Canada: Morrison Copper/Gold Mine Project Refused Environmental Assessment Certificate

Last Updated: December 4 2012
Article by Kevin O'Callaghan

On September 28, 2012, BC Environment Minister Terry Lake issued a decision informing Pacific Booker Minerals Inc. (the "Proponent") that their planned Morrison Copper/Gold Mine project (the "Project") would not be issued an environmental assessment (EA) certificate. This was in keeping with the Executive Director's Recommendations (September 20, 2012) but contrary to the conclusions in the Environmental Assessment Office (EAO) that the project would result in no significant adverse effects1.

Several media sources have noted that the Project is only the second mining project to be denied an EA certificate from the Minister, and the second time a Director has recommended the Minister decline to grant an EA certificate despite a determination by the EAO that it would result in no significant adverse effects. While the Minister's decision is surprising in relation to standard practice, there were a number of issues in the EA process, including opposition from other Ministries and First Nations that may have influenced the result.

Due to the unusual nature of the Director's Recommendation and the Minister's decision, we have prepared a more in-depth analysis of this decision than our usual bulletin format.

About the project

The proposed mine is located 65 km northwest of Smithers, BC, adjacent to Morrison Lake, at the headwaters of the Skeena River. Morrison Lake is approximately 15 km long, and up to 1.5 km wide. It flows into Babine Lake before reaching the Skeena. Morrison Lake and its connected waterways are a spawning and rearing ground for a genetically unique sockeye salmon population, which is considered to represent an irreplaceable gene pool.

The proposed Project would be an open pit mine utilizing conventional truck and shovel equipment, with a 21-year mine life. At its closest point, the lip of the open pit is approximately 85 m from the shore of Morrison Lake. The proposed Tailings Storage Facility (TSF) would be located approximately 3 km northeast of the mine site, and would cover an area of approximately 5 km2.

EA Process

The EA process appears to have been characterized by a series of issues regarding water quality, hydrogeology and the potential effects to Morrison Lake, as well as claims of insufficient certainty regarding that information.2

The Proponent first submitted a project description to the EAO in 2003. Terms of reference for the project were approved on May 21, 2009. The Proponent's initial Application was submitted in September 2009, but was not accepted by the EAO as it did not meet the information requirements set out in the Terms of Reference. After re-submission, the Application Review began in July, 2010. From that point until September 2011, the review was suspended multiple times in order for the Proponent to provide additional information requested by technical reviewers.

On September 29, 2011, the EAO again suspended the process with only four days remaining in the review period, out of concern that the EAO could not come to a final conclusion on the potential for impacts to water quality and sockeye salmon in Morrison Lake due to the lack of appropriate information.

In the fall of 2011, the EAO took the uncommon step of retaining independent experts to conduct an external review of water quality and fisheries aspects of the Application, as well as other issues raised. The Proponent responded to the comments from the third party experts, and a further response on hydrogeology and water quality concerns was provided to the Proponent in April 2012, setting out the expert's remaining concerns. The Proponent provided a final report within the same month. A technical review of the water quality model used by the proponent was conducted by yet another third party expert in June 2012.

In August 2012, the EAO completed its Assessment Report, concluding that if the agreed upon mitigation measures were implemented and were to operate as proposed, the Project would result in no significant adverse effects. The EAO did note that there would be a long term decline of water quality in Morrison Lake, and their determination of "no significant adverse effects" means that the Proponent has demonstrated that "long term water quality can likely still meet British Columbia Water Quality Guidelines for the protection of aquatic life."

Environmental issues

The key environmental concerns arising from the Project relate to the potential effects to water quality and quantity in Morrison Lake, and the potential effects to fish and fish habitat.

As a result of these concerns, the Project description evolved significantly during the EA review process. Two primary issues were seepage from the proposed TSF into nearby Morrison Lake, and the potential for Mineral Leaching/Acid Rock Drainage (ML/ARD) from waste mine rock. In their final report of April 2012, the Proponent addressed the seepage concerns by proposing to line the TSF with a geomembrane that would reduce seepage to low levels.

The ML/ARD concerns arose largely in the context of mine closure. The Proponent proposed to store waste rock near the open pit while the mine was in operations, and then back fill the open pit on mine closure, covering the rock with a shallow pond. Several reviewers had questioned why waste rock could not be transported to the TSF and submerged before it became acidic, rather than left exposed to become acidic thereby contaminating the pond at the base of the pit on closure (keeping in mind that the pit's edge is 85 m from the lake). The Proponent determined that this alternative was not economically feasible. As a result, water collecting in the pit would require active water treatment into the distant future (100+ years from closure). Treated water, both during operations and after closure, would be discharged into the deepest part of Morrison Lake using an effluent diffuser. Over the long term, seasonal turn-over of water in the lake was expected to dilute the treated effluent to levels that could meet BC Water Quality Guidelines.

Effects to water quality and quantity were a particular concern for several reasons. On one hand, there was a high level of uncertainty with respect to the physical characteristics of Morrison Lake, such that relying on seasonal water turn-over in the Lake as a primary long term means of mitigation would operate as anticipated. On the other hand, Morrison Lake is an important ecosystem, in that it supports genetically unique populations of sockeye salmon, which are one of the largest stocks of non-hatchery sockeye. These stocks are important for their genetic diversity, and cannot be replaced if they are lost.

First Nations issues and consultation

The proposed Project lies within the asserted traditional territory of the Lake Babine Nation, who participated throughout the EA process. Part of the proposed transmission route passes through Yekooche First Nation's asserted traditional territory, and they were kept informed of studies but did not express an interest in direct government consultation. In 2010 the Gitanyow and Gitxsan First Nations contacted the EAO to express concerns with the proposed project as it related to their traditional fishing rights on the Skeena River. They were consulted from that point forward.

The EAO determined that the Lake Babine Nation has a moderate to strong prima facie claim for Aboriginal title to the Project area, and consulted with them accordingly. The Lake Babine Nation participated in project working group meetings, met directly with the EAO and the Proponent, and provided written feedback as well as a number of technical reports. In their final submission to the EAO, the Lake Babine Nation stated they remained strongly opposed to the Project, and disagreed with the EAO's assessment that the Project would not have significant adverse effects.

The Executive Director's Recommendations

The Executive Director of the EAO issued a report dated September 20, 2012 that recommended the Minister not issue an EA Certificate, despite the EAO's assessment report conclusions that there would be no significant adverse effects.

The Executive Director's report summarized the EAO assessment report and its conclusions with respect to addressing potential adverse effects, sufficiency of public consultation, and fulfillment of the Crown's obligation for consultation and accommodation to First Nations. The Executive Director recommended that the Ministers consider not only the EAO assessment report, but also adopt a risk/benefit approach in considering a number of other factors that arose during the assessment process. The Executive Director listed the factors that must be weighed in making the decision, quoted here in full:

  • the location of the proposed Project directly adjacent to Morrison Lake, which has a genetically unique population of sockeye salmon at the headwaters of the Skeena River that could be impacted if the Proponent's mitigations measures are unsuccessful;
  • the long-term environmental liability and risk from the proposed Project to the environment, as well as financial risk and liability to the Province, particularly if:
    • the Proponent's operations and closure plans are unsuccessful; or,
    • the Proponent is unable to resource long term closure plans;
  • the use of the dilution capacity of Morrison Lake as the primary means of mitigation for mine effluent, and in particular the "in-perpetuity" nature of water treatment and discharge into Morrison Lake;
  • the anticipated long-term decline in water quality in Morrison Lake;
  • the Proponent's currently limited knowledge about the physical limnology, behaviour and ecosystem of Morrison Lake, recognizing their mitigations depend upon certain assumptions regarding lake behaviour (e.g. lake turnover, flushing rates, etc).;
  • input from the Ministry of Energy and Mines which highlights concerns such as:
    • the "in-perpetuity" environmental liabilities of the proposed Project;
    • the unprecedented scale of the bond that would be required;
    • inconsistency with provincial Metal Leaching/Acid Rock Drainage policy; and,
    • uncertainties related to the Proponent's proposed water treatment;
  • input from the Ministry of Environment which highlights concerns with the following:
    • the "in-perpetuity" nature of water treatment;
    • the long-term maintenance of water treatment infrastructure; and,
    • the potential risks to fish populations and water quality if the Proponent's mitigations are unsuccessful or do not perform as predicted;
  • opposition from Gitxsan and Gitanyow Nations and Lake Babine Nation;
  • the strength of claim of Lake Babine Nation, in particular their moderate to strong prima facie case for Aboriginal title;
  • the economic effects on the Province, including tax revenue and job creation; and,
  • the Proponent's views regarding these additional factors.

However, the Executive Director did not include any analysis as to how these factors weighed in the risk/benefits analysis or why those factors led to his recommendation. In making sense of this recommendation, it is important to understand the context of the EAO assessment report.

Through the EA process, the EAO seeks to identify specific potential environmental effects of the Project, and require that the Proponent develop a plan to avoid, mitigate, or compensate for each of those effects. The assessment report conclusion that a specific effect will not result in a significant adverse effect is based on a consideration of each effect and associated mitigation measure in isolation, as well as on the assumptions that all mitigations would perform as described and that modelled outcomes could be achieved. The assessment report does not include any detailed risk assessment of the likely success of specific mitigation measures, nor the consequences should mitigation measures fail. It provides the basis for commitments that will legally bind the Proponent, but is not a decision making tool – the EAO is not a decision maker. The fact that the assessment report does not provide a complete answer to whether a project should receive an EA Certificate is anticipated in the Environmental Assessment Act, which provides at s. 17(3)(b) that "[...] ministers may consider any other matters that they consider relevant to the public interest in making their decision on the application [...]".

In this case, it is relevant that some of the other information regarding the decision was in opposition to the EAO assessment report. Critically, both the Ministry of Energy and Mines (MEM) and the Ministry of Environment, Environmental Protection Division (EPD) provided comments to the EAO indicating that they remained of the view that the Project presented significant risks. These comments featured prominently in the additional matters that the Director recommended the Ministers consider in refusing to issue the EA Certificate.

A highlight of the two Ministries' objections was the specific eco-system at risk. As noted, along with many important fish species, Morrison Lake supports a genetically unique and irreplaceable population of sockeye salmon. As with any project, there is some level of ongoing risk of uncontrolled drainage, spill and erosion. In this case, there is an additional level of uncertainty with respect to whether the proposed mitigation measures were based on accurate assumptions and models about the currents and flushing rates of Morrison Lake.

The other critical context was the ongoing opposition of the Lake Babine Nation. The potential consequences of environmental harm was amplified by the strength of the Lake Babine Nation's claim of Aboriginal title to the area of Morrison Lake. The EAO's conclusion of no significant adverse effects was not supported by the Lake Babine Nation, the Gitxsan Nation, and the Gitanyow Nation. The extent to which First Nations opposition to the project influenced the outcome is not clear. However, given the nature of the fish populations in question and the predicted long term changes to water quality, First Nations opposition represents a substantial risk to the province that should something go wrong, they would be faced not only with reclamation of the site, but with legal challenges by the First Nations.

On the side of environmental effects, MEM's comments highlight their concern with the Proponent's project design decisions regarding Potentially ARD Generating (PAG) rock waste. MEM was concerned that the project design was inconsistent with the joint MEM/MOE "Policy for Metal Leaching and Acid Rock Drainage at Minesites in British Columbia," and that project design options that would reduce environmental liabilities had not been explored. This concern acknowledged the Proponent's significant efforts to make design changes to reduce the significance of environmental effects, but indicated they did not go far enough.

The "in-perpetuity" nature of the environmental liabilities was another significant concern identified by both MOE/EPD and MEM. Collection and treatment of contaminated mine water would need to occur for 100+ years in order to avoid significant adverse effects on Morrison Lake, beyond the expected long term changes to baseline water quality.

While it was not clearly stated, the nature of the Proponent may also have been a factor in the agencies' concern regarding environmental liability. MEM's preliminary analysis of the reclamation, closure and environmental liabilities for the proposed project was in excess of $300 million. MEM indicated that given the risk to the province associated with a liability like this, the full costs of the liabilities would likely have to be covered by bonding requirements under the Mines Act. This would be a significant challenge for any proponent, let alone a company the size of Pacific Booker.

The Executive Director of the EAO recommended that the Minister not issue an EA Certificate. The Minister followed that recommendation in the Ministerial Decision Record of September 24, 2012. In a letter to the Proponent dated September 28, 2012, the Minister reiterated the additional factors for consideration identified by the Director, and concluded that despite the Proponent's participation in the EA process and willingness to make design proposals and commitments, the Minister remained of the view that an EA certificate should not be issued. The Minister did note that the decision does not prevent the Proponent from submitting another proposal based on a new project design in the future.

Conclusion

Although it was surprising and unusual for both the Executive Director and the Minister to reject the conclusions of the EAO assessment report, these decisions are a reminder that there is still discretion in the process. The Proponent spent a great deal of money over a period of almost ten years conducting environmental studies and redesigning their project description in efforts to meet the requirements of provincial regulatory agencies. Typically, the EA process results in the proponent agreeing to make some changes to project design in order to avoid or mitigate potential environmental effects, and commit to mitigation measures to address effects that cannot be avoided. However, this decision suggests that Proponents may increasingly see regulators requiring that environmental effects be minimized at the project design phase, rather than focusing on ways to mitigate effects associated with the Proponent's choice of an economically acceptable design option. Additionally, the strength and focus of the Ministries objections may mean that projects that include perpetual treatment as part of reclamation may find it difficult, if not impossible, to receive an EA certificate.

In light of this outcome, it may be prudent for Proponents to seriously consider whether there are any "show-stopping" environmental effects associated with their Projects, and ensure that they get the views of key stakeholders, including other Ministries and First Nations, before investing the significant time and resources necessary to reach the end of an EA process.

Footnotes

1 Pursuant to s. 17 of the BC Environmental Assessment Act SBC 2002, c. 43, the director must prepare the assessment report and may make recommendations. The "EAO" doesn't have any statutory role in this process. As a result, from a legislative point of view the Director's recommendations conflict with the Director's Assessment Report.  

2 These concerns are detailed in a January 31, 2012 letter from the EAO Project Assessment Manager to the Proponent.

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions