It appears that AVT covered all bases
In the matter of the
ENVIRONMENTAL ASSESSMENT ACT
S.B.C. 2002, c. 43
(Act)
and
in the matter of an
APPLICATION
for an
Environmental Assessment Certificate
(Application)
by
Avanti Kitsault Mine Ltd.
(Proponent)
for the
Kitsault Mine Project
(Proposed Project)
March 18, 2013
Reasons for Ministers’ Decision
In accordance with the provisions of section 17(3) of the Environmental Assessment Act, the Minister of Environment and the Minister of Energy, Mines and Natural Gas make a decision contained in this submission, for the reasons indicated, in connection with the application by Avanti Kitsault Mine Ltd. for an Environmental Assessment Certificate for the proposed Kitsault Mine Project.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 1 of 9
1. PURPOSE OF DOCUMENT
The purpose of this document is to provide a record of the factors that we have considered, and the rationale that we, the Minister of Environment (the Minister) and the Minister of Energy, Mines and Natural Gas (the responsible Minister), have employed in making our decision under the Environmental Assessment Act (the Act) on the Application for an Environmental Assessment (EA) Certificate by Avanti Kitsault Mine Ltd. (Proponent) for the proposed Kitsault Mine Project (proposed Project).
2. BACKGROUND
Project Description
The Proponent is proposing to redevelop a molybdenum mine which operated between 1968 and 1972 and again between 1981 and 1982. The proposed Project is an open pit molybdenum mine with an ore extraction rate of between 40,000 and 50,000 tonnes per day for up to 16 years of mine operations. The proposed Project is located on Crown land 140 kilometres (km) north of Prince Rupert, at the head of Alice Arm, British Columbia. A full description of the proposed Project is provided in the Assessment Report.
EA Process
Based on the proposed project description and planned redevelopment of a mine site with an existing Mines Act permit, the proposed Project did not meet the criteria under the Reviewable Projects Regulation and therefore did not require an EA under section 5 of the Act.
In March 2010, the Proponent requested that the Executive Director designate the proposed Project as reviewable under section 7(3) of the Act. In their request letter, the Proponent said they “... believe that the BC EA review process will deliver a Project that meets the social, economic and environmental goals of the province and respects the provisions of the Nisga’a Final Agreement.” The proposed Project was accepted by Environmental Assessment Office (EAO) and designated by the Executive Director as a reviewable project under Section 7(3) of the Act in April 2010. The EA process, conducted by EAO for the proposed Project, is described in the Assessment Report.
The proposed Project also required a federal EA under the former Canadian Environmental Assessment Act (CEAA) on the basis that a federal authority is required to exercise certain powers or perform certain duties or functions for the purposes of enabling the proposed Project to be carried out. Canada has, however, recently determined that an amendment to Schedule 2 of the Metal Mining Effluent Regulations, SOR/2002-222 is not required in respect of the tailings management facility for the proposed Project.
EAO and the CEA Agency coordinated the provincial and federal EA processes. The federal EA was a Comprehensive Study under CEAA. The CEA Agency’s draft Comprehensive Study Report reaches the same conclusions as the EAO’s Assessment Report.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 2 of 9
Conclusions of EAO
EAO completed its review of the proponent’s Application, and on March 1, 2013, referred the Application and the EAO Assessment Report to Ministers for decision. The Executive Director also provided his recommendation, with reasons of whether an EA Certificate should be issued.
During the EA process, EAO considered potential adverse environmental, social, economic, heritage, and health effects of the proposed Project. EAO recommended a number of conditions be added to the EA Certificate to further manage or mitigate potential adverse effects.
EAO’s assessment concluded there were potential adverse residual effects associated with:
? Surface water and sediment quality;
? Surface water quantity;
? Freshwater aquatic resources;
? Marine aquatic resources;
? Wildlife and wildlife habitat, ecosystems and wetlands; and,
? The transportation corridor for the proposed Project.
As discussed in EAO’s Assessment Report and the Recommendations of the Executive Director, none of the adverse residual effects were determined to be significant after considering the mitigation measures and conditions that would become binding conditions of the EA Certificate.
EAO’s significance analysis evaluated the magnitude, probability, frequency and duration, geographic extent, reversibility and context of each potential residual effect, including the assessment of potential cumulative effects. EAO concluded the proposed Project is not likely to result in any significant adverse effects.
The majority of attention during Application Review was focussed on potential effects to surface water quality, sediment quality, freshwater and marine aquatic resources related to the mine site; and potential effects to wildlife along the transportation corridor. EAO noted the extraordinary nature of this EA process given the requirements of the Nisga’a Final Agreement.
Provincial permitting agencies including the Ministry of Environment; Ministry of Energy, Mines and Natural Gas; and Ministry of Forests, Lands and Natural Resource Operations, as well as federal agencies, First Nations and Nisga’a Nation, provided valuable input to the technical working group during Application Review including comments on the Assessment Report conclusions and recommendations for conditions in the EA Certificate.
The basis for EAO’s conclusions that potential adverse residual effects would be adequately mitigated, either by proposed EA Certificate conditions or subsequent provincial and federal authorizations and permitting requirements for the proposed Project, is provided in the Assessment Report.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 3 of 9
Transportation Corridor
The scope of the EA included the assessment of potential adverse effects along the transportation corridor for the proposed Project. The transportation corridor was scoped into the EA due to potential adverse effects to wildlife (particularly moose) within the Nass Wildlife Area and other concerns raised by First Nations including potential impacts on aboriginal rights to hunt, Nisga’a Nations right to hunt as defined under the Nisga’a Final Agreement (NFA), accidental spill of hazardous materials, accidents/collisions and safety risks related to transportation and increased traffic.
Public Consultation
Separate public comment periods of 30 days each were held during the pre-Application and Application Review stages of the proposed Project’s EA. During each stage of the EA, one open house was held in Terrace, BC. The majority of public comments were supportive of the proposed Project and focused on jobs and economic opportunities. Public comments provided during the Application Review stage, and the Proponent’s responses, were provided to ministers for consideration in making our decision.
Nisga’a Nation and the NFA
The proposed Project is located within the Nass Area, as defined in the NFA, and therefore Chapter 10 of the NFA applies to the EA of the proposed Project. EAO completed two assessments to address specific requirements under sections 8(e) and 8(f), Chapter 10 of the NFA, which are included in the Assessment Report. Nisga’a Nation were very concerned about potential impacts to freshwater and marine water quality and aquatic life, including benthic macro-invertebrates, fish and shellfish, as well as other ecosystem and human health values. Nisga’a Nation also raised concerns regarding the historic impacts on the marine environment resulting from previous disposal of mine tailings to Alice Arm during Kitsault mine operations from 1981-1982, and previous disposal of tailings in Lime Creek from 1968-1972.
EAO is satisfied that the Provincial Crown has met its obligations under the NFA, including adequately assessing whether the proposed Project can be reasonably expected to have adverse environmental effects on residents of Nisga’a Lands, Nisga’a Lands, or Nisga’a interests set out in the NFA and as appropriate, making recommendations to prevent or mitigate those effects, as well as adequately assessing the effects of the proposed Project on the existing and future economic, social and cultural well-being of Nisga’a citizens who may be affected by the proposed Project.
Since the Project was referred for a decision, the Nisga’a have served notice that they are invoking the first stage of Dispute Resolution under the NFA in regard to the assessment of the proposed Project.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 4 of 9
First Nations
The mine site of the proposed Project is in the asserted territory claimed by Metlakatla First Nation. The transportation corridor for the proposed Project is in the asserted territory of the Kitselas First Nation, Kitsumkalum First Nation, Gitxsan Nation and Gitanyow Nation. EAO consulted with all of these First Nations and concluded that the impact of the proposed Project on the asserted aboriginal rights or title of these First Nations would be adequately minimized or avoided by measures identified during the EA process and that would become binding as part of the EA Certificate conditions. EAO is satisfied that the Crown’s duty to consult and accommodate these First Nations has been fulfilled in relation to the issuance of an EA Certificate for the proposed Project.
Since the Project was referred for a decision, the Gitnayow First Nation has delivered additional correspondence (March 15, via email) in regard to the assessment of the proposed Project.
EAO’s Executive Director has recommended that an EA Certificate be issued to the Proponent for the proposed Project, with conditions respecting the design of the Project and mitigation of its effects.
3. DISCUSSION OF CONSIDERATIONS
Information Sources Considered
We have reviewed and considered the referral package, produced by EAO, and received on March 1, 2013, including the:
? Assessment Report;
? Recommendations of the Executive Director; and,
? The EA Certificate, including Schedules A and B.
In addition, we have considered letters to Ministers from Gitanyow Nation dated
February 20, 2013 and March 15, 2013, a letter to Minister Lake from Metlakatla First Nation dated February 27, 2013, and a submission addressed to EAO from Nisga’a Lisims Government dated February 20, 2013.
We also considered the fact that the Nisga’a have initiated the Dispute Resolution process under the NFA and the materials provided therein.
We note that, as described in the Assessment Report, EAO concluded the proposed Project is not likely to result in any significant adverse effects. We feel that this project, if it proceeds based on the conditions as specified, will improve water quality in the Lime Creek watershed and related receiving environments.
While we were guided by the materials and information above as a whole, the following matters were given particular attention in our deliberations:
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 5 of 9
Surface Water and Sediment Quality
As with many proposed mine projects a key concern was the potential impact to surface water quality of the water bodies within and downstream of the major mine infrastructure of the proposed Project, including the open pit, Tailings Management Facility, low grade ore stockpile, waste rock storage facilities and other mine facilities. The main issue was the long term management of the water discharged from the Tailings Management Facility to Lime Creek. Potential adverse effects include changes in surface water quality and sediment quality in the receiving water bodies due to sedimentation, increased concentration of metals and other parameters of concern, changes in runoff and groundwater, and seepage influenced by metal leaching and acid rock drainage.
During the Application Review, and in response to concerns raised by the technical working group, including First Nations and Nisga’a Nation, the Proponent made a number of additional commitments to mitigate impacts to surface water and sediment quality including water management and water treatment. We note that based on the additional mitigation measures proposed and revised water quality modelling, water quality in the receiving environment is predicted to improve from current water quality conditions and would meet BC Water Quality Guidelines or site-specific water quality objectives for the protection of freshwater aquatic life during all phases of the proposed Project.
Based on successful implementation of the proposed mitigation measures identified in the Certified Project Description and conditions of the EA Certificate, we agree with EAO’s conclusion that the proposed Project is not likely to result in significant adverse effects to surface water and sediment quality.
Surface Water Quantity
The Proponent’s Application noted that the proposed Project has the potential, with its water diversion, obstruction, and withdrawal activities, to cause changes in water flow and quantity within the three identified watersheds. The proposed mine facilities with the largest potential for affecting downstream flows are the Tailings Management Facility, waste rock management facility, Kitsault Pit, south diversion channel and the Patsy Creek diversion.
The Application stated that surface water flows and quantities affected by the proposed Project footprint would be managed under the proposed Water Management Plan, which includes management of all water in contact with a mining activity (mine contact water) including surface runoff and seepage. During the Application Review, and in response to the concerns raised by the working group, including First Nations and Nisga’a Nation, the Proponent made a number of new commitments, including water management to reduce potential impacts to surface hydrology in the downstream receiving environment in Lime Creek and Clary Creek watersheds.
In considering the Proponent’s commitments to implement mitigation measures as described in the Certified Project Description and the conditions of the EA Certificate, we agree with EAO’s conclusion that the proposed Project is not likely to result in significant adverse effects on surface water quantity.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 6 of 9
Freshwater Aquatic Resources
Aquatic habitat within the mine footprint within the Lime Creek watershed is non-fish bearing, but does provide habitat for benthic macro-invertebrates (BMI) and other ecosystem values. The fish bearing section in the freshwater receiving environment is limited to the lower 1.8 km section of Lime Creek. Fish species utilizing the lower 1.8 km section of Lime Creek include Dolly Varden char and coho salmon.
The proposed Project Tailings Management Facility would result in the removal of Patsy Lake (a very small, non-fish bearing, lake) and the diversion of Patsy Creek (a non-fish bearing tributary) within the upper Lime Creek watershed. The mine site and proposed discharge of treated mine effluent from the Tailings Management Facility is located approximately 6 km upstream from where Lime Creek flows into the marine environment in Alice Arm.
The mine footprint also overlaps within the Clary Creek and Lake 901watersheds. A Fish Habitat Compensation Plan, as required by Fisheries and Oceans Canada (DFO) for Authorization under Section 35(2) of the Fisheries Act for harmful alteration, disruption or destruction of fish habitat, would be required for the proposed Project in order to ensure no net loss in the productive capacity of fish habitat.
In considering the Proponent’s commitments, including an Aquatic Effects Monitoring Program, as described in the Certified Project Description and the multiple conditions related to water quality that are included in the EA certificate, we agree with EAO’s conclusion that the proposed Project is not likely to result in significant adverse residual effects on freshwater aquatic resources.
Marine Aquatic Resources
The Proponent’s marine aquatic resources assessment addresses the potential effects of the proposed Project on both marine water quality and marine aquatic life, linked primarily to surface water drainage from the mine site draining into Alice Arm. Marine water quality can affect marine life and the health of the marine ecosystem.
EAO considered the valuable marine aquatic resources in Alice Arm and the importance of these resources to the Nisga’a Nation and Metlakatla First Nation and, in particular, the potential for human health impacts due to the bio-accumulation of metals potentially present in fish and shellfish tissue. EAO recognized the impact of past mining operations on Alice Arm which may have contributed to these issues, but is also aware that the proposed Project, should it proceed, would likely result in an improvement over current water quality in Lime Creek and in Alice Arm, reducing the potential for adverse effects to marine aquatic resources.
EAO also considered that the Lime Creek watershed contributes only a very small portion of the total fresh water input into Alice Arm (5%) and have considered the significant dilution of fresh water in the marine environment. EAO has also considered the Proponent’s proposed Marine Environment Monitoring Program and is satisfied that the program would be robust, involve the Nisga’a Nation in its development during permitting, and would detect any changes in the
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 7 of 9
marine environment and inform adaptive environmental management to mitigate potential adverse effects.
In considering the Proponent’s commitments to implement mitigation measures described in the Certified Project Description and the Table of Conditions, we agree with EAO’s conclusion that the proposed Project is not likely to result in significant adverse residual effects on marine aquatic resources.
Transportation Corridor
In the Assessment Report, EAO noted the key transportation related effects included:
? Wildlife impacts, in particular potential impacts to the Nass moose population from increased truck traffic, vehicle collisions and hunting access during winter along the Nass Forest Service Road (0-31 km, known as the ‘Cranberry Connector’).
? Impacts to aquatic habitats due to accidental spill of hazardous materials; and,
? Accidents/collisions and safety risks related to transportation and increased traffic from the mine site to Hwy 16 via Hwy 113 and Hwy 37.
We understand that the scoping decision regarding the transportation corridor was made in response to the deep concerns expressed by affected First Nations and the Nisga’a, especially regarding the Cranberry Connector. We acknowledge the importance of moose to First Nations and Nisga’a and the concerns raised regarding potential impacts to moose. The roads along the transportation corridor already exist, and although cumulative effects were considered, the EA does not seek to address any outstanding issues in relation to previous decisions related to the road. In addition we are advised that the Ministry of Transportation has initiated a “highway 37” working group to examine cumulative impacts of resource development on roads in that area of the Province. We note that the Proponent has agreed to several conditions to mitigate the concerns of First Nations and the Nisga’a including spill response measures, a Wildlife Corridor Management Plan and $100,000 per year to fund moose conservation programs. We agree with EAO’s conclusion that the proposed Project is not likely to result in significant adverse effects along the transportation corridor.
Public Consultation
We have reviewed the public consultation undertaken by EAO and the Proponent during the Environmental Assessment and conclude that public consultation activities were adequate and that the public comment related to the proposed Project were adequately addressed. We understand the concerns raised by the public and note the support voiced during the public consultation periods. It is our view that all relevant project-related concerns were adequately considered and addressed by EAO during the EA process.
First Nation Consultation
We have reviewed the First Nations consultation report, as presented in the Assessment Report, the letters to Ministers from Gitanyow Nation dated February 20, 2013 and March 15, 2013, and
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 8 of 9
the letter to Minister Lake from Metlakatla First Nation dated February 27, 2013, and conclude that due to the nature of the potential impacts of the proposed Project, the Crown has met its duty to consult and appropriately accommodate the potential impacts to First Nations’ asserted aboriginal rights and title.
Nisga’a Nation and the NFA
We have reviewed the EAO’s report on the assessment of paragraph 8(e) and 8 (f), Chapter 10 of the NFA provided in section D of the Assessment Report and the submission addressed to EAO from Nisga’a Lisims Government dated February 20, 2013, and conclude that the Province has met its obligations of the NFA.
We have considered the information provided in the Dispute Resolution process that the Nisga’a have initiated with regards to a disagreement concerning the environmental assessment of this proposed Project and determined that the concerns that Nisga’a have recently raised with regards to the disagreement, are concerns that Nisga’a have previously raised and are already captured in the referral materials provided by EAO. These concerns include disagreement regarding the adequacy of the assessments required under the NFA.
We have considered the requirements under the NFA for the parties to attempt to resolve the disagreement through proceeding through specific stages, starting with collaborative negotiations. This process requires parties to make serious attempts to resolve the disagreement through identifying underlying interests, isolating points of disagreements and disagreements, exploring alternative solutions, considering compromises or accommodations, and taking any other measures that will assist in resolution of the disagreement (paragraph 9, Appendix M-1).
We have considered whether the Province’s ability to resolve the disagreement would be undermined by proceeding with making a decision regarding the EA Certificate. We acknowledge that Nisga’a and the Province disagree regarding the interpretation of the applicable provisions under Chapter 10 of the NFA. We also take particular note of the opportunities that Nisga’a will have to further engage regarding the technical aspects of the proposed Project, engagement that is required in relation to the subsequent permitting processes and required processes in accordance with conditions of an EA Certificate. We are satisfied that the Province can engage, in good faith, in the dispute resolution stages, and meaningfully address any outstanding issues through the subsequent process required for permitting and in accordance with conditions of an EA Certificate.
Reasons for Ministers’ Decision – proposed Kitsault Mine Project page 9 of 9
4. CONCLUSION AND DECISION
We agree with EAO’s conclusions as set out and described in the Assessment Report and are satisfied that EAO has conducted a fair, transparent, inclusive, comprehensive and efficient EA of the proposed Project.
For the reasons provided above, and having regard to our responsibilities under section 17(3) of the Act, we have decided to issue an EA Certificate with conditions as noted in Schedule B.
_______________________________ ______________________________
Honourable Terry Lake Honourable Rich Coleman
Minister of Environment Minister of Energy, Mines and Natural Gas
Signed: March 18, 2013 Signed: March 18, 2013