In January, the Supreme Court of Canada ruled that the Canadian Environmental Assessment Agency (CEAA) is failing in its job to assess potential environmental impacts from resource development projects. Northern BC’s Red Chris mine, it determined, had undergone a sub-par assessment that only examined parts of the project in lieu of a comprehensive study that would have required community consultation.

The CEAA received a slap on the wrist and an order to pull up its socks, but the Red Chris mine was allowed to proceed as planned.
Everyone involved celebrated the decision as a victory.

Imperial Metals noted in a news release that the ruling does not affect the project’s progress, adding that the process used avoided “unnecessary and costly duplication” between federal and provincial environmental review processes.

On its website, the Association for Mineral Exploration of British Columbia, joined by the Mining Association of British Columbia, welcomed the ruling and credited it, somewhat ironically, with having addressed the country’s environmental challenges “with efficiency at every turn.”

Meanwhile, former Ecojustice staff lawyer Lara Tessaro, who fought the case for Ecojustice and MiningWatch Canada, called the decision “a complete victory on the law.”

“This was intended to resolve a broadly legal federal practice that has been longstanding for a decade across the country. It happened to focus on the Red Chris mine, but going forward this decision is going to apply to every major industrial project in Canada. With that result, we are thrilled,” Tessaro said following the decision.

With the ruling written in the law books and the Red Chris project allowed to proceed, what remains to be seen is whether there will be any long-term impacts to resource-rich northern BC or new directions for environmental assessments ongoing in the North, which account for nearly half the province’s total EAs.

Finding loopholes
Located just south of Iskut and about 400 kilometres north of Highway 16, the site for Imperial Metals’ Red Chris mine lies within the Tahltan First Nation’s traditional territory, in close proximity to the hotly disputed Sacred Headwaters region. The open-pit mine is proposed for Todagin Mountain’s north slopes, directly opposite Todagin South Slope Provincial Park, which provides critical lambing habitat for the area’s rare stone sheep. The project would turn nearby Black Lake into a toxic dumpsite and could impact water quality in the Klappan and Iskut rivers.

According to the CEAA guidelines, if any component of a resource development project falls under the comprehensive study requirements, a complete project assessment—including community consultation—must be undertaken. However, the CEAA redefined the Red Chris project to include only certain aspects, such as a proposed tailings pond and explosives plant. The actual mine site was omitted from the assessment.

The Supreme Court ruled the Canadian government’s piecemeal approach to the Red Chris project, which eliminated the need for community consultation, was unlawful. The decision states that, “the responsible authorities erred in failing to use the project as proposed by Red Chris Development Company Ltd. to determine…if a federal environmental assessment was to be conducted, whether it was to proceed by way of comprehensive study if the project was listed in the Comprehensive Study List Regulations and, if not, by way of screening.”

Northern implications
In February, the Ministry of Environment listed 74 resource development projects currently undergoing environmental assessment, with most classed as mining or energy and the vast majority in the pre-application stage, while some were currently under review. Of those, 32 projects were proposed for the province’s northern half. All but two waste-disposal projects were classified as mining and energy. Many are wind energy projects, primarily in the Tumbler Ridge area.

Out of the 32 projects currently in the EA stage in northern BC, Ecojustice recently identified two that would be affected by the recent Supreme Court decision. According to Ecojustice, the decision ensures that the Kutcho Creek copper-zinc-silver-gold mine near Dease Lake, and the Kerr-Sulphurets-Mitchell copper-gold mine at Stewart will be assessed comprehensively.

Ecojustice also earmarked a third project, the Ruby Creek molybdenum mine near Atlin, which completed its environmental assessment last year, as being completed unlawfully at a screening level. This makes any federal permits issued null and void, the not-for-profit environmental law advocacy group says, and the mine should be required to renew its environmental assessment.

When asked about whether Ruby Creek would need to re-do its assessment, Lucille Jamault, senior communications advisor with the CEAA, replied only that, “The final EA decision for the Ruby Creek molybdenum mine project (as a screening) was made in 2009.”

She further noted that Kutcho Creek and Kerr-Sulphurets-Mitchell mines are currently undergoing a comprehensive study, but couldn’t comment on how the Supreme Court decision might affect their progress.

The CEAA was unable to answer detailed questions about which—if any—projects across Canada would be affected by the recent Red Chris decision, saying only that “projects affected by the Red Chris decision are currently being reviewed and decisions are being made.” In an online fact sheet, the agency says it will revise where an EA’s scope doesn’t match the project, but no timeline was given on when those decisions might be made.

“Decisions on which projects will need a different type of assessment or a change to the scope of the project will be communicated as soon as they have been made. Responsible authorities will be implementing this approach and decisions regarding individual projects will be communicated as soon as possible,” Jamault says, echoing the agency’s website information.

Inquiries to the parent companies for Ruby Creek, Kutcho Creek and Kerr-Sulphurets-Mitchell mines about possible changes to their environmental assessments were not answered.

The bottom line
Jamie Kneen is the communications and outreach coordinator for MiningWatch Canada, an environmental and social justice advocacy group keeping tabs on mining industry practices. He says that while the Supreme Court decision isn’t retroactive, a completed environmental assessment can stand if it was done properly. Otherwise, it might need to be redone.

“The Environmental Assessment Agency and the Department of Justice lawyers are busy reviewing every assessment that’s been initiated to make sure that they’re complying with the law. Of course, there’s still a role for environmental groups and First Nations and environmental law organizations like Ecojustice to monitor that and remind them if they’re not following through properly.”

The bottom line, Kneen adds, is that the ruling doesn’t go beyond what was in place before—it just reinforced the existing law. By stepping aside, the federal government has streamlined the process for the province.

“Ideally, as the Supreme Court pointed out, this is supposed to be coordinated with the province,” Kneen says. “The industry and the mainstream press have been complaining loudly about duplication and the extra effort that mining companies have to go through to fulfill all these requirements. The fact of the matter is it’s supposed to be coordinated. There’s supposed to be one, clear process and what the feds have been trying to do, essentially, is just abandon their end of things rather than go through the effort of negotiating a joint process with the province.”

Despite criticism from some environmental groups about the Supreme Court’s decision to allow Red Chris to proceed, the open-pit mine isn’t yet in the clear. Imperial Metals still needs federal approval to turn Black Lake into a tailings pond, something environmental groups and mining watchdogs will surely oppose.
If the recent court ruling has any weight it will, however, see greater public consultation on large-scale developments, says Ecojustice, potentially affecting developments like the tar-sands.