 2018. The City of Whitehorse is preparing for a pandemic-era election this October with a number of measures proposed to address COVID-19 restrictions. (Crystal Schick/Yukon News file)
City gets set for Oct. 21 municipal election

Elections procedures bylaw comes forward

A rendering of the Normandy Manor seniors housing facility. (Photo courtesy KBC Developments)
Work on seniors housing project moves forward

Funding announced for Normandy Manor

Tom Ullyett, pictured, is the first Yukoner to receive the Louis St-Laurent Award of Excellence from the Canadian Bar Association for his work as a community builder and mentor in the territory. (Gabrielle Plonka/Yukon News)
Tom Ullyett wins lifetime achievement award from the Canadian Bar Association

Ullyett has worked in the Yukon’s justice ecosystem for 36 years as a public sector lawyer and mentor

Most Read