Order Exempting Certain Navigable Waters Located in Quebec from the Application of Section 23 of the Canadian Navigable Waters Act: SOR/2023-213

Canada Gazette, Part II, Volume 157, Number 22

Registration
SOR/2023-213 October 6, 2023

CANADIAN NAVIGABLE WATERS ACT

P.C. 2023-1019 October 6, 2023

Whereas the Minister of Transport has received an application to exempt the navigable waters listed in the schedule to the annexed Order from the application of section 23footnote a of the Canadian Navigable Waters Act footnote b;

And whereas the Governor in Council is satisfied that this exemption would be in the public interest;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, makes the annexed Order Exempting Certain Navigable Waters Located in Quebec from the Application of Section 23 of the Canadian Navigable Waters Act under subsection 24(1)footnote a of the Canadian Navigable Waters Actfootnote b.

Order Exempting Certain Navigable Waters Located in Quebec from the Application of Section 23 of the Canadian Navigable Waters Act

Exemption

Navigable waters

1 The navigable waters listed in the schedule to this Order are exempt from the application of section 23 of the Canadian Navigable Waters Act.

Coming into Force

Publication

2 This Order comes into force on the day on which it is published in the Canada Gazette, Part II.

SCHEDULE

(Section 1)

Navigable Waters

PART 1

Lakes
Item

Column 1

Name

Column 2

Approximate Location
1 Lake 1 52°0′48.389″ N, 76°9′31.116″ W
2 Lake 2 52°1′7.887″ N, 76°9′57.273″ W
3 Lake 8 52°0′7.870″ N, 76°8′49.116″ W
4 Lake 11 52°2′22.837″ N, 76°9′21.343″ W
5 Lake 12 52°2′27.181″ N, 76°10′14.411″ W
6 Lake 13 52°2′11.181″ N, 76°10′4.115″ W
7 Lake 15 52°1′28.632″ N, 76°10′46.573″ W
8 Lake 18 52°0′49.049″ N, 76°12′16.238″ W
9 Lake 19 52°0′42.308″ N, 76°11′46.619″ W

Note: The water boundary of each lake includes the mouths of all connecting waterways.

PART 2

Other Navigable Waters
Item

Column 1

Name

Column 2

Approximate Downstream Point

Column 3

Approximate Upstream Point
1 CE-A 51°59′36.103″ N, 76°12′48.336″ W 52°0′40.627″ N, 76°9′43.253″ W
2 CE-B 52°1′9.571″ N, 76°9′21.027″ W 52°1′7.969″ N, 76°9′45.108″ W
3 CE-C′ 52°1′28.492″ N, 76°11′21.667″ W 52°1′31.343″ N, 76°10′48.583″ W
4 CE-G 52°1′54.045″ N, 76°8′38.190″ W 52°1′57.255″ N, 76°8′37.565″ W
5 CE-H 52°1′59.437″ N, 76°8′20.860″ W 52°2′4.602″ N, 76°8′23.133″ W
6 CE-I 52°1′51.073″ N, 76°8′55.292″ W 52°1′51.391″ N, 76°8′56.868″ W
7 CE-J 52°1′57.562″ N, 76°8′11.468″ W 52°1′58.044″ N, 76°8′6.947″ W
8 CE-K 52°1′5.593″ N, 76°10′9.130″ W 52°1′5.150″ N, 76°10′13.428″ W
9 CE-L 52°0′55.033″ N, 76°9′16.833″ W 52°0′56.136″ N, 76°9′14.482″ W
10 CE-M 51°59′35.273″ N, 76°12′45.456″ W 52°0′36.569″ N, 76°11′50.726″ W
11 CE-N 52°0′14.386″ N, 76°14′33.932″ W 52°0′45.945″ N, 76°12′23.289″ W
12 Lake 7-CE-1 52°0′24.239″ N, 76°8′55.378″ W 52°0′22.668″ N, 76°8′54.999″ W
13 Lake 8-CE-1 52°0′6.277″ N, 76°9′1.281″ W 52°0′7.076″ N, 76°8′53.230″ W
14 Lake 11-CE-1 52°2′11.008″ N, 76°10′0.237″ W 52°2′19.031″ N, 76°9′42.186″ W
15 Lake 12-CE-1 52°2′4.920″ N, 76°10′22.041″ W 52°2′23.969″ N, 76°10′17.888″ W
16 Lake 13-CE-1 52°2′11.021″ N, 76°10′7.216″ W 52°2′4.026″ N, 76°10′12.560″ W
17 Lake 15-CE-1 52°1′27.086″ N, 76°10′52.835″ W 52°1′27.192″ N, 76°10′54.063″ W
18 Lake 15-CE-2 52°1′26.382″ N, 76°10′44.684″ W 52°1′24.766″ N, 76°10′42.762″ W
19 Lake 18-CE-1 52°0′50.776″ N, 76°12′10.098″ W 52°0′51.264″ N, 76°12′9.248″ W

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Critical Elements Lithium Corporation (the proponent) is engaged in the construction, operation and eventual decommissioning of an open pit lithium and tantalum mine in Quebec, in the James Bay region. There are 28 navigable waters located either on top of or around the perimeter of the open pit mine site that will be directly impacted. To facilitate mining operations, water will need to be pumped out of, and away from, the open pit and surrounding work site. This will result in the dewatering of a total of 28 navigable waters.

Subsection 23(1) of the Canadian Navigable Waters Act (CNWA) prohibits taking any action, such as dewatering, that lowers the water level of a navigable water or any part of a navigable water to a level that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question. Under the CNWA, dewatering that extinguishes navigation is prohibited unless the Minister of Transport receives an application for an exemption and the Governor in Council (GIC) is satisfied that it would be in the public interest to permit the dewatering that extinguishes navigation. The GIC may then, by order, exempt the dewatering that extinguishes navigation.

Through a detailed review and analysis of the proponent’s request for an exemption from the application of subsection 23(1) of the CNWA, Transport Canada (TC) is of the view that it would be in the public interest to permit the dewatering, thereby reducing water levels in the 28 navigable waters and making navigation impracticable.

First, between 2011 and 2021, local Indigenous communities that will be directly impacted were consulted on the overall project. The concerns expressed were about the project’s effects on current use of traditional lands and resources. The dewatering is relevant to traditional lands and resources use because the navigable waters can be used to navigate through the territory for beaver trapping.

However, despite the dewatering, mitigation measures relevant to navigation have been implemented to assist in safeguarding Indigenous trapping rights, such as relocation of a camp used for trapping and a beaver management plan. Furthermore, navigation is not the main means of transportation to access the territory. Access to the territory can and is being achieved by additional methods such as snowmobiles, all-terrain vehicles and/or snowshoes/foot.

Second, the anticipated creation of 580 jobs from the mining project in an area with a population of only 760 people is expected to be a significant benefit to the local economy.

Finally, the mining project itself would help facilitate obtaining the raw materials needed in the manufacture of the essential parts of zero-emission vehicles (ZEV), thereby contributing to ZEV availability to improve air quality.

Pursuant to subsection 24(1) of the CNWA, an exemption order is required to allow for dewatering of the 28 navigable waters, thereby extinguishing navigation. The foregoing considerations examined in the above-described review and analysis demonstrate that the exemption order would be in the public interest.

Background

Canadian Navigable Waters Act

Canada’s waterways support many critical functions, including the shipment of goods, transportation, and various recreational activities. Consequently, protecting the public right to navigate on Canada’s waterways is important to facilitate safe business and recreational transportation.

Navigable waters are defined in the CNWA as a “body of water … that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport … or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982 … ”. The 28 navigable waters were determined to be navigable under the CNWA because they have been used, are being used, or will be used by small craft vessels to access a camp site and where traditional Indigenous activities, including beaver trapping, occur.

The CNWA protects the public’s common law right to navigation by prohibiting the construction, placement, alteration, rebuilding, removal, or decommissioning of a “work” (such as a dam or bridge) in, on, over, under, through or across any navigable water. However, these construction activities may be permitted when done in accordance with the requirements of the CNWA.

The CNWA also prohibits, among other things, the dewatering of any navigable waters, when navigation is extinguished, unless the Minister of Transport receives a request for an exemption from the application of section 23 of the CNWA and, pursuant to subsection 24(1), the GIC is satisfied that an exemption from the application of section 23 to permit the dewatering of any rivers, streams, or waters, in whole or in part, would be in the public interest. The GIC may then exempt, by order, the dewatering that extinguishes navigation.

The proponent of a proposed prohibited activity is required under the CNWA to apply to the Minister of Transport for, and obtain, a GIC exemption before engaging in that prohibited activity, such as dewatering that extinguishes navigation.

Transport Canada — Navigation Protection Program

TC’s Navigation Protection Program (NPP) is responsible for keeping navigable waters open for transport and recreation through administering and enforcing the CNWA and its regulations. Under the CNWA, the TC NPP approves and sets terms and conditions for proposed “works” in navigable waters.

A “work” includes any structure, device, or thing — temporary or permanent — made by humans that is in, on, over, under, through or across any navigable waters. They can be small works, like docks, or large works, like dams.

In practical terms, the TC NPP is responsible for the intake of an application for an exemption that would permit dewatering a navigable water. After receiving this application for an exemption, the TC NPP assesses the navigation impacts that could result from the proposed prohibited activity, such as dewatering that extinguishes navigation.

Rose Lithium-Tantalum Mining Project

The proponent is engaged in the construction, operation and eventual decommissioning of an open-pit lithium and tantalum mine in a remote area 38 kilometres north of the village of the Cree Nation of Nemaska (population: 760), in Quebec, near James Bay. It would be located approximately 240 kilometres northwest of Chibougamau, Quebec, and 300 kilometres northeast of Matagami, Quebec. Lithium and tantalum are raw materials used in the production of zero-emission vehicles, such as electric or hybrid cars. The mining project is anticipated to create 580 jobs over a 21-year period.

There are 28 navigable waters that will be directly impacted. To facilitate mining operations, water will need to be pumped out of, and away from, the open pit and surrounding work site. This will result in the dewatering of a total of 28 navigable waters, extinguishing navigation.

A full environmental assessment (PDF) was conducted in accordance with the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and an environmental impact statement for technical and public review was prepared.

On August 10, 2021, the Minister of the Environment determined that the proposed mining project is not likely to cause significant adverse environmental effects, subject to conditions with which the proponent must comply. The Minister of the Environment’s decision statement established 221 legally binding conditions with which the proponent must comply throughout the life of the project. Of the 221 conditions, two mitigation measures were to be imposed relevant to navigation: a beaver management plan and relocation of a camp used for trapping.

Objective

The purpose of this initiative is to exempt, by order, the 28 navigable waters from the application of subsection 23(1) of the CNWA. Once the exemption order is in force, the proponent will have authorization to dewater the 28 navigable waters identified in the exemption order, thereby enabling and facilitating the proponent’s mining operations.

Description

An order in council, pursuant to subsection 24(1) of the CNWA, exempts the 28 navigable waters, located in Quebec, from the application of subsection 23(1) of the CNWA. As a result, this exemption order will permit dewatering to reduce water levels in the 28 navigable waters to facilitate mining operations. The dewatering will result in making navigation impracticable in the 28 bodies of water.

A map identifying the waterbodies is publicly available on TC’s NPP external submission website, with general information about the mining project.

Regulatory development

Consultation

Indigenous and public consultations were carried out; however, Indigenous communities were the primary impacted communities and were the primary focus of consultations. The Cree Nation in the James Bay region is directly impacted by the exemption order. The Cree Nation has exclusive trapping rights of fur-bearing animals, and exclusive hunting rights for certain species of animals.

Several consultations with the Cree Nation occurred between 2011 and 2021, including (1) Project consultations by the proponent; (2) TC direct consultation with the Cree Nation; and (3) Indigenous/public consultations through the federal environmental assessment process.

During the environmental assessment process, the concerns expressed were related mainly to the cumulative effects of the project on the current land and resources use for traditional purposes. The proposed dewatering was relevant to the use of lands and resources for traditional purposes because the navigable waters can be used to navigate through the territory for beaver trapping. However, mitigation measures, such as relocating a camp used for trapping and a beaver management plan, will assist in safeguarding Indigenous trapping rights.

Since Indigenous communities were the primary impacted communities and were the primary focus of consultations, consultation details relevant to the exemption order are outlined below under the “Modern treaty obligations and Indigenous engagement and consultation” section.

During the environmental assessment, the Impact Assessment Agency of Canada (IAAC) took into account the advice of government experts. Through the environmental assessment process, TC collaborated with IAAC, Environment and Climate Change Canada (ECCC), Fisheries and Oceans Canada, Health Canada, Natural Resources Canada, the Cree Board of Health and Social Services of James Bay, and the ministère des Forêts, de la Faune et des Parcs du Québec through providing advice in evaluating public interest considerations and by providing input on mitigation measures generated. This advice and collaboration with other government experts were taken into account and used to establish the 221 legally binding conditions that will ensure that the project will unlikely cause significant adverse environmental effects. During this process, no other government departments expressed concerns with respect to this exemption order.

Exemption from prepublication in the Canada Gazette, Part I

Under the exemption order, a mining project proponent will be permitted to dewater 28 navigable waters in the James Bay region of Quebec to extract lithium and tantalum, which are raw materials used in the production of zero-emission vehicles, such as electric or hybrid cars.

Prepublication is intended to provide a final opportunity to obtain comments on a proposal, determine whether any stakeholders were missed in the consultative process, and examine the extent to which the proposal is in keeping with the original consultations. Local communities are those most directly impacted by mining projects and, as a result, those most in need of being engaged through consultations.

Between 2011 and 2021, local Indigenous communities, being those directly impacted, have been consulted by the project proponent, the Impact Assessment Agency of Canada (including through a panel comprised of members selected by the Indigenous communities impacted), and by TC, on the overall proposed project, including on the dewatering that is the subject of the exemption order.

In addition, measures that mitigate navigation impacts already exist (e.g. alternative means of transportation) or will be implemented, including those that will maintain traditional Indigenous activities in the local area.

Finally, the regulatory text that would have been published in the Canada Gazette, Part I, would have consisted only of the list of waterbodies that would be exempted. It is assumed that such a list of waterbodies would have been unlikely to provide any details that could be misinterpreted or that could present implementation challenges for stakeholders.

Considering all of the above, the Order was not prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

The project site is located on land that is the subject of the James Bay and Northern Quebec Agreement (JBNQA). Under the JBNQA, mining projects are automatically subject to an assessment and review process to ensure the protection of the Cree, their hunting, fishing and trapping rights, and the wildlife and environmental resources on which they depend.

As part of the Minister of the Environment’s approval, for the purposes of Indigenous activities related to fishing, the proponent must mitigate the effect on the fish habitat and on Indigenous communities by working with the Indigenous communities to recover the fish, offering them to the Indigenous communities, and relocating any fish not used.

Furthermore, as part of the Minister of the Environment’s approval, the proponent will be required to develop and implement an offsetting plan related to the alteration, destruction or disturbance of fish habitat, and the death of fish associated with the mining project’s implementation. As a result, no significant adverse effects on fish habitat are expected.

The navigable waters located at the project site, which will be dewatered in accordance with the exemption order, are used for navigation occasionally and for traditional Indigenous animal trapping activities, specifically beaver trapping.

Through consultations, it was determined that beaver dams and seasonal climatic variations affect the navigability of several watercourses. As a result, the watercourses can only be used occasionally for travel by boat. More importantly, access to the territory, where traditional activities are conducted, also occurs by snowmobile, all-terrain vehicle, or snowshoes/foot.

Through the environmental assessment process, two mitigation measures were imposed, relevant to navigation and Indigenous activities, such as beaver trapping:

Instrument choice

Two different instrument choices were relevant in these circumstances: (1) maintain the CNWA’s legislative prohibition against dewatering to a point that extinguishes navigation; or (2) provide an exemption by order in council to the CNWA’s prohibition against dewatering to a point when navigation is extinguished. These two different instrument choices correspond with two different mining methods considered for the project: (1) underground extraction; or (2) open-pit extraction.

Underground extraction

If the CNWA’s legislative prohibition against dewatering when navigation is extinguished were maintained, then occasional use for navigation could continue but only the underground extraction method would be available. However, the underground extraction method was not considered economically viable by the proponent due to the prohibitive operating costs and the considerable volume of resources that would remain in the form of surface pillars. Consequently, if the prohibition were maintained, and only the underground extraction method was available, then the mining project would not proceed.

Assuming the mining project did not proceed, the minerals needed to manufacture essential ZEV parts would not be extracted. ZEVs can contribute to improving air quality. Consequently, without the mining project, fewer ZEVs would be available, thereby undermining improvements that could be made to air quality.

In addition, assuming the mining project did not proceed, then jobs would not be created for mine construction and operations.

Open-pit extraction

Under the exemption order, an exemption to the CNWA prohibition against dewatering will be created. As a result of the exemption order, dewatering the waterbodies located in the pit’s footprint and consequent dewatering impacts on the neighbouring waterbodies (28 in total) can occur, extinguishing navigation. Consequently, the open-pit extraction method can proceed.

Using the open-pit extraction method to proceed with the mining project, the raw materials needed to manufacture essential ZEV parts will be obtained, thereby contributing to ZEV availability to improve air quality.

Moreover, the anticipated creation of 580 jobs in a remote area with a population of only 760 people is expected to be a significant benefit to the local economy.

Under the CNWA, the only way to exempt the prohibition against dewatering, which will result in navigation being extinguished, is an exemption order. Although navigation will be extinguished, access to the territory is primarily achieved by all-terrain vehicle, snowmobile, and/or snowshoes/foot, not by water vessels. Consequently, the dewatering is not expected to significantly disrupt access to the territory.

Given that the mining operation would likely not proceed in the absence of the exemption order, and that the impacts to navigation of dewatering the 28 waterbodies are expected to be minimal, it has been determined that the most appropriate mechanism to support the mining operation is to provide the exemption.

Regulatory analysis

The exemption order will permit dewatering, extinguishing navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question, to occur without the proponent contravening the prohibition against dewatering under the CNWA. The costs and benefits identified below only pertain to the exemption order and related dewatering of the 28 navigable waters and do not consider impacts associated with the mine as they are out of the scope of the exemption order.footnote 1

Analytical framework

Benefits and costs associated with the exemption order are assessed by comparing the baseline scenario against the regulatory scenario. The baseline scenario depicts what is likely to happen in the future if the exemption order were not made. The regulatory scenario provides information on the expected outcomes of the exemption order.

In August 2021, the Minister of the Environment approved the mining project. This approval was contingent on the proponent meeting mitigation measures outlined in the environmental assessment report (PDF) that was developed by the Impact Assessment Agency of Canada for the project. The mitigation measures are part of the conditions for project approval — not this exemption order — and will offset the impacts of dewatering on the environment and Indigenous communities in the region. As a result, the costs associated with the exemption order and the related dewatering are expected to be minimal and have been presented qualitatively.

Following TBS’s Policy on Cost-Benefit Analysis, the scope of this analysis is at the societal level, analyzing costs and benefits attributed to Canadians.

Affected stakeholders

The Cree communities in the James Bay Region, represented by the Cree Nation Government, are those directly impacted by the exemption order. The proponent is required to implement several mitigation measures to offset the impacts of dewatering. As a result, the impacts on the affected Indigenous communities in the region are expected to be minimal.

The proponent is the other impacted stakeholder of the exemption order. The proponent will directly benefit from the exemption order as they will be able to move the project forward in an economically feasible way.

Baseline and regulatory scenarios

Under the baseline scenario, the exemption order is not in place. The mine would not be developed as the only other mining method would be underground extraction, which was not considered economically feasible for the proponent due to the prohibitive operating costs associated with it and the considerable volume of resources to be left in place in the form of surface pillars.

The baseline scenario also includes the approval of the project by the Minister of the Environment as well as the mitigation measures that must be met by the proponent to reduce the impacts on the environment and Indigenous communities. However, mitigation strategies that have not already been implemented or committed to through financial contracts would not proceed if the exemption order was not in place, as the project would not proceed without it.

Under the regulatory scenario, the exemption order is made. As a result, the mining project would be able to advance, and there would be impacts from dewatering on the environment and Indigenous communities.

Under the regulatory scenario, the project remains approved by the Minister of the Environment, and the mitigation measures that must be met by the proponent to reduce the impacts on the environment and Indigenous communities continue to apply, and work to implement them continues by the proponent.

Costs

The CNWA requires that an application for exemption be submitted by the proponent. However, these application costs are excluded since they were incurred prior to registration of the Order and are considered sunk costs.

Dewatering will result in impacts on the environment and Indigenous communities. Specifically, it will impact a trapline used by the Indigenous communities in the region for beaver trapping, fish habitat in two of the lakes to be dewatered, navigation, and recreation. To offset the impacts of the dewatering, and as conditions of the Minister of the Environment’s approval for the project, the proponent has agreed to several mitigation measures. The costs to the proponent for these mitigation measures are not included in this analysis as they are not considered direct costs of the exemption order. Those costs reflect the remedial actions which were determined in consultation with those affected by the negative consequences of dewatering and are part of the existing conditions of the mining project.footnote 2

Dewatering will affect a trapline used by the Indigenous communities. The affected trapline mainly involves trapping beaver, and the Indigenous community members that use this trapline have a camp that will be impacted by the dewatering. As part of the Minister of the Environment’s approval and to mitigate the effects on the Indigenous communities, the proponent has confirmed that the camp has already been moved to an area that is accessible and a beaver management plan has been developed and implemented. As a result, no significant adverse effects on Indigenous communities are expected.

In addition, dewatering of two lakes will affect the fish habitat for these waterbodies. As part of the Minister of the Environment’s approval, and to mitigate the effect on the fish habitat and on Indigenous communities, the proponent must work with the Indigenous communities to recover the fish, offer them to the Indigenous communities, and relocate any fish not used by the Indigenous communities. The second lake has a very low abundance of fish and mitigation of the first lake is considered sufficient to minimize impacts to the fish habitat in the area. Furthermore, the proponent will be required to develop and implement an offsetting plan related to the alteration, destruction or disturbance of fish habitat, and the death of fish associated with the mining project’s implementation. As a result, no significant adverse effects on fish habitat are expected.

While the 28 navigable waters are occasionally used for navigational purposes, they are not the main source of transportation through or around the territory; therefore, dewatering is expected to have only a minimal impact. Access to the area can be achieved, and is being achieved, by other methods such as snowmobiles, all-terrain vehicles, and snowshoes/foot. Furthermore, the Government of Quebec works with the Canoe Kayak Québec to ensure Quebec’s waterbodies are accessible to paddlers for recreational purposes. However, the 28 navigable waters that will be affected by dewatering are not widely used for recreational purposes and are not classified as canoe routes by this organization. As a result, no significant adverse effects on navigation or recreation are expected.

Benefits

The exemption order will allow the proponent to advance the mining project in an economically feasible manner. While the exemption order will not directly result in economic benefits to the local economy from the mining project, it will support the implementation of the project. For additional information on the anticipated economic benefits of the project, please refer to the “Rationale” section below.

Small business lens

Analysis under the small business lens concluded that no small businesses would be impacted.

One-for-one rule

The one-for-one rule does not apply, as there would be no incremental change in the administrative burden on business as a result of the exemption order.

Regulatory cooperation and alignment

The exemption order is not related to any commitment under a formal regulatory cooperation forum nor is it intended to address non-alignment with other jurisdictions. The exemption order is confined to a geographic location within Canada, and specifically confined to the 28 navigable waters within this location.

The exemption order is not a rule of general application. It permits the proponent to dewater the 28 navigable waters, extinguishing navigation.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

A full environmental assessment was conducted in accordance with CEAA 2012 and an environmental impact statement for technical and public review was prepared.

Following the assessment, it was concluded that, taking into account the implementation of mitigation measures, the project is unlikely to cause significant adverse environmental effects for the purposes of the CEAA 2012.

Gender-based analysis plus (GBA+)

The Cree communities in the James Bay Region are those potentially subject to negative impacts of the exemption order in that the navigable waters located at the proposed project site are occasionally used for traditional Indigenous activities, such as beaver trapping. However, measures that mitigate navigation being extinguished, a beaver management plan and the relocation of a camp used in trapping have already been implemented. Furthermore, the mining project, not the exemption order itself, is anticipated to create 580 jobs over a 21-year period. Construction industry work experience is transferable to the mining industry.

Gender

In Canada’s construction industry, there is a larger percentage of men than women. It is anticipated that the mining project may benefit men more than women in terms of job opportunities.

Indigenous community

The Cree Nation unemployment rate is generally higher than the area’s general population. Several Cree Nations near the mine site may have a workforce with construction industry experience who could be hired for the mining project. In addition, the proponent is hoping to generate interest among Cree Nations’ young people to take up employment in the mining sector through job matching, information and job preparation workshops, and working with local skill development and training centres. Therefore, it is anticipated that the mining project may benefit Indigenous construction workers and Indigenous youth that live within the vicinity in terms of job opportunities.

Rationale

As a result of a detailed review and analysis of the proponent’s request for an exemption from the application of section 23 of the CNWA of any rivers, streams, or waters, in whole or in part, TC is of the view to permit dewatering on the basis that it would be in the public interest to do so, thereby reducing water levels in the 28 navigable waters and making navigation impracticable.

Navigation has been confined to small craft vessels only, such as canoes. In addition, any past or present navigation that has occurred, or does occur, is on an occasional basis only as a result of beaver dams and seasonal climatic variations.

More importantly, navigation is not the main means of transportation used to move within this area because access to the area can be achieved, and is being achieved, by additional methods such as snowmobiles, all-terrain vehicles, or snowshoes/foot.

Moreover, no navigable waters at the mine site are classified as a canoe route by Canoe Kayak Québec, an organization recognized by the Government of Quebec, which works to make Quebec’s waterbodies accessible to paddlers and preserve them in their natural state. Consequently, this demonstrates that the 28 navigable waters are not used widely for recreational purposes.

The mining project will likely be a benefit to the local economy. It is anticipated to create 580 jobs over a 21-year period.

Furthermore, this exemption order will help facilitate the mining project in obtaining the raw materials needed in the manufacture of the essential parts of ZEVs, thereby contributing to ZEV availability to improve air quality.

In addition, the mitigation measures of the beaver management plan and camp relocation that were generated through the environmental assessment have been implemented. These mitigation measures informed the recommendation that the dewatering of the 28 navigable waters would be acceptable.

Implementation, compliance and enforcement, and service standards

The exemption order declares that the 28 navigable waters located in Quebec, near the James Bay area, are exempt from the prohibition against dewatering that extinguishes navigation, under subsection 23(1) of the CNWA. The exemption order will come into force upon publication in the Canada Gazette. Following publication, the proponent and the Cree Nation Government will be informed of the decision through written correspondence. Dewatering is permitted to proceed immediately once the exemption order is in force.

Unless the Order is repealed, the exemption order remains in force.

Once the mining project is completed, the proponent intends to recover the mine area by flooding and securing the open pit’s perimeter. Only two of the 28 waterbodies are located in the proposed open pit’s footprint. Consequently, the navigability effects on the waterbodies outside of the secured perimeter may be reversible.

In addition, the bed and banks of aquatic environments affected by the mine are intended to be restored to their original state. Access to the territory would be partially restored once the mine is decommissioned, since the secured area around the open pit is only a small portion of the territory that would remain inaccessible. As a result, wildlife is anticipated to return to its current level of abundance.

The Cree Nation in the James Bay region are those directly impacted by the exemption order. Existing or implemented mitigation measures relevant to navigation to address dewatering impacts will facilitate Cree community member Indigenous practices in the territory adjacent to the mine. Consequently, Cree community members will be able to identify any adverse impacts that arise, if actions occur that are beyond the scope of what the exemption order allows.

The Cree communities in the James Bay region are represented by the Cree Nation Government. During consultations on the exemption order, TC established contact with the Cree Nation Government. TC intends that this relationship with the Cree Nation Government will function as a mechanism to conduct compliance verification of any adverse impacts that may be beyond the scope of the exemption order.

If there is evidence of an alleged CNWA contravention, enforcement personnel from TC would determine an appropriate enforcement action. Depending upon the circumstances and subject to the exercise of enforcement and prosecutorial discretion, the following instruments are available to respond to alleged contraventions under the CNWA:

Contact

Joanne Weiss Reid
Director
Operations and Regulatory Development
Navigation Protection Program
Transport Canada
330 Sparks Street, Tower C
Ottawa, Ontario
K1A 0N5
Email: joanne.weissreid@tc.gc.ca