1. ENVIRONMENTAL ASSESSMENT –
WHERE IS IT GOING?
CANADIAN MINING LAW & FINANCE 2009
Negotiating Complex Markets
(Canadian Executive Forums)
Vancouver, June 15, 2009
Presented By:
Caroline Findlay (Blake, Cassels & Graydon LLP),
Gary Letcher (Edwards, Kenny & Bray LLP) and
Leon Botham (Golder Associates Ltd.)
2. 2
OVERVIEW
• Objective: To highlight significant developments &
trends in the EA arena
• Legal Considerations Red Chris; Kemess North
Panel; First Nations engagement
• Technical Considerations Climate Change,
Sustainability & Cumulative Effects
• Are we in a new era of sustainability?
3. 3
RED CHRIS
• The issue presented on the Appeal is whether a mine, or
any major industrial project, described on the CEAA
Comprehensive Study List must proceed by way of a
comprehensive study.
4. 4
RED CHRIS
• In Red Chris, DFO determined that the scope of the
“project” (that is, those aspects requiring assessment
under CEAA) necessitated only a screening report.
5. 5
RED CHRIS
• The Appeal will involve the harmonization of section 15
(Scoping) with section 21 of the CEAA.
• The Appellants also focus on the public consultation
aspects of section 21.
6. 6
RED CHRIS
• The real issue on the Appeal may be whether TrueNorth
in the Federal Court of Appeal was correctly decided.
7. 7
RED CHRIS
• TrueNorth was an oil sands project. DFO determined
that the scope of the project in relation to which the
CEAA environmental assessment was to be conducted
related to those specific components of the project that
were connected to the Fisheries Act approvals that had
triggered CEAA.
8. 8
RED CHRIS
• The Federal Court of Appeal held that DFO, as the RA,
were not required to scope the project as the entire oil
sands undertaking and thus were entitled to conduct a
screening level assessment.
9. 9
RED CHRIS
• In interpreting the statute, the Supreme Court of Canada
will be called upon to consider the purposes of the Act as
set out in section 4. Section 4 makes express reference
to sustainable development and, accordingly, the Court
will be called upon to comment upon sustainable
development at least in the context of the CEAA.
10. 10
“One of the most important benefits of a panel review is the
integration of public values into the review process... By the time
that the hearing record closed in May 2007, federal and provincial
government agencies had advised the Panel that, in almost all
important respects, the Project could be implemented in a manner
consistent with their respective programming and regulatory
objectives. While this is an important consideration, the Panel
recognizes that most agencies examine the question of Project
acceptability primarily from the perspective of their own well-
defined mandates. The Panel believes that it is also necessary
to evaluate the Project effects holistically, and to incorporate
values expressed by the public. In the Panel’s view,
compatibility with government requirements does not
necessarily mean the Project would not cause adverse
effects… or would necessarily be in the public interest.”
Kemess North Copper-Gold Mine Project Joint Review Panel Report
(September 17, 2007) at 232.
11. 11
SUSTAINABILITY – EVERYTHING OLD
IS NEW AGAIN
• The Kemess North Panel’s sustainability perspective is
not new; this balancing act is at the heart of all traditional
environmental laws
• Foundational principle in Brundtland Commission’s 1987
Report, that coined the concept of sustainability
• Sustainable development is “development that meets the
needs of the present without compromising the ability of
future generations to meet their own needs.”
12. 12
DEVELOPMENT STAGE
CONSIDERATIONS
• 2007: 19 out of 50 mining projects nationwide were in
BC; now 26 BC projects
• over past 6 years, 10 mines have been approved
under the EA process
• Kemess North – not approved
• Red Chris – approved but subject to litigation
13. 13
KEMESS NORTH
• referred to joint review panel and report recommended
the project not be approved
• March 7, 2008 – Ministers of Energy & Mines and
Environment accepted Panel’s recommendation to
refuse to issue an EA Certificate
14. 14
KEMESS NORTH
• Panel’s Analysis
– holistic approach following the “five sustainability
perspectives”:
1. Environmental Stewardship
2. Economic Benefit & Costs
3. Social and Cultural Benefits & Costs
4. Fair Distribution of Benefits & Costs
5. Present vs. Future Generations
15. 15
KEMESS NORTH
• Panel’s Key Issues:
1. the impact of the loss of Duncan (Amazay) Lake on
Aboriginal peoples;
2. the long term legacy of environmental management
related to the use of Duncan (Amazay) Lake to
dispose of waste rock and tailings;
3. the project’s lack of economic robustness and
vulnerability to fluctuations in currency and metal
prices; and
4. the modest anticipated operational life of the mine.
16. 16
FIRST NATIONS ENGAGEMENT
• In British Columbia, definitely a “new era” as the BC
Government embarks on a legislative initiative:
Recognition and Reconciliation Act
• Described as a “seismic” change in the law by the
Vancouver Sun (March 6, 20019)
• Proposes to develop new ways for shared decision-
making and revenue-sharing over land and resources
17. 17
FIRST NATIONS ENGAGEMENT
• Confluence with EA process is law on the duty to consult
& accommodate
• Framework set out by Supreme Court of Canada:
– Haida, Taku River and Mikisew Cree cases
• Recent affirmation that NEB process satisfies
consultation/accommodation process:
– Brokenhead Ojibway Nation v. NEB
• Open question: BC’s Mineral Revenue Sharing Policy
(November 2008)
20. 20
COMMULATIVE EFFECTS:
SPATIAL AND TEMPORAL BOUNDARIES
• Spatial Boundary
– Local study area
– Regional study area
– Beyond Regional Study Area
• Temporal Boundaries
– Development phases of the Project
– Predicted duration of effects on VCs from Project
– Incorporates sustainability
21. 21
COMMULATIVE EFFECTS:
EFFECTS ANALYSIS
• Examines all valid pathways that result in expected
changes to VCs, after implementing environmental
design features (i.e., residual effects)
• Measurement endpoints are used to analyze residual
effects to VCs for each valid pathway
• Analyses are quantitative and qualitative
• Predicted changes are described numerically and
qualitatively
22. 22
COMMULATIVE EFFECTS:
EFFECTS ANALYSIS
• Cumulative Effects
– Sum of all natural and human-induced influences on
VCs through time and across space
– Typically occur beyond the local and regional scales
– Project (incremental) effects occur at local and
regional scales
– Objective is to estimate the amount of change in a VC
that is due to the Project, other previous and existing
developments, and natural factors
25. 25
TRADITIONAL KNOWLEDGE
• Review panels are becoming more reliant on TK as well
as conventional scientific knowledge
• Proponents must:
– Make efforts to collect relevant Traditional Knowledge
– Include TK in project design, impact prediction and
mitigation measures
– Provide plans for cooperation between the developer
and traditional knowledge holders
26. 26
TRADITIONAL KNOWLEDGE
• Various models for inclusion of TK in Project design
– Impact Mitigation
• Erection of Inukshuks to divert Caribou from danger
– Environmental Stewardship
• First Nations becoming involved as regulator
– Sustainability
• First Nations becoming involved as partners in
project development
27. 27
CLIMATE CHANGE
• North is particularly vulnerable to climate change
• Proponents must evaluate projects as potential GHG
contributors
– Quantity of emissions
– Project alternatives, including GHG offsetting options
– Linkages between GHG prevention and other
environmental opportunities
• Include impacts of various climate change scenarios on
project development
29. 29
1. Appreciate the Meaning of Sustainability
2. Be Prepared for a Rigorous and Dynamic EA process
3. Watch for New Developments and Stay Vigilant on
Compliance and Due Diligence
CONCLUDING THOUGHTS:
STAYING SUSTAINABLE
