Vol. 23 No. 3
When is a Lake not a Lake: Getting to the Bottom of the Metal Mining Effluent Regulations
By Dean Watt
Environmental Law Centre
Earlier this summer, many people expressed disappointment and astonishment upon learning that mining companies are seeking, and receiving, federal authorization to dispose of mining wastes, called tailings, into lakes and other freshwater bodies inhabited by fish.1 A regulation created under the federal Fisheries Act2 allows for the reclassification of natural water bodies as “tailings impoundment areas”.3 Such a classification means that protection of fish and fish habitat ordinarily provided by the Fisheries Act does not apply and the water body may be used as a disposal site for mine tailings. This article briefly describes the history of this regulatory provision, the purpose for its inclusion under the Fisheries Act and the process through which such reclassifications are made.
The federal Fisheries Act protects fish and fish habitat by controlling the substances a person may deposit into the water and by controlling the activities of a person where those activities may be harmful to fish or fish habitat. The Fisheries Act prohibits the deposit of a “deleterious substance” in any type of water frequented by fish.4 The Fisheries Act defines “deleterious substance” very broadly to refer to substances that alter or degrade water quality to the point where the water is harmful to fish, fish habitat or human use of fish that frequent the water. Mining wastes, or tailings, from metal mines contain substances that can be categorized as “deleterious substances” under the Fisheries Act.
However, some metallic mine tailings generate acids when exposed to air. The release of these acids into the surrounding environment is referred to as acid mine drainage and can pose an environmental threat to surface or ground water. Some see underwater disposal of tailings as an environmentally sound tailings management option, as it can reduce the formation of these acids.5 In order to enable companies to use underwater disposal as a means of minimizing acid mine drainage while avoiding liability under the Fisheries Act, a regulatory loophole was fashioned out of Schedule 2 to the Metal Mining Effluent Regulations.
Metal Mining Effluent Regulations (MMER)
The MMER creates a more specific definition of “deleterious substances” than is provided for in the Fisheries Act. The Act defines deleterious substances broadly in relation to the effect the substance would have on water quality. For the purposes of the MMER, a substance is a deleterious substance if it is included in Schedule 4 to the MMER or is acutely lethal to fish.6 Acute lethality is determined by performing tests prescribed in the MMER. Section 4 of the MMER provides that mine owners or operators may deposit mining effluent containing deleterious substances in any water frequented by fish or in any place under conditions where the substance may enter water frequented by fish, if the concentration of the deleterious substances or the pH level of the effluent does not exceed prescribed amounts and if the deleterious substances are not acutely lethal.7
The MMER allows an owner or operator of a mine to deposit waste rock or effluent containing any concentration of deleterious substances or of any pH level into a “tailings impoundment area”.8 A tailings impoundment area (TIA) is described as one of two things. It may be “a disposal area that is confined by anthropogenic or natural structures or by both, but does not include a disposal area that is, or is part of, a natural water body that is frequented by fish”, or it may be a water body or place set out in Schedule 2 to the MMER.9 Natural water bodies frequented by fish can be designated as tailings impoundment areas by their addition to Schedule 2.
Prior to depositing effluent or waste rock into a TIA, project operators or owners are required to provide, for Ministerial approval, a compensation plan to offset for the loss of fish habitat and an irrevocable letter of credit to cover the costs of the plan’s implementation.10 The operator is required to implement the approved plan and to evaluate its effectiveness. The MMER also requires that an owner or operator depositing effluent or waste rock into a TIA comply with a number of conditions related to monitoring of substances released and the effect on fish and the environment.
The ability to designate water bodies as TIAs pre-dates the introduction of Schedule 2 to the MMER. Under the Metal Mining Liquid Effluent Regulation, the predecessor to the MMER, these decisions could be made at the discretion of the Minister without the formal requirements of the MMER. When Schedule 2 to the MMER was first introduced in 2002, five locations were designated as TIAs.11 Since then, four more waters have been added to Schedule 2.12
The process for the addition of a lake or other water body to Schedule 2 of the MMER begins during the environmental impact assessment for the mining project. A project proponent will indicate whether the project will use TIAs as a tailings management strategy. Because of the potential impact of such a project on fish and fish habitat, a Canadian Environmental Assessment Act (CEAA) review is required. The responsible authority under CEAA has discretion to scope the project for the purposes of the environmental impact assessment (EIA). The opportunities for public input into the review will depend on the type of review undertaken; the Minister has discretion to require consultation under a screening, whereas consultation is required under a comprehensive study. In some cases, screening level assessments have been completed in respect of some projects requiring the addition of new water bodies to Schedule 2 of the MMER.13 In other cases, panel reviews have been done. It is important for interested persons to be aware of which process is being used and what procedural rights exist.
Once the EIA review has been completed, the Department of Fisheries and Oceans (DFO) may recommend that Environment Canada proceed with the addition of water bodies to Schedule 2 to the MMER. This requires an amendment to the MMER. Amendment of federal regulations requires the proposed amendment be pre-published in the Canada Gazette, Part I to allow for a public comment period. A Regulatory Impact Analysis Statement (RIAS) is prepared that considers the impact of the proposed amendment. The consideration of alternatives to the amendment is limited at this stage. DFO and Environment Canada have taken the position that detailed examination of alternatives to the use of TIAs occurs at the EIA review stage, prior to the DFO’s recommendation, rather than at the RIAS stage.14
Environmental groups have expressed frustration with the regulatory process used to amend Schedule 2 to the MMER. These groups have recommended that all project applications that contemplate the use of fishbearing waterbodies as TIAs undergo a panel review or joint panel review under the CEAA. They have also recommended a longer comment period upon the pre-publishing of the amendments to the MMER in the Canada Gazette, Part I, noting in one case that a 30 day comment period was provided, but that the compensation plan was not released for review until 10 days after the MMER amendment was published in the Gazette. This was seen by groups as providing inadequate time to prepare comments. 15
1 Terry Milewski, “Lakes across Canada face being turned into mine dump sites” CBC News (16 June 2008), online: CBC News http://www.cbc.ca/canada/story/2008/06/16/condemned-lakes.html.
2 Fisheries Act, R.S.C. 1985, c. F-14.
3 Metal Mining Effluent Regulations, S.O.R./2002-222. (“MMER”).
4 Fisheries Act, supra note 2, s. 36(3).
5 Regulatory Impact Analysis Statement, C. Gaz. 2006 II at 1485.
6 MMER, supra note 3, Schedule 4.
7 Environmental groups have expressed concerns that the threshold concentrations prescribed in Schedule 4 to the MMER are much higher than are acceptable in other jurisdictions and are not appropriate to ensure protection of fish and fish habitat. Office of the Auditor General of Canada, Environmental Impact of Federal Metal Mining Effluent Regulations, Petition No. 219 (7 October 2007) at 35 of 98 (“Mining Watch Petition”).
8 MMER, supra note 3, s. 4.
9 Ibid., s. 5.
10 Ibid., s. 27.1.
11 Supra note 5 at 1484.
12 MMER, supra note 3, Schedule 2. A number of lakes in British Columbia, Nunavut, Manitoba and Newfoundland, as well as a portion of the Kerness Creek in British Columbia, have been designated under the MMER.
13 Mining Watch Petition, supra note 7 at 12 of 98. For projects in Nunavut, additional assessments are carried out pursuant to the Nunavut Land Claims Agreement.
14 Supra note 5 at 1486. The only alternative considered at this stage was maintaining the status quo and not amending the MMER.
15 Mining Watch Petition, supra note 7 at 25 of 98.
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