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Lessons from the Prosperity Mine Environmental Assessment

July 5, 2010

On Friday (July 2nd) the Canadian Environmental Assessment Agency released the assessment report prepared in respect of the Prosperity Copper and Gold Mine proposed by the mining company, Taseko (Executive Summary here).  This is the controversial mine which would destroy Fish Lake, near Williams Lake, despite strong opposition from the Tsilhqot’in National Government and others.  There is a huge contrast between the quality and approach of the environmental assessments conducted in respect of the Prosperity Mine by the federal and provincial governments, raising questions about proposals for a single, national environmental assessment process. 

Prosperity.jpgThe Federal Assessment

The report, prepared by a panel appointed by the federal government after extensive public hearings and research, concludes that the proposed mine, if it proceeds, will cause significant adverse environmental effects:

The Panel concludes that the Project would result in significant adverse environmental effects on fish and fish habitat, on navigation, on the current use of lands and resources for traditional purposes by First Nations and on cultural heritage, and on certain potential or established Aboriginal rights or title. The Panel also concludes that the Project, in combination with past, present and reasonably foreseeable future projects would result in a significant adverse cumulative effect on grizzly bears in the South Chilcotin region and on fish and fish habitat.

West Coast Environmental Law is proud to have supported the Tsilq’ot’in National Government and the Center for Science and Public Participation in their participation in the environmental assessment process, through grants from our Environmental Dispute Resolution Fund which helped pay for the lawyers and science experts appearing on behalf of the Tsilq’ot’in National Government. 

In reality, the Panel’s report is just a recommendation, and it’s up to the federal government to make the political decision to allow the mine to proceed or not. There’s no doubt, however, that the report, which clearly determines that many of the environmental impacts of the proposed mine cannot be mitigated, is a serious blow to the mine’s claims of sustainability and environmental responsibility.  In 2007 the report of another panel, critical of the proposed Kemess North Project, caused the federal and provincial governments to quickly reject that project outright

But while we’ll have to wait and see what the federal government will do with the Prosperity Mine proposal, we don’t need to wait to hear what the province will do.  That’s because the provincial environmental assessment report was completed last December (a good 6 months before the federal report).  The Prosperity Mine assessments represent an important case study about the differences between the federal and provincial assessment procedures and raise significant questions about the benefits and challenges of working towards a single, combined assessment process, as has been proposed by both levels of government. 

The Provincial Report

The provincial report found that there was just one significant adverse environmental impact (the loss of Fish Lake) and the Environmental Assessment Office (EAO) recommended that the project be approved, for a number of reasons, including, in addition to the economic and employment benefits of the project:

  • There is only one significant adverse effect and it is limited to a discrete location. …
  • The Proponent’s Fish Habitat Compensation Program would go a significant way to addressing the impacts of the loss of Fish Lake.
  • Costs and benefits would be shared among present and future generations in a reasonably equitable manner.  Most direct benefits would accrue to the present generation, which would also experience the loss of Fish Lake with an approximate seven year period during which Prosperity Lake would not yet be established.  Future generations would benefit generally from the longer term economic and community development the project would provide in the region, and though they will not have the benefit of Fish Lake, Prosperity Lake [a man-made lake intended to replace Fish Lake] would have been established by that time.  

As a result, on January 14, 2010 Ministers Barry Penner (Environment) and Blair Lekstrom (Energy and Mines) issued an environmental assessment certificate authorizing (at least at the provincial level) the Prosperity Mine to move forward. 

Comparison of the two processes

It’s worth noting some of the obvious differences between the federal and provincial environmental assessments:

  • The conclusions reached were quite different, with the provincial assessment recognizing only one “significant adverse effect” and recommended approving the project, while the federal assessment report found several significant impacts. 
  • The Federal Process was carried out by a “review panel” – a panel of experts that was arms-length from the federal government.  The BC process was overseen by the province’s Environmental Assessment Office and a “working group” comprised primarily of provincial government employees who also have other job responsibilities. 
  • The Provincial environmental assessment process was legally required, notwithstanding the complexity and high level of public concern, to complete its assessment of the project in 180 days (about 6 months) from when the application was formally submitted in March 2009 (not counting time when the province was waiting for Taseko to respond to information requests).  As a result, the provincial process did not have the benefit of information assembled by federal government agencies, the Tsilhqot’in National Government or other parties later in the federal assessment process. 
  • The federal assessment Panel report outlines that provincial staff had a number of unanswered concerns late into the process.  These concerns do not appear in the provincial assessment report (as they were not uncovered at the time the provincial assessment was completed), and if the federal Panel is correct, then it appears that the legislated deadline of 180 days may have forced the provincial environmental assessment office to state the environmental impacts with more certainty than the evidence supported.  
  • There was funding available from the Canadian Environmental Assessment Agency to allow the Tsilhqot’in National Government, environmental groups and other affected communities pay for experts, lawyers and otherwise participate in the process.  No such funding existed in the provincial assessment.
  • The federal process held extensive public hearings, sitting for 30 days in 10 different communities, at which it received 320 presentations from the proponent (Taseko), members of the public, and affected First Nations.  By contrast, the provincial EAO held 3 two-hour “open houses” in 3 communities, described as “including presentations with an opportunity to ask questions.”  The provincial process invited the public to express any concerns in writing over a two-month period. 
  • The federal assessment considered the cumulative impacts of the mine, while the province did not consider the impacts of the proposed mine to be certain enough to warrant an assessment of the cumulative impacts. 

Comments on a single process

Last February, West Coast criticized the province’s desire to have the federal government off-load its environmental assessment process in favour of a single (province-led) environmental assessment process.  Since then the Western Premiers have called for a simplified single assessment process.  

Interestingly, in this case the blame for the two separate processes lies not with the federal government (and EA) process, but with the province and Taseko.  The province and federal governments could have worked together to coordinate the environmental assessments of the Prosperity Mine.  Indeed, there was extensive negotiations between the province, the federal government and the Tsilqhot’in National Government about the terms of a single “joint-panel” process.  It was the province that walked away from these negotiations. 

While the federal Panel report mentions that Taseko and the Tsilhqot’in National Government both agree that it was “British Columbia [that] … unilaterally decided to conduct a separate process leaving the federal government to pursue its own panel review process…”, the Tsilhqot’in National Government has suggested that BC chose to turn its back on a joint process at Taseko’s request:   

After months of pushing for a joint review, [Taseko] advised CEAA [Canadian Environmental Assessment Agency] and BCEAO [BC Environmental Assessment Office] that [it] would not take [the] Project before a joint panel, in part because it “puts the future of a billion dollar mine in the hands of 3 unelected, unaccountable individuals.” … A mere four days later, the Province followed suit.  BCEAO advised that a joint review panel was no longer an option, unless the panel was barred from making a recommendation as to whether or not the Project should proceed.  Over our Nation’s objections, British Columbia then terminated the joint review panel negotiations and ordered a separate, BCEAO-led review process.

Taseko’s decision to reject a joint process seems to have been the result of the Kemess North joint panel decision, which, as discussed above, recommended against the approval of another major mine project. It is disturbing that the province, with its stated commitment to a single process, would abandon the possibility of a coordinated assessment primarily to accommodate the mine proponent. 

While the differences between the federal and provincial government Prosperity Mine assessments demonstrate the importance of a strong environmental assessment process, as well as the limitations of BC’s Environmental Assessment Act, many players in the Prosperity Mine assessment expressed frustration with the disconnect between the two processes, including:

  • The federal panel, which noted that they ceased to have access to provincial government experts after the provincial process finished, and that the provincial environmental assessment did not have access to the final analysis conducted by federal government experts. 
  • The Tsilhqot’in National Government called on the province to continue the assessment process beyond the imposed 180-day limit and to wait until after the public hearings, so that the provincial assessment could benefit from the information obtained there.  The Tsilhqot’in National Government also chose to focus its resources on the federal EA process rather than attempt to participate in two separate processes. 
  • Members of the public and First Nations criticized the province for its failure to participate in the federal EA public hearings and for going ahead with provincial approvals before the federal process was complete;
  • Industry and business associations expressed frustration that the two levels of government had been unable to agree on a single process and noted the resulting inefficiencies. 

The Prosperity Mine assessments represent an interesting case study.  On the one hand, it demonstrates the inefficiencies of two entirely separate, uncoordinated environmental assessment processes.  On the other hand, it demonstrates that an environmental assessment process plagued by artificial time-lines and a lack of public transparency does little to guarantee that the correct environmental protection is reached. 

Clearly Canada does not need to rush blindly towards a single environmental assessment process that fails to protect the environment.  As we wrote in February, West Coast would support a harmonized process as long as it is designed to:

  • Reject projects that fail to meet environmental criteria or which negatively impact human health;
  • Include opportunities for public involvement, including participant funding where appropriate;
  • Require that project proponents provide enough detail for the government and the public to properly evaluate the project;
  • Consider the cumulative impacts of projects across the landscape;
  • Provide for a clear, transparent process, which, while efficient, does not impose artificial deadlines;
  • Eliminate political interference in assessments; and
  • Respect the constitutional power and responsibility of both the federal and provincial governments to protect the environment.

In the case of the Prosperity Mine environmental assessment, the federal process had most or all of these features, while the provincial process has achieved none of them.   In the past few years there have been ever increasing calls for a single process, led by the provinces.  But unless we can be confident that a harmonized process will be a strong process that actually protects the environment, we cannot support it. 

By Andrew Gage