ARCHIVED — Vol. 146, No. 51 — December 22, 2012

Proclamation Exempting Lake Pignac and Lake B, Located in Quebec, from the Operation of Section 22 of the Navigable Waters Protection Act

Statutory authority

Navigable Waters Protection Act

Sponsoring department

Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

Background

The Navigable Waters Protection Act (NWPA) protects the public right of navigation. It ensures that works constructed in navigable waterways are reviewed and regulated to minimize the overall impact on navigation.

The NWPA also prohibits the dumping of materials into any navigable waterway, unless it is shown to the satisfaction of the Governor in Council that the public interest would not be injuriously affected by that activity.

Cliffs Natural Resources Inc. is developing and operating an iron mine in the Lake Bloom area near Fermont, Quebec. This project involves creating two waste rock piles, which requires completely filling in two lakes, Lake Pignac and Lake B. Section 22 of the NWPA prohibits the dumping of material into a navigable waterway in order to protect the public right of navigation.

Due to the proximity of these lakes to the pit, the lakes must be filled in for safety reasons and to prevent water from flowing into the pit. Besides water flow into the pit, if these watercourses were to remain in place, blasting could damage the thin layer of rock separating the lakes from the pit and the risks of slumping would increase. The Order in Council and proclamation would result in the loss of the public right to navigate on Lake Pignac and Lake B, but would lessen the risk of slumping.

Issues

Section 22 of the NWPA prohibits the dumping of materials into any navigable waterway unless it is shown to the satisfaction of the Governor in Council that the public interest would not be injuriously affected by that activity, which is subsequently authorized by proclamation.

In this instance, a proclamation is required in order to proclaim Lake Pignac and Lake B exempt from the application of section 22 of the NWPA. This would allow for the deposit of waste rock piles in Lake Pignac and Lake B.

Objectives

The purpose of this proposal is to have the waters of Lake Pignac and Lake B declared, by proclamation, exempt from the application of section 22 of the NWPA. Once a proclamation is issued, Cliffs Natural Resources Inc. would have the authorization required for certain aspects of the project. Specifically, this would include the deposit of waste rock piles in Lake Pignac and Lake B.

Given that the two watercourses have the potential for small craft boating and that filling in the two lakes would eliminate all potential for navigation, the applicable provisions of the NWPA need to be considered. Due to the low potential of using these bodies of water for navigation purposes, Transport Canada’s (TC) Navigable Waters Protection Program (NWPP) has determined that filling in the lakes is an acceptable course of action that would not injuriously affect the public interest.

Description

In accordance with section 23 of the NWPA, this proposal would proclaim Lake Pignac and Lake B exempt from the application of section 22 of the NWPA.

Specifically, an Order in Council, pursuant to section 23 of the NWPA, would direct that a proclamation be issued declaring that the waters of Lake Pignac and Lake B, located in Quebec, be exempted from the operation of section 22 of the NWPA, which prohibits the dumping of material into a navigable waterway. As a result, this would enable the deposit of two water rock piles which would completely fill in the two lakes.

Regulatory and non-regulatory options considered

According to a report by Consolidated Thompson Iron Mines Limited (now Cliffs Natural Resources Inc.) dated March 18, 2010, mine site development is near final completion and production has already begun. The first shipments of ore from the port of Sept-Îles commenced in May 2010. As of December 31, 2009, a total of 463 million dollars had been spent on the development of the Lake Bloom mine.

The proponent reviewed its mining project and researched other alternatives and has determined that they would face significant negative economic impacts if an Order in Council under section 23 of the NWPA is not considered and a proclamation is not issued.

Benefits and costs

This mining project will have significant positive economic impacts for local residents and for all Canadians. This project is located in an isolated region where the entire population’s livelihood is linked to the direct or indirect benefits of mining.

The new mine will generate jobs and long-term benefits for the entire region. The project represents an overall investment of approximately $500 million. Approximately 400 jobs will be created by construction activities and approximately 250 direct jobs will be created during mine operation. Local and regional labour, both Aboriginal and non-Aboriginal, will have the chance to contribute to the project.

An analysis by TC has determined that the navigation potential of Lake Pignac (800 ´ 430 m) and Lake B (500 ´ 330 m) is very low given their small size and that access for public navigation is difficult due to geographical limitations. These two watercourses are located at the top of a watershed and are not part of any navigable waterway network.

The potential impacts on navigation of filling in Lake Pignac and Lake B with two waste rock piles were evaluated pursuant to the NWPA during the analysis and consultation phases of the project as a whole. Further to the detailed review and analysis of the project undertaken by TC, TC determined that filling in Lake Pignac and Lake B would be acceptable given the low potential of using these water bodies for navigation.

Consultation

During the approval process for the mining project, the proponent published notices pursuant to the NWPA, and tabled documents on the project as a whole for the purpose of public consultation. Transport Canada did not receive any comments concerning the possible impacts on navigation.

Consultation with Aboriginal communities

This mining project is located on land that is the subject of tripartite land claim negotiations between federal and provincial governments as well as the Ashuanipi Corporation which, since summer 2006, has represented the communities of Innu Takuaikan Uashat Mak Mani-Utenam (ITUM) and Matimekush-Lac John. Furthermore, some Innu families in Uashat-Maliotenam have trapping land in the sector that will be affected by the proposed mining work. These two communities were contacted on various occasions by responsible authorities, and ITUM representatives were consulted twice to inform them of the federal environmental assessment process undertaken in accordance with the previous Canadian Environmental Assessment Act and to give them the opportunity to express concerns and expectations with regard to federal regulatory responsibilities. These communities also participated in public hearings held by the Quebec government as part of the Quebec procedure of the Bureau d’audiences publiques sur l’environnement (BAPE).

This project is not expected to significantly affect the traditional land usage by the Innu. Moreover, access to the land is unlikely to be compromised for Innu users. However, a portion of the trapping land would be lost. As compensation, an Impact and Benefit Agreement (IBA) was signed between ITUM and the proponent. This IBA includes provisions specifying that families whose trapping lands are disturbed will be compensated. Moreover, based on the information provided by the proponent and ITUM, representatives of the Uashat-Maliotenam Innu community will participate in the proponent’s proposed monitoring programs pursuant to the terms and conditions of the IBA.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal.

Small business lens

The small business lens does not apply to this proposal.

Rationale

As a result of a detailed review and analysis of this proposal, TC has determined that the public interest would not be injuriously affected by the deposit of waste rock piles into Lake Pignac and Lake B.

On October 9, 2008, in addition to the application for an Order in Council under section 23 of the NWPA, TC issued approvals pursuant to subsection 5(1) to build two embankments, as well as approvals pursuant to subsection 5(2) to build two inlets.

Fisheries and Oceans Canada has issued its required authorizations pursuant to the Fisheries Act.

Natural Resources Canada confirmed that this mining project in the Lake Bloom sector does not require a specific regulatory approval with regard to the manufacturing safety and disposal of explosives.

Environment Canada confirmed that this mining project in the Lake Bloom sector does not require a specific regulatory approval with regard to the Metal Mining Effluent Regulations made under the Fisheries Act.

Through BAPE, the Quebec government appointed a commission to review and to hold public hearings on all impacts of this project. The commission’s report shows that the project is acceptable.

Further to the investigation and public hearing report, the Quebec government issued Order 137-2008 regarding the issuance of an authorization certificate to Consolidated Thompson Iron Mines Limited for the iron mine project in the Lake Bloom sector on the land owned by the Municipality of Fermont.

Therefore, the issuance of an exemption pursuant to section 23 of the NWPA would be consistent with other required authorizations already issued for this mining project.

Implementation, enforcement and service standards

The Order in Council would, by proclamation, declare the waters of Lake Pignac and Lake B exempt from the operation of section 22 of the NWPA, therefore, it would be “removing the right to public navigation.” In this instance, there would be no additional regulatory requirements under the NWPA and no future regulatory requirements for the Lake Bloom area under the NWPP and the NWPA.

Contact

René Laperrière
Navigable Waters Protection Program
Marine Safety
Transport Canada
901 Du Cap-Diamant Street, 3rd Floor
Québec, Quebec
G1K 4K1
Telephone: 418-648-7507
Fax: 418-648-7640
Email: rene.laperriere@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 23 of the Navigable Waters Protection Act, proposes to direct that a proclamation be issued declaring that the waters of Lake Pignac and Lake B, located in Quebec, be exempt from the operation of section 22 of that Act with respect to the depositing of waste rock piles by Cliffs Natural Resources Inc.

Interested persons may make representations concerning the proposed proclamation within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be sent to Tia M. McEwan, Manager, Regulatory Affairs, Marine Safety, Transport Canada, Place de Ville, Tower C, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel: 613-998-5352; fax: 613-991-5670; email: tia.mcewan@tc.gc.ca).

Ottawa, December 13, 2012

JURICA ČAPKUN
Assistant Clerk of the Privy Council

[51-1-o]