B.C. nixes mine project despite OK environmental assessment

B.C. nixes mine project despite OK environmental assessment
Christine Kowbel says the Pacific Brooker project may have another shot if the company alters its plan.
A mining company proposing to establish an open-pit copper and gold mine near a lake in northern British Columbia has been denied an environmental assessment certificate, but that shouldn’t signal concerns that mining is off limits in the area, say lawyers.

The B.C. government has rejected a request from Pacific Brooker Minerals Inc. for an EAC for its proposed Morrison Lake project near Smithers, B.C.

It’s thought to be only the second time the B.C. government has refused to issue an EAC where the environmental assessment office has concluded that the proposed project’s environmental impact could either be avoided or reduced to an insignificant level. The first time a certificate was refused was to the Ashcroft Ranch Landfill Project in 2011, despite the EAO’s 2005 conclusion that the proposed project’s environmental effects could be mitigated to an acceptable level.

However, mining lawyer Christine Kowbel, of Lawson Lundell LPP, says the Pacific Brooker project may have another shot if the company alters its plan.

“I think the reasons are project specific and each project is looked at on its own merits,” says Kowbel, whose firm represents a number of mining companies in B.C., the North, and Ontario. “It’s not to be taken as an indication of any kind of trend. They had some very specific reasons mainly related to environmental factors and needed more data on the behaviour of the lake.”

B.C. Environment Minister Terry Lake and Energy, Mines and Natural Gas Minister Rich Coleman refused to issue the certificate to Pacific Booker for its proposed Morrison Lake mine project, located 65 kilometres north of Smithers.

Pacific Booker had proposed to use truck and shovel equipment to extract about 30,000 tonnes of ore per day over 21 years. The proposal included a processing plant, mine facilities, sewage and waste water management facilities, explosives storage and mixing plant, fuel storage, overburden stockpile, waste rock storage, low-grade ore stockpile, tailings storage facility, water treatment plant, and sludge storage.

The ministers listed three main reasons for opposing the project:

• The potential to impact a genetically unique sockeye salmon population that contributes to the Skeena River sockeye.

• The potential for long-term liability for the province and risk to the environment were not acceptable.

• Insufficient data about the behaviour of the lake, and the potential diminished long-term water quality in Morrison Lake is not an acceptable risk.

The decision by Lake and Coleman is in accordance with the recommendation of the executive director of the environmental assessment office not to issue an EAC, but stands in contrast to the August 21, 2012 conclusion by the EAO reviewers that the proposed project was not likely to result in any significant adverse effects with the successful implementation of mitigation measures and conditions.

“What’s different about [the Ashcroft] case is the executive director and the assessment report both recommended the project go ahead and it was turned down by the ministers subsequently,” says Chris Tollefson, executive director of the environmental law centre at the University of Victoria Faculty of Law. “[In Morrison] you have a slightly different situation where the executive director takes a different view than the authors of the technical report.”

The case is also different in that there are aboriginal rights and titles in play and the proponent had an acrimonious relationship with one of the First Nations groups in the area.

“I think in the end a critical factor was there was First Nations opposition — there was moderate to strong constitutional claims that were going to be impacted,” says Tollefson.

The Skeena sockeye fishery is considered one of the most important salmon fisheries in the province.

“There is an irreversibility recognized in the report — if the fishery was adversely affected it might not come back,” says Tollefson.

B.C.’s environmental assessment process involves a review that provides for First Nations, government agencies, and the public to provide input on the potential for environmental, economic, social, heritage, and health effects of a proposed project.

“The good news in B.C. is there have been a few certificates approved by the environmental assessment office and the federal government so by no means is the message that you can’t mine in B.C. There are still projects that have proceeded through the process,” says Kowbel.

While the government has been under pressure to indicate its stand on the proposed Enbridge Northern Gateway pipeline project between Alberta and B.C., this latest decision is not believed to be linked to pressure around the Enbridge project.

“I don’t think the process is anymore rigorous depending on the region and I don’t think that issue [Northern Gateway] came up in the decision documents,” says Kowbel.

The role of the environmental assessment office is to conduct an objective, technical review of the project and issue recommendations, but the actual decision-making under the act falls to two more levels — the executive director of the EAO and the minister.

“What happened in this case is the EAO said that in their objective review they think with proper mitigation measures the project could go ahead, but then the executive director said ‘let’s look at the long-term risk of this,’ and then made a recommendation not to issue a certificate to the minister,” says Toby Kruger, an associate with Lawson Lundell.

Kruger says there are two lessons mining companies can take away from the decision of the B.C. ministers.

“Firstly, it highlights the importance of listening to all the issues along the way during the review process and really responding to those in a constructive way,” says Kruger.

“The second lesson would be we see some projects restarting because they have been redesigned. So there may be other changes that can be made to the project that may allow it to proceed in some different form. It’s not necessarily the end of the road.”

Different opinions from different levels of government are also a factor, says Kowbel, who points to the 2010 New Prosperity gold and copper mine project put forward by Taseko Mines Ltd. near Williams Lake, B.C., which was approved by the B.C. government but then rejected after a federal government environmental review.

“We still don’t know what the federal government thinks of the Pacific Brooker project so that is still pending,” says Kowbel. “We may find the opposite happens — the federal decision may come out for the project and the net result is the project can’t proceed in this form. With Prosperity they’ve come back and the plan they’re putting forward doesn’t rely on Fish Lake quite the same way. They’re bringing it back to the regulator and trying to show it will be more acceptable.”

However Tollefson says there will be far fewer federal assessments in the future thanks to the federal omnibus budget Bill C-38, which repealed and replaced the former Canadian Environmental Assessment Act with one that reduces the number and scope of federal assessments. As a result provinces will in many cases be left to do the assessments on their own.

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