February 2013

Miners huddle over northern puddles

Bill C-45 leaves muddled definition of “navigable” and other key terms

By Zoë Macintosh

Small, shallow bodies of water can often take up more area than land in Canada’s Far North. Currently, they are considered “navigable” as long as they can float a canoe, which causes permitting headaches | Courtesy of Nunavut / NWT Chamber of Mines

Although Bill C-45, the omnibus bill approved by the Senate last December, overhauled the Navigable Waters Protection Act (now the Navigation Protection Act), it did not bring much clarity to those in the mining industry most affected by the legislation. The Mining Association of Canada (MAC) is pressing to address uncertainties – such as the definition of “navigable” – that carry over in Bill C-45, which could perpetuate unpredictable regulatory delays for mining companies. Those with projects in the northern Prairies and in the territories are particularly concerned, as countless small water bodies, which may or may not be considered navigable, speckle their landscapes.

“The problems we had before are going to continue,” said Justyna Laurie-Lean, vice-president of environment and health for MAC, whose team has spent months dissecting the bill. In fact, according to Laurie-Lean, in addition to “navigable,” “dewatering” is a newly ambiguous term in the legislation. It is too early to know exactly how the problem will be addressed, but a ­statement from Transport Canada confirmed its National Department, as well as its Prairie and Northern Region Department, are “working closely with the mining industry to clear up any ambiguities.”

Avalon Rare Metals is one company that has a lot riding on these definitions, as its flagship Nechalacho property contains three bodies of water that it believes should not be considered “navigable.” According to Mark Wiseman, Avalon’s vice-president of sustainability, MAC members have been discussing clarifying terminology with Transport Canada.

The next meeting will take place within two months and will touch on a number of suggested exclusions from the term “navigable.” While it is too late to change the wording of the law, collaboration between industry and Transport Canada on guidance documents could help create consistency in how the law is interpreted.

“The key for us is that if your body of water is not considered ‘navigable,’ then that whole Navigation Protection Act approval process to use the ponds isn’t required,” Wiseman said. Last summer, a visit from the Department of Transport created a potential delay to his company’s project, which had already passed scrutiny from the local Aboriginal community, Fisheries and Oceans Canada, and Environment Canada for the use of the three shallow ponds as tailings impoundment areas.

“It’s not often you get a circumstance where the First Nations are pushing for development, and government is pushing against it,” noted Donald Bubar, Avalon’s CEO. “That tells you something.” Located at the top of a watershed, Avalon’s three water bodies freeze to the bottom, have no fish in them, and following discussions on a number of tailings area options, were agreed upon as the optimal location for a tailings management site by Aboriginal groups and others for those very reasons, said Wiseman.

The largest, Ring Lake, is 16.7 hectares in area, said Wiseman, while the other two were only 12 and two hectares, respectively. All bodies of water on Avalon’s property are being considered “navigable” by Transport Canada because they can float a canoe – the organization’s historical benchmark for navigability.

That classification means Avalon will require an order from the ­governor-in-council, an extra permit that Bubar estimates could take six months to a year to obtain. As a result, the Nechalacho project risks being delayed. But, Bubar said, that risk is a potential showstopper for mining investment because it cannot be quantified.

The way the law is worded leaves too much room for personal interpretation in how it is enforced, according to Stephane Robert, manager of regulatory affairs in Nunavut for Agnico-Eagle. “If you need to have authorization of [the] governor-in-council, they can decide not to give it to you,” Robert said. “And if they don’t give to you, it can jeopardize your project.”

Robert recalled two different Department of Transport officials who produced opposite interpretations of one water body planned for pumping by a floating barge on an Agnico-Eagle site a few years ago. The experience has left him wary of approvals needed for the company’s Meliadine project in Nunavut, which contains more than 50 bodies of water that will be affected by the mine.

While many of the lakes at the Meliadine project are tiny, they cover the deposit and will need to be “dewatered” – another word left undefined by the legislation. According to Tom Hoefer, executive director of the Nunavut and Northwest Territories Chamber of Mines, there is more water than land in many northern scenarios.

“It’s not like the south,” said Bubar. “There can be thousands and thousands of bodies of water as big as your kitchen or your bathtub that could conceivably float a canoe.”

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