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Red Chris Mine: An environmental law victory can still be a loss for the environment

January 20, 2010

This morning the Supreme Court of Canada released its decision in MiningWatch Canada v. Canada.  The environmental community, including West Coast Environmental Law, has hailed the decision as a landmark ruling that gives the Canadian Environmental Assessment Act new teeth.  But, unfortunately, the victory was not complete:  the same decision gave the go-ahead to the Red Chris Mine – a huge copper and gold mine in Northern BC which was the subject of the case. 

At issue in the case was whether Fisheries and Oceans Canada should have conducted a “comprehensive study” of the environmental impacts of the proposed Red Chris Mine.  Existing regulations under the Canadian Environmental Assessment Act require a comprehensive study of any metal mine (other than gold) producing more than 3,000 tonnes of ore per day, or a gold mine producing more than 600 tonnes of ore per day.  The Red Chris mine, proposed to output approximately 30,000 tonnes of ore per day over a 25-year period, clearly qualified for a comprehensive study of environmental impacts.  However, Fisheries and Oceans Canada used a loop-hole – By redefining the “project” to exclude the actual mine, focus only on specific pieces of mine infrastructure – such as a proposed tailings pond, an explosives plant and other related work.  

By framing the project in terms of these other infrastructure, and ignoring the mine, Fisheries and Oceans Canada maintained that the project – as they defined it – did not appear on the list of projects that require a comprehensive study and that a less detailed “screening” assessment was enough.  As the Canadian Environmental Assessment Agency explained in December 2004:

[Fisheries and Oceans Canada has] determined a new proposed scope of project.  As a result, there will no longer be a requirement for a comprehensive study since the mill [and mine] will not be included in our scope of project. 

Under a comprehensive study, the public has a right to participate in the assessment.  By narrowing the definition of the project, the federal government purported to sidestep the comprehensive study requirement and instead subject the project to a screening level of assessment only - which also neatly excluded the public from participating in the assessment.  The Supreme Court of Canada, in a decision that we trust will help protect the environment in the future, closed the purported loop-hole by ruling that what the government had done was illegal: they cannot reduce the project scope from that proposed by the proponent.

West Coast Environmental Law has long recognized the importance of the Red Chris case.  After the Federal Court of Appeal ruled against MiningWatch Canada, we encouraged them to appeal and provided partial funding through our Environmental Dispute Resolution Fund to help them get the Supreme Court’s permission to bring the appeal.  Once the Supreme Court had granted MiningWatch permission to appeal, we obtained permission to intervene in the appeal to give our perspective on the importance of a strong environmental assessment process.  We worked with our co-interveners, the Canadian Environmental Law Association and four other environmental groups, to craft submissions on how this loop-hole undermined the purpose of the environmental assessment legislation. 

While a large part of our focus in working on this case was on improving and clarifying the application of environmental assessment law in Canada and advocating in favour of the public’s right to participate, we also had significant concerns about the potential environmental impacts posed by this specific project, the Red Chris mine.  We recognize the project’s economic benefits; it is expected to produce 1.85 billion pounds of copper and 1,187,000 ounces of gold over the mine’s 25 years life-span.  However, toxic tailings from the mine are to be discharged into a massive 2700 hectare tailings impoundment area created by building three dams and flooding a valley, and destroying the headwaters of a fishbearing stream known as Trail Creek.  This tailings pond is one example of a number of proposed mine projects that the federal government is considering allowing to convert fish bearing lakes or streams into mine tailings ponds – a practice that we find reprehensible and which allows mining companies to escape from the costs of cleaning up after themselves. 

But while we won on the law, MiningWatch Canada, Ecojustice and the interveners failed to protect Trail Creek and the surrounding area.  Whenever one challenges a government decision the Court has the ability to decide in one’s favour on the law, but still refuse to overturn the decision for reasons of “equity”.  The court noted that Red Chris Development had cooperated fully with the environmental assessment process, and found that MiningWatch had been primarily concerned in challenging the environmental assessment process rather than blocking this particular mine.  As such, the court granted a declaration that the process followed was illegal, but decided not to overturn the environmental assessment certificate in any case. 

West Coast Environmental Law does celebrate this important win.  We are confident that as long as the law remains as it is currently written and is not re-written by the government to meet other objectives, it will help to protect the environment in respect of the potential impacts of future mines, oil sands projects and other large, potentially environmentally destructive projects.  But at the same time, our hearts would be lighter if we’d also managed to ensure that the public – and the fish – had the benefit of a comprehensive environmental assessment of the Red Chris mine.