Vol. 151, No. 14 — July 12, 2017

Registration

SOR/2017-128 June 20, 2017

FISHERIES ACT

Regulations Amending the Metal Mining Effluent Regulations

P.C. 2017-780 June 20, 2017

His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 36(5) of the Fisheries Act (see footnote a), makes the annexed Regulations Amending the Metal Mining Effluent Regulations.

Regulations Amending the Metal Mining Effluent Regulations

Amendment

1 Schedule 2 to the Metal Mining Effluent Regulations (see footnote 1) is amended by adding the following in numerical order:

Item

Column 1

Water or Place

Column 2

Description

28

A portion of South Teigen Creek,
British Columbia

A portion of South Teigen Creek, located approximately 65 km northwest of Stewart, British Columbia. More precisely, an 8.1-km portion of the creek extending northwestwards and downstream from the point located at 56°37′53″ north latitude and 129°54′44″ west longitude to the centre of a dam located at 56°40′11.57″ north latitude and 129°58′20.92″ west longitude.

29

A portion of North Treaty Creek, British Columbia

A portion of North Treaty Creek, located approximately 65 km northwest of Stewart, British Columbia. More precisely, a 3.3-km portion of the creek extending southwards and downstream from the headwaters of the creek located at 56°37′34″ north latitude and 129°54′50″ west longitude to the centre of a dam located at 56°35′54.24″ north latitude and 129°51′25.31″ west longitude.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Seabridge Gold Inc. (Seabridge) is proposing to construct and operate the Kerr-Sulphurets-Mitchell (KSM) Mine Project, a combined open pit and underground gold, copper, silver and molybdenum mine in northwest British Columbia. This project is expected to affect fish-frequented portions of North Treaty Creek and South Teigen Creek due to the disposal of mine tailings. A fish-frequented water body can only be used for the disposal of mine tailings if the Metal Mining Effluent Regulations (MMER), under the Fisheries Act, are amended to add such water bodies to Schedule 2 of the MMER.

Description: The Regulations Amending the Metal Mining Effluent Regulations (the Amendments) will add portions of North Treaty and South Teigen creeks to Schedule 2 of the MMER, allowing the use of those water bodies for the disposal of tailings from the KSM Mine Project. Seabridge will be required to develop and implement a fish habitat compensation plan to offset the resultant loss in fish habitat. Seabridge, and any future owner or operator, is required to submit an irrevocable letter of credit to ensure funds are available should the company fail to address all the elements of the fish habitat compensation plan.

Cost-benefit statement: The Amendments will allow the use of water bodies for the disposal of mine tailings as considered within the federal environmental assessment transitional comprehensive study on the KSM Mine Project, led by the Canadian Environmental Assessment Agency (the Agency). The Agency concluded that the KSM Mine Project is not likely to cause significant adverse environmental effects, taking into account the implementation of the proposed mitigation measures. The KSM Mine Project is expected to bring economic benefits to business as well as local and regional communities.

The Amendments will result in the loss of 10.6 hectares (ha) of fish habitat in the Bell-Irving River watershed, while the development and implementation of the fish habitat compensation plan will create 18.2 ha of new fish habitat within the same watershed, yielding a net benefit of 7.6 ha of fish habitat. The total cost attributable to the development and implementation of the fish habitat compensation plan, incurred by Seabridge, will be $6.9 million. (see footnote 2) Incremental costs to the Government, associated with the fish habitat compensation plan, will be low.

“One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply to the Amendments, as they will not impose new administrative requirements on the regulated community. The Amendments do not trigger the small business lens as the KSM Mine Project is owned and operated by Seabridge, which is not considered a small business. (see footnote 3)

Domestic and international coordination and cooperation: Public consultations with local and Indigenous communities, the U.S. government and the State of Alaska were conducted in cooperation with the Department of Fisheries and Oceans and the Canadian Environmental Assessment Agency.

Background

Metal Mining Effluent Regulations

The Metal Mining Effluent Regulations (MMER) came into force on December 6, 2002, under the Fisheries Act (the Act). The Act prohibits the deposit of deleterious substances in waters frequented by fish. The use of a water body frequented by fish for mine tailings disposal can only be authorized through an amendment to the MMER, which adds that water body to Schedule 2 of the Regulations.

When a fish-frequented water body is added to Schedule 2, section 27.1 of the MMER requires the development and implementation of a fish habitat compensation plan to offset the loss of fish habitat that occurs as a result of the use of fish-frequented water bodies for mine tailings disposal. Mine owners or operators are required to submit an irrevocable letter of credit ensuring that funds are in place should the owner or operator fail to address all elements of the fish habitat compensation plan.

The MMER also prescribe the maximum authorized limits for deleterious substances in mine effluent, listed in Schedule 4 (e.g. copper, cyanide, and total suspended solids), and require that mine effluent not be acutely lethal to fish. (see footnote 4) Furthermore, the MMER require that mine owners or operators sample and test effluent to ensure compliance with the authorized limits. The Department of the Environment publishes annual performance summaries of metal mines with respect to selected standards prescribed by the MMER.

The Kerr-Sulphurets-Mitchell Mine Project

Seabridge is proposing to construct and operate the Kerr-Sulphurets-Mitchell (KSM) Mine Project, a combined open pit and underground gold, copper, silver, and molybdenum mine in northwest British Columbia. The KSM Mine Project will be located in the coastal mountains of northwestern British Columbia, about 65 km northwest of Stewart and approximately 35 km east of the British Columbia border with Alaska.

The KSM Mine Project is designed to process approximately 130 000 tonnes of ore per day over an anticipated operational life of 52 years. Ore will be mined by a combination of open pits and underground mining methods from four mineral deposits: the Mitchell, Sulphurets, Kerr, and Iron Cap deposits. Crushed ore will be transported via an approximately 23-km tunnel and conveyor to the plant site. The concentrate will then be trucked to port facilities in Stewart for shipping to overseas markets. According to Seabridge, the construction of the mine is expected to begin in 2017.

The KSM Mine Project encompasses two main working areas, the mine site area and the processing and tailings management area, which are connected by two parallel tunnels (see Figure 1). The mine site area includes three separate open-pit mines, two underground block cave mines, rock storage facilities, an ore preparation complex, diversion structures, and water storage and treatment facilities. The processing and tailings management area includes a milling facility and a tailings impoundment area (TIA) into which tailings will be deposited during the operation of the mine.

The KSM Mine Project is expected to produce approximately 9.9 billion pounds of copper, 38.2 million ounces of gold, 191 million ounces of silver, and 213 million pounds of molybdenum. (see footnote 5) A financial analysis, as reported and estimated by Seabridge, forecasted a net present value of $4.5 billion for the KSM Mine Project. (see footnote 6)

In discussions with the federal government’s Major Projects Management Office in August 2016, Seabridge indicated that the mine will provide annual onsite employment for 1 800 people over the five-year construction period, with direct and indirect jobs across Canada for more than 7 200 people per year. During, the operation, Seabridge estimates that the mine will employ more than 1 000 people per year, with annual indirect jobs across Canada of more than 5 600 people.

Tailings management for the KSM Mine Project

The KSM Mine Project is expected to produce at least 2.3 billion tonnes of tailings over the project life. To manage these mine tailings on a long-term basis, Seabridge plans to construct and operate a TIA located east of, and almost 1 km downslope from the milling facility.

The TIA will be located within a U-shaped glacial valley containing the fish-frequented upper tributaries of Teigen and Treaty creeks in the Bell-Irving River watershed, which flows into the Nass River and eventually to the Pacific Ocean, southeast of the Canada–United States border.

All water from the mine will be managed within this facility, and most of the water will be recycled for use in the ore milling process. Excess water will be treated as necessary to meet the MMER and provincial permit requirements, and will be released into South Teigen Creek via a spillway.

Figure 1: The KSM Mine Project illustrating the location of the TIA

Map - Detailed information can be found in the surrounding text.

The TIA will be divided into three cells. The north cell of the TIA will be in operation from year 1 to year 25. The south cell of the TIA will be in operation from year 25 until year 52, while the centre cell (CIL) will be in operation throughout years 1 to 52. Tailings from ore processing are expected to contain elevated concentrations of cyanide and dissolved metals, notably copper. In order to mitigate contamination and seepage issues, Seabridge will separate these high-sulphide tailings and store them in the lined centre cell.

Environmental assessment and technical reviews

The KSM Mine Project was subject to environmental assessments (EAs) under both federal and provincial legislation. The provincial EA, completed on July 30, 2014, considered the full scope of the mine, as proposed by Seabridge. The provincial and federal EAs were coordinated through a single cooperative EA process. A Federal Transitional Comprehensive Study level EA (Federal EA) of the project was undertaken under the former Canadian Environmental Assessment Act (CEAA, 1992) by the Canadian Environmental Assessment Agency (the Agency). The EA was conducted in a manner that also met the EA requirement of the Nisga’a Final Agreement. The Agency prepared the Comprehensive Study Report (see footnote 7) in consultation with the Department of Fisheries and Oceans, the Department of Natural Resources, the Department of the Environment, the Department of Transport, the Department of Health, the Department of Indian Affairs and Northern Development, the Department of Canadian Heritage, and Statistics Canada. On December 19, 2014, the Federal EA concluded that “the KSM Project is not likely to cause significant adverse environmental effects taking into account the implementation of the mitigation measures described in this report.”

Seabridge also voluntarily convened an independent Geotechnical Review Board to provide guidance and recommendations to help Seabridge enhance structural safety and integrity of the project’s TIA and water storage dam. The Review Board completed its first review on April 11, 2016, and concluded that the dams and structures of the TIA have been appropriately designed, and will be safe to operate. (see footnote 8) Seabridge indicates that it is committed to addressing the recommendations of the Review Board as the project advances, and is committed to transparency: the results of the Review Board’s first report have been shared with the federal government, the government of British Columbia, the State of Alaska, local Indigenous communities, and other stakeholders who participated in the EA phase of the project. The Review Board is expected to meet at least once per year during the entire project life to ensure ongoing dam safety.

In addition, on August 2, 2016, Seabridge released a Best Available Technology (BAT) study for the TIA (see footnote 9) by Klohn Crippen Berger, an engineering design firm. The BAT study confirmed that the KSM TIA is the best available technology for tailings deposition and the most environmentally responsible design to minimize long-term risks associated with the TIA. The study also concluded that the North Treaty-South Teigen site for the TIA is the preferred location. To further validate the conclusion of this study, Seabridge also commissioned an independent review of the study by Dr. Dirk van Zyl (see footnote 10), who was a member of the Review Panel investigating the tailings dam failure at the Mount Polley mine. Dr. van Zyl concluded that the North Treaty-South Teigen site for the TIA, as proposed by Seabridge, is the preferred option, and that he supports the overall conclusions of the KSM BAT study.

During the EA, concern was expressed that seepage from the TIA may escape beyond the footprint of the proposed seepage collection ponds and dams. To ensure that the anticipated seepage from the TIA would be collected, Seabridge proposed to move the dam infrastructure approximately 500 metres downstream, both on the North Treaty and South Teigen creeks. The shift of location resulted in an increase of the impacted stream length by 1.1 km. This design update has been reviewed and confirmed by the BAT study. Department of the Environment officials have confirmed that the fish habitat compensation plan submitted by Seabridge adequately compensates for the loss of fish habitat resulting from these changes.

Issues

Seabridge proposes to use fish-frequented portions of North Treaty and South Teigen creeks for the disposal of mine tailings from the KSM Mine Project. However, a fish-frequented water body can only be used for the disposal of mine tailings if the MMER are amended to add those water bodies to Schedule 2 of the Regulations, as tailings impoundment areas.

Objectives

The objective of the Amendments is to allow Seabridge to use two fish-frequented water bodies (portions of North Treaty Creek and South Teigen Creek) for the disposal of tailings from the KSM Mine Project.

Description

The Amendments

The Amendments add two water bodies, portions of North Treaty Creek and South Teigen Creek, to Schedule 2 of the MMER. (see footnote 11) As required under section 27.1 of the MMER, Seabridge has developed and will implement a fish habitat compensation plan to offset the resultant loss of fish habitat. Seabridge (and any future owner or operator) is also required to submit an irrevocable letter of credit to ensure that funds are in place to cover all costs associated with the implementation of all elements of the fish habitat compensation plan.

Fish habitat compensation plan

Seabridge prepared a fish habitat compensation plan that proposes to create two compensation sites within the Treaty Creek and Bell-Irving River watersheds: the Treaty Creek and the Taft Creek sites. These projects will target both Dolly Varden and Coho Salmon habitats, which represent valuable commercial, recreational, and Indigenous fisheries.

The Treaty Creek site will be located at the junction of North Treaty Creek and Treaty Creek, approximately 8 km southeast of the TIA and approximately 20 km upstream of the confluence of Treaty Creek and the Bell-Irving River. The site is 2 km long and approximately 500 m wide, and includes a large alluvial fan at the mouth of North Treaty Creek and a flat floodplain of Treaty Creek east of the fan. The existing fish habitat at this site is of poor quality with obstructed fish access and low overall fish productivity.

The Treaty Creek site will provide a large amount of permanent, good quality habitat for rearing, overwintering and spawning. It will also support all life stages of the two target species, Dolly Varden and Coho Salmon. The plan entails the construction of a surface water intake from North Treaty Creek to supply reliable flow into a protected side channel and through a series of ponds, the construction of an area of 15 ha of good quality overwintering and rearing habitat in ponds, and the construction of 2 118 m of channels to create an area of 0.4 ha of habitat with complex features. The plan will also enhance functional aspects of wetland ecosystems, provide spawning habitat for Coho Salmon and Dolly Varden and maintain fish access to the site. The fish habitat gains for this compensation site are estimated to be 15.4 ha.

The Taft Creek site is a large, fourth-order tributary to the Bell-Irving River, comparable in size to Teigen Creek and Treaty Creek, located approximately 25 km southeast of the TIA and 40 km southeast of Bell II Lodge, on Highway 37. This site is 1 km long and approximately 300 m wide including low and high bench floodplain terraces on the southeast bank of Taft Creek. At this site, Seabridge proposes to construct 2.6 ha of good quality, off-channel overwintering and rearing habitat in ponds. Seabridge also proposes to construct 968 m of stream channels to create 0.2 ha of rearing habitat with complex habitat features and to maintain fish access. The fish habitat that will be created will include components that enhance habitat value for fish, stabilize slopes and shoreline areas, and create ancillary habitat for wildlife. The plan will consist of re-vegetating riparian areas, planting aquatic vegetation, adding large woody debris and other cover features, and adding spawning substrates. It will support the two target species, Dolly Varden and Coho Salmon. The fish habitat gains for the Taft Creek site are approximately 2.8 ha.

The area of fish habitat gain resulting from both Taft Creek and Treaty Creek sites is approximately 18.2 ha. Given that a total area of 10.6 ha of fish habitat will be lost due to the Amendments, the fish habitat compensation plan will yield a net gain of 7.6 ha of fish habitat.

Regulatory and non-regulatory options considered

Seabridge prepared an assessment of alternatives for the disposal of tailings for the KSM Mine Project. (see footnote 12) This assessment was considered during the federal EA of the KSM Mine Project to mitigate potential impacts on fish habitat.

Seabridge evaluated 14 regulatory and non-regulatory alternatives for managing tailings, of which four were selected as potentially feasible alternatives to be assessed in detail from environmental, technical and socio-economic perspectives.

Alternative technologies for tailings management and disposal

In addition to distinct locations for the establishment of a TIA, Seabridge also considered a number of alternative technologies for tailings management and disposal that would not result in a loss of fish habitat, and would therefore not require amendments to the MMER (i.e. non-regulatory options). These include three main alternatives to tailings slurry including thickened tailings, paste tailings and dry stack tailings as well as other tailings disposal technologies, including conventional impoundment, subaqueous or saturated storage, submarine storage, in-pit tailings storage, and co-disposal. Given the large quantity of tailings to be produced, the topography of the KSM Mine Project site, the accessibility associated with the mountainous topography, and the presence of numerous fish-frequented water bodies, Seabridge determined it is unlikely that a feasible and viable TIA could be developed as a non-regulatory option, regardless of the technology used for tailings management and disposal.

Regulatory options for tailings disposal

Regulatory options involve the disposal of tailings in a manner that would result in direct impacts (see footnote 13) on one or more fish-frequented water bodies, and would therefore require that the water bodies be added to Schedule 2 of the MMER for the option to be implemented.

As stated above, Seabridge identified 14 potential tailings storage sites for a detailed assessment, of which four met the pre-screening criteria. All four alternative sites identified for further consideration are considered regulatory options, given that they would directly impact fishfrequented water bodies. The four regulatory options and their characteristics are listed below, in Table 1. The remainder of the alternatives were not further considered due to limitations such as large dam requirements, poor dam foundations, water management issues, insufficient tailings capacity, and distance from the mine site.

The preferred single-site alternative (Option 1) will be located in a U-shaped valley between North Treaty Creek and South Teigen Creek, approximately 24 km east of the mine site. The elevation of the valley base ranges from 840 m to 900 m, and valley slopes rise up to a maximum of 1 900 m. The site configuration is favurrable for tailings storage due to gentle slopes and greater tailings storage capacity. The preferred TIA will require the construction of four containment dams: a north dam, a southeast dam, a saddle dam, and a splitter dam. The north, saddle and splitter dams will allow staging the TIA into the north and centre cells in the first 25 years of the project. The south cell will be in operation from year 25 to year 52. The total dam volume of 190 million cubic merers will allow storage of 2.67 billion tonnes of tailings, which are expected to provide 100% of the required tailings storage for the life of the KSM Mine Project. Two seepage collection dams will be constructed downstream of the TIA.

Option 1 has been identified as the preferred option as it will provide more than sufficient storage capacity at one site, favurrable conditions for dam construction, optimal water management and good natural groundwater containment from ridges on each side of the TIA. This option will be the only site capable of storing the total anticipated mine tailings tonnage, with 240 m high dams, and will also have the lowest risks associated with water management. The topography and low geohazards at the site present favourable conditions for construction and operation of perimeter diversions. Some disadvantages of this option will consist of the need to discharge, and therefore treat effluent to the South Teigen Tributary, and the need for construction of a 23-km long tunnel to link the mine site to the TIA. Seabridge estimates the cost for this option will be $2.20 billion, including construction, operation, and closure of the TIA.

The three other regulatory options assessed in-depth by Seabridge consisted of the combined sites West Teigen Lake and Unuk Valley (Option 2), West Teigen Lake and Upper Treaty Creek (Option 3), and West Teigen Lake and Scott Creek Valley (Option 4). As part of these three options, the West Teigen Lake site would provide solid foundations, low pond areas and optimal water management, but it would not possess adequate storage capacity (only 64% of capacity), would result in direct impacts on a lake, and would require a 16-km tunnel from the mine site. The second site of Option 2, the Unuk Valley site, would store over half of the mine tailings (61%), but water control issues and poor geological conditions would introduce very significant water management risks during operations and upon closure.

Option 3 consisted of a combination of the above described West Teigen Lake site and the Upper Treaty Creek. The Upper Treaty site would store approximately 70% of tailings, but it also has significant water management issues as a result of deficient geological conditions, complex water controls, and high water treatment requirements.

As part of the combined Option 4, the Scott Creek Valley site would require three tailing dams. The main dam would be up to 253 m high, with the remaining two dams being much smaller (27 m and 8 m above centerline). The estimated total capacity of the Scott Creek Valley site for a 253 m high main dam is 0.89 billion tonnes of tailings, which would be only 36% of the tailings capacity.

On the basis of the information provided as part of the federal EA process, the Department of the Environment concluded that the establishment of a TIA in portions of North Treaty and South Teigen creeks (Option 1) is the preferred option.

Table 1: Summary of regulatory options considered for tailings disposal (see footnote 14)

Regulatory Options

Characterization Criteria

Option 1 (preferred)

Option 2

Option 3

Option 4

 

North Treaty and South Teigen Creeks

Unuk Valley and West Teigen Lake Combined

Upper Treaty Creek and West Teigen Lake Combined

Scott Creek Valley and West Teigen Lake Combined

Number of fish species impacted

1 fish species
(Dolly Varden)

1 fish species
(Dolly Varden)

1 fish species
(Dolly Varden)

3 fish species (Dolly Varden, bull trout, and mountain whitefish)

Fish habitat losses

Dolly Varden spawning and migration

Riverine and littoral zone habitat for Dolly Varden and access to upstream habitat for Dolly Varden

Littoral zone habitat and rearing habitat for Dolly Varden

Access to sockeye salmon spawning grounds and littoral zone habitat for Dolly Varden

Lake area directly affected (ha)

0.7

36.3

42.8

37.5

TIA capacity (billion tonnes)

2.67

Combined, 3.12 (Unuk 1.52) and West Teigen (1.6)

Combined, 3.33 (Upper Treaty 1.73) and West Teigen (1.6)

Combined, 2.49 (Scott 0.89) and West Teigen (1.6)

TIA footprint (km2)

13.9

20.3

78.0

22.1

Stream length affected (km)

42.7 (see footnote 15)

84.3

84.3

92.7

Number of dams required

3 dams

3 dams

3 dams

5 dams

Maximum dam height (m)

240

215

250

253

Total dam volume (Mm3)

190

105.9

106.8

74.1

Number of seepage dams required

2 seepage dams

3 seepage dams

3 seepage dams

3 seepage dams

Number of diversion dams required

1 diversion dam

8 lateral diversion dams

1 significant lateral channel diversion dam

2 lateral diversion dams

Ease of construction

Good constructability

Fair constructability (West Teigen) and poor constructability (Unuk)

Fair constructability (West Teigen) and poor constructability (Upper Treaty)

Fair constructability at both sides

Ease of operations

Good operational characteristics

Fair to poor operational characteristics

Poor operational characteristics

Fair operational characteristics

Total TIA costs

$2.20 billion for the construction/operation and closure of the TIA

$2.42 billion for the construction/operation and closure of the TIA

$2.57 billion for the construction/operation and closure of the TIA

$2.77 billion for the construction/operation and closure of the TIA

Benefits and costs

Analytical framework

The proposed KSM Mine Project, including the proposed TIA, was evaluated via federal and provincial EA processes. The federal EA for the KSM Mine Project was completed on December 19, 2014, following which Seabridge advanced the project to the regulatory and permitting phase.

The Amendments will add two fish-frequented water bodies, portions of North Treaty Creek and South Teigen Creek, to Schedule 2 of the MMER, to allow these water bodies to be used for the disposal of tailings from the KSM Mine Project.

Given the absence of a non-regulatory option for tailings disposal that is technically feasible, a meaningful baseline scenario could not be constructed, and in turn no cost-benefit analysis could be performed. Instead, the analysis below examines the impacts of the Amendments on the environment, government, business, health, society and culture.

Environmental impacts

The environmental impacts associated with the proposed Amendments will be limited to the loss of fish and fish habitat, and the offsetting gains associated with the implementation of the fish habitat compensation plan.

The loss of 10.6 ha of fish habitat associated with the use of portions of North Treaty and South Teigen creeks for tailings disposal will be compensated through the development and implementation of a fish habitat compensation plan. The Treaty Creek and Taft Creek sites will result in the creation of 15.4 ha and 2.8 ha, respectively, of fish habitat.

As part of the construction of the TIA, Seabridge will facilitate the removal and relocation of an estimated 30 000 Dolly Varden from South Teigen and North Treaty creeks. As a result, Seabridge has developed a fish salvage strategy to ensure that the fish are relocated to suitable water bodies within the Teigen and Treaty creeks watersheds as well as other mitigation measures to monitor the plan. The relocation plan will salvage and relocate the fish in two phases under the supervision of a professional biologist. The first phase will relocate 5 000 fish from South Teigen Creek into the Teigen Creek watershed and the second phase (20 years later) will relocate 25 000 fish from the North Treaty Creek into the Treaty Creek watershed. Fish will be captured and handled following established protocols designed to minimize injury and stress to captured fish. The Department of the Environment, the Department of Fisheries and Oceans, the British Columbia Ministry of Environment, and local communities will remain engaged on the relocation plan and the fish habitat compensation plan as a whole.

The federal EA for the KSM Mine Project, completed on December 19, 2014, concluded that “the KSM Project is not likely to cause significant adverse environmental effects taking into account the implementation of the mitigation measures described in this report.”

Costs to Government

Government of Canada enforcement activities include inspections to monitor the implementation of the fish habitat compensation plan, which may incur incremental costs. Specifically, there may be incremental site visits, monitoring and review costs incurred by the Department of Fisheries and Oceans, including monitoring of habitat quality, overwintering, and spawning for Dolly Varden and Coho Salmon. These incremental costs will be low given that the Department of Fisheries and Oceans is planning to conduct site visits and monitoring in the context of other authorizations under the Fisheries Act. (see footnote 16) Furthermore, these incremental monitoring activities, and associated costs, will only occur during fish habitat compensation plan implementation, and will not continue throughout the life of the TIA.

Incremental compliance promotion costs may also be incurred, but are expected to be low, given that compliance promotion activities occurred throughout the federal EA process.

Therefore, the total incremental costs to the Government, associated with the fish habitat compensation plan, will be low.

Costs to business

The Amendments will result in Seabridge incurring costs associated with the implementation of the fish habitat compensation plan. The construction and monitoring costs that are required in the plan are $4.7 million for the Treaty Creek site and $2.2 million for the Taft Creek site, for a total cost of $6.9 million. (see footnote 17)

Health impacts

The addition of fish-frequented water bodies to Schedule 2 of the MMER are not expected to result in significant adverse impacts on human health, given that the KSM Mine Project is located in an isolated area with no road access, resulting in limited hunting, fishing, trapping and recreational activities, including by Indigenous peoples. Furthermore, there are no permanent residents in the vicinity of the KSM Mine Project and no known drinking water sources will be affected by the KSM Mine Project.

The Department of Health, as the expert federal health authority for the federal EA of the KSM Mine Project, examined the potential health impacts of the mine project as a whole. These potential health impacts included potential effects on human health from the consumption of fish, wildlife, birds, plants and berries (including medicinal plants), and water containing potentially elevated concentrations of contaminants from the mine. The Federal EA Comprehensive Study Report concluded that “the Project is not likely to cause significant adverse environmental effects on human health when the implementation of mitigation measures is taken into account.” Seabridge has also committed to a human health monitoring plan and Health Canada has provided details on country foods considerations for this plan.

Society and culture impacts of the mine project

The addition of fish-frequented water bodies to Schedule 2 of the MMER will not result in significant social or cultural impacts. Design changes were undertaken for the KSM Mine Project at the request of Indigenous communities to minimize sensory disturbances in wildlife and wildlife corridors, including moving the processing plant to a remote area and building sections of the conveyor system underground. Additional design changes included the installation of gates to restrict public (e.g. hunters, trappers, and fishers) access along newly constructed access roads.

The federal EA considered relevant analysis within the provincial EA undertaken by the Government of British Columbia and concluded that “the Project is not likely to cause significant adverse environmental effects on physical and cultural heritage.” The federal EA also concluded that “based on the available information, the Project is not likely to cause significant adverse environmental effects on current use of lands and resources for traditional purposes by Indigenous peoples when implementation of the mitigation measures is taken into account.”

Table 2: Impacts statement (qualitative)

Qualitative and non-monetized impacts

A. Industry

The Amendments will allow the destruction of fish and fish habitat in portions of North Treaty Creek and South Teigen Creek to allow the construction and operation of the TIA as proposed by Seabridge. The KSM Mine Project will generate economic opportunities in the region.

Incremental costs attributable to the development and implementation of the fish habitat compensation plan will be $6.9 million in construction and monitoring costs.

B. Government

Incremental costs to the Government of Canada, associated with the fish habitat compensation plan, will be low.

C. Environment

Net gains in fish habitat are anticipated due to the development and implementation of the fish habitat compensation plan.

D. Society and
culture

The Amendments will not likely cause significant adverse environmental effects on current use of lands and resources for traditional purposes by Indigenous peoples.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the Amendments, as they will not impose new administrative requirements on business.

Small business lens

The Amendments will not trigger the small business lens as Seabridge, the owner and operator of the KSM Mine Project, is not considered a small business. (see footnote 18)

Consultation

The TIA for the KSM Mine Project will be located within the Nass Area, as defined in the Nisga’a Final Agreement (see footnote 19) and the Project is therefore subject to the Nisga’a Treaty. The process and tailings management area will also be situated within the southern boundary of the Tahltan Nation’s asserted traditional territory, and components of the project will be located in the vicinity of the asserted traditional territories of the Gitanyow, Gitxsan, and Skii km Lax Ha First Nations.

All of these First Nations have been engaged in consultations on the federal EA and in subsequent regulatory consultations. On September 4, 2013, representatives of the Gitxsan First Nation wrote a letter to the Agency expressing support for the KSM project. In a letter addressed to the former Minister of the Environment, dated September 26, 2014, the Nisga’a Nation, confirmed that it had no objection to the KSM Mine Project and agreed with the positive recommendation that the KSM Mine Project should proceed as contemplated in the Agency’s Comprehensive Study Report. The Nisga’a Nation reaffirmed its position in a letter to the Department of the Environment, dated July 28, 2016. In both letters, the Nisga’a Nation confirmed that the Nisga’a Nation and Seabridge have entered into a benefits agreement in respect of the KSM Project and that the benefits agreement, together with the mitigation measures recommended in the Agency’s Comprehensive Study Report, sufficiently and appropriately prevent or mitigate effects of the KSM Project on Nisga’a Treaty Rights, including for greater certainty the Nisga’a Treaty Rights referred to in Chapter 10 Environmental Assessment and Protection of the Nisga’a Final Agreement.

Seabridge continues the negotiation of an Impact Benefit Agreement with the Tahltan and the agreement is anticipated to be completed in 2017. Seabridge has also entered into a Sustainability Agreement with the Gitanyow Hereditary Chief Office, in which Seabridge agrees to provide funding for certain programs relating to wildlife, fish and water quality monitoring. (see footnote 20)

Consultation prior to publication of the proposed amendments in the Canada Gazette, Part I

In mid-2014, the Department of the Environment initiated planning for consultations on the proposed Amendments. On the basis of discussions with First Nations, the Department of the Environment undertook 10 local consultation sessions on the proposed Amendments with the Nisga’a Nation, Tahltan, Gitanyow, Gitxsan, Skii km Lax Ha and the public. Representatives of the Department of the Environment, the Department of Fisheries and Oceans, the Agency, and Seabridge participated in these sessions to address comments and concerns. A national consultation session was also held in Gatineau, Quebec, on September 17, 2014.

The consultation sessions provided participants with an opportunity to provide comments on the proposed Amendments and the associated fish habitat compensation plan. Participants were also invited to submit comments in writing following the consultation sessions.

A wide range of opinions and concerns were expressed during the consultation sessions. Since the TIA was considered and consulted during the EA, the vast majority of the comments received during the consultations sessions and in writing were similar to those raised during the EA. A total of three written submissions were received: one from the Tahltan Central Council, one from a member of a First Nation and one joint submission from two environmental non-governmental organizations (ENGOs).

In a letter dated September 26, 2014, the Tahltan reiterated the comments provided during the EA on the proposed processing facility and tailings management area. The Tahltan also acknowledged the commitments made by Seabridge to address a number of concerns that have been raised and expressed that they would like to be engaged in the ongoing environmental management practice for the KSM project.

The proposed Amendments are generally supported by most members of local First Nations. However, some First Nations and environmental organizations raised concerns about the Amendments. A summary of comments received during the consultations regarding the proposed amendments is provided below.

Comments on the KSM Mine Project
Comments on the proposed Amendments and the assessment of alternatives for tailings disposal
Comments on the proposed fish habitat compensation plan
Consultations on the proposed Amendments following publication in the Canada Gazette, Part I

The proposed Amendments were published in the Canada Gazette, Part I, on July 2, 2016, for a 30-day public consultation period, during which two written submissions were received. In the first submission, the Nisga’a Nation reiterated that they have no opposition to this project, but commented on the depiction of the Nisga’a treaty in the text of the RIAS. This submission highlighted text in the RIAS which required amendment. These revisions have been considered and incorporated into this RIAS.

In the second written submission, an ENGO indicated that it does not support the proposed Amendments due to concerns regarding the loss of fish habitat and that the KSM Mine Project is not in line with recent recommendations by the Government of British Columbia associated with the Mount Polley investigation. The ENGO further raised concerns regarding potential effects of mine effluent on the aquatic environment, and recommended that a decision on the regulatory amendment be delayed until Government of Canada completes its review of the Fisheries Act.

An overview of the comments in these submissions, with the Department of the Environment responses, is presented below.

Fish habitat compensation plan
Tailings disposal alternatives
Impact on aquatic environments
The MMER amendment process

Regulatory cooperation

The federal Department of the Environment and the Department of Fisheries and Oceans cooperated and collaborated in the preparation of the Amendments. The Government of British Columbia supports the Amendments, which are consistent with its policies and programs. The provincial EA was completed on July 30, 2014, including the approval of the TIA.

Rationale

Seabridge has identified fish-frequented portions of North Treaty Creek and South Teigen Creek in the area for disposal of mine tailings from the KSM Mine Project. However, the use of these water bodies for tailings disposal is only possible with their addition to Schedule 2 of the MMER.

The Amendments allow the destruction of fish-frequented portions of North Treaty Creek and South Teigen Creek, with an estimated loss of 10.6 ha of Dolly Varden habitat. Seabridge intends to implement a fish habitat compensation plan to create an estimated 18.2 ha of fish habitat for Dolly Varden and Coho Salmon in nearby Taft Creek and Treaty Creek, within the Bell-Irving watershed. A net increase of 7.6 ha in fish habitat will therefore be attributable to the Amendments. The total cost of the fish habitat compensation plan, carried by the mine operator, is estimated to be $6.9 million. (see footnote 21)

The Amendments enable Seabridge to proceed with the development of its preferred TIA (Option 1), following approval of the fish habitat compensation plan by the Minister of the Environment. The federal EA for the KSM Mine Project, including this preferred TIA and the fish habitat compensation plan, concluded that “the KSM Project is not likely to cause significant adverse environmental effects taking into account the implementation of the mitigation measures described in this report.” The KSM Mine Project is estimated to have a positive net present value of $4.5 billion (see footnote 22) and to positively contribute employment and training opportunities to local and regional communities surrounding the KSM Mine Project.

Seabridge, local Indigenous communities, local residents, environmental non-governmental organizations, the Province of British Columbia, U.S. federal and State representatives, as well as implicated federal departments and agencies, have been actively engaged on the project over many years, with targeted consultations on the Amendments held in 2014 and prepublication of the Amendments in 2016. Several comments were received, including those relating to the KSM Mine Project as a whole, the destruction of fish habitat, and the fish habitat compensation plan. Although a number of stakeholders have expressed opposition to the KSM Mine Project and to the Amendments, there is general support from local communities, the Nisga’a Lisims Government and the Province of British Columbia.

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a strategic environmental assessment was not undertaken for the proposal, as it was previously assessed in relation to a project assessed under the former Canadian Environmental Assessment Act. (see footnote 23)

Implementation, enforcement and service standards

The Amendments enable Seabridge to utilize fish-frequented water bodies for construction of the TIA and disposal of tailings from the KSM Mine Project upon their listing in Schedule 2 of the MMER.

As the MMER are made pursuant to the Fisheries Act, enforcement personnel would, when verifying compliance, act in accordance with the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (the Policy). Verification of compliance with the Regulations and the Fisheries Act will include, among other inspection activities, site visits, sample analysis, and review of fish habitat compensation plans and related reports associated with the Amendments.

If there is evidence of an alleged offence to the fisheries protection and pollution prevention provisions of the Fisheries Act and/or related regulations, enforcement personnel will decide on an appropriate enforcement action, in accordance with the following criteria, as set out in the Policy:

Given the circumstances and subject to the enforcement officer’s discretion, the following instruments are available to respond to alleged violations:

For more information on the Policy, please consult the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. (see footnote 24)

Contact

Chris Doiron
Manager
Mining Section
Mining and Processing Division
Industrial Sectors, Chemicals and Waste Directorate
Department of the Environment
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Fax: 819-420-7381
Email: ec.mmer-remm.ec@canada.ca