Vol. 151, No. 26 — December 27, 2017

Registration

SOR/2017-272 December 8, 2017

FISHERIES ACT

P.C. 2017-1518 December 8, 2017

Her 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

37

A portion of an unnamed stream and its unnamed tributaries located approximately 25 km northwest of the town of Amos, Quebec

A portion of an unnamed stream and its unnamed tributaries located approximately 25 km northwest of the town of Amos, Quebec. More precisely, the 4.6 km portion of the stream extending from the point located at 48°40′44.00″ north latitude and 78°29′12.68″ west longitude to the point located at 48°40′7.19″ north latitude and 78°28′1.52″ west longitude and covering an area of 3.4 ha.

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.)

Issues

RNC Minerals (see footnote 2) (the proponent) proposes to construct and operate the Dumont mine project, an open-pit nickel mine located 25 km northwest of Amos, Quebec. The proponent expects to extract ore over a period of 21 years, to process the higher-grade ore and, during this time, to temporarily stockpile the low-grade ore.

The proponent proposes to store the low-grade ore in a water body frequented by fish. However, section 36 of the Fisheries Act (FA) prohibits the deposit of deleterious substances in waters frequented by fish unless authorized by regulations under the FA or other federal legislation. The Metal Mining Effluent Regulations (MMER), made pursuant to subsection 36(5) of the FA, include provisions to allow for the use of water bodies frequented by fish for the disposal of mine waste. The Amendment to the MMER will add a water body to Schedule 2 of the MMER, designating it as a tailings impoundment area, and therefore allowing the proponent to store low-grade ore, as proposed.

Background

Metal Mining Effluent Regulations (MMER)

The MMER, which came into force on December 6, 2002, prescribe the maximum authorized limits for certain deleterious substances in mine effluent, listed in Schedule 4 (e.g. arsenic, copper, cyanide, lead, nickel, zinc, radium-226 and total suspended solids). The Regulations also specify the allowable acidity or alkalinity (pH) of mine effluent, and require that mine effluents not be acutely lethal to fish. (see footnote 3) The MMER further require that mine owners or operators sample and monitor effluents to ensure compliance with the authorized limits and to determine whether there are any impacts on fish, fish habitat and fisheries resources. The Department of the Environment publishes annual performance summaries of metal mines with respect to selected standards prescribed by the MMER.

The use of a water body frequented by fish for mine waste disposal can only be authorized through an amendment to the MMER, in which case the water body would be listed in Schedule 2 of the Regulations. As of August 2017, 33 water bodies were listed in Schedule 2.

When a fish-frequented waterbody is added to Schedule 2 of the MMER, section 27.1 of the Regulations requires the implementation of a fish habitat compensation plan to offset the loss of fish habitat that occurs as a result of the use of the fish-frequented water for 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 the elements of the fish habitat compensation plan. The proponent must demonstrate that the disposal of mine waste (including effluents) in these water bodies is the best approach from an environmental, technical and socioeconomic perspective.

The Dumont mine project

The Dumont mine project is located approximately 25 km northwest of the municipality of Amos, Quebec. The mine project involves the development of the mine and local infrastructure, such as the open pit, ore processing plant, mine waste storage areas, a rail link and other related facilities. The mine has an estimated life of 33 years and will process between 52 500 and 105 000 tonnes of ore per day. The project also includes various related activities, such as the construction of access roads, an 8 km railroad link and diversion of tributaries of the Villemontel River.

With an estimated construction cost of $1.8 billion, the project will be one of the largest capital investments in Abitibi-Témiscamingue. It will require the hiring of approximately 1 000 workers for the mine complex construction phase and between 600 and 800 workers for the first 20 years of operation.

Mine waste management for the Dumont mine project

The proponent plans to temporarily stockpile a total of 606 million tonnes (Mt) of low-grade ore over the life of the mine. Of that amount, close to 103 Mt of higher-grade ore will be used over the first 20 years of this project, while the pit is still being mined. The remaining 503 Mt will be recovered after the closure of the pit, thereby extending the life of the project to a total of 33 years.

The Dumont mine project will include two overburden stockpiles with a capacity of 243 Mt, a tailings storage facility with a capacity of 630 Mt, two waste rock piles with a capacity of 1 073 Mt and two low-grade ore stockpiles with a capacity of 510 Mt. The storage of the low-grade ore will destroy a water body; specifically the upstream section of the western branch of an unnamed stream. The storage of the low-grade ore will require that this water body be added to Schedule 2 of the MMER.

A total area of 3.4 hectares of fish habitat will be destroyed by the storage of the low-grade ore. To offset this loss of fish habitat, the proponent will be required to implement a fish habitat compensation plan pursuant to the MMER.

Environmental assessment of the Dumont mine project

A comprehensive study level federal environmental assessment of the project was conducted under the Canadian Environmental Assessment Act (see footnote 4) (the former Act).On July 29, 2015, the former Minister of the Environment announced that the Dumont mine project is not likely to cause significant adverse environmental effects, taking into account the mitigation measures described in the comprehensive study report.

The proponent has agreed to implement the mitigation measures to reduce the project’s potential environmental effects. A follow-up program is required to verify the accuracy of the environmental assessment and to determine the effectiveness of a number of the proposed mitigation measures. Fisheries and Oceans Canada and Natural Resources Canada, as the responsible authorities for the project, will be responsible for ensuring the development and implementation of the follow-up program.

The project was also subject to an environmental assessment by the province under Chapter I of the Quebec Environment Quality Act, and an order respecting the issuance of a certificate of authorization to the Dumont Mine was published on June 25, 2015.

Objectives

The objective of the Regulations Amending the Metal Mining Effluent Regulations is to enable the storage of low-grade ore in a water body frequented by fish that is part of the Dumont mine project.

Description

The amendments

The amendments add a water body to Schedule 2 of the MMER (see Figure 1), specifically the upstream section of the western branch of an unnamed stream located approximately 25 km northwest of the municipality of Amos, Quebec, in the Kinojévis River watershed.

This water body is composed of a portion of an unnamed creek and the intermittent streams that flow into the creek. The total length of the water body is 9 km. The portion of encroachment of the infrastructure on fish habitat corresponding to the low-grade ore storage is approximately 3.4 hectares.

RNC Minerals (and any future owner or operator) will be required, under section 27.1 of the MMER, to implement a fish habitat compensation plan to offset the loss of fish habitat that will occur as a result of the use of the water body for the storage of tailings. In addition, the proponent will have to submit an irrevocable letter of credit ensuring that funds are in place should the owner or operator fail to address all the elements of the fish habitat compensation plan.

Figure 1. Location of the water body listed under Schedule 2 of the MMER

Detailed information can be found in the surrounding text.

Fish habitat compensation plan

The fish habitat compensation plan was reviewed and accepted by the Department of Fisheries and Oceans. The measures that will be implemented by the proponent to offset the loss of fish habitat caused by the storage of low-grade ore consists of regulating the water level of Dasserat Lake, located within the municipality of Rouyn-Noranda in Abitibi-Témiscamingue, by reconstructing an aging dam at its outlet. The implementation of the plan will result in a fish habitat gain of 29.9 hectares.

The proponent will implement a follow-up plan for the effectiveness of the compensation plan. The follow-up is based on measuring the water level of Berthemet, Desvaux (see footnote 5) and Dasserat lakes after the construction of the new dam.

The “One-for-One” Rule

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

Small business lens (see footnote 6)

The amendments do not trigger the small business lens, as RNC Minerals, the owner and operator of the Dumont mine project is not considered a small business.

Consultation

The Department of the Environment communicated with the Abitibiwinni First Nation on several occasions to invite its members to participate in the consultation process with respect to the proposed amendments. However, the First Nation did not respond to these invitations or provide comments.

The Department of the Environment held public consultations on the proposed amendments to the MMER associated with the Dumont mine project. Two public consultations were held on January 24 and 25, 2017, in Launay and Amos, respectively, in which the Abitibiwinni First Nation and the general public were invited. The Department of the Environment also tried to communicate with the Abitibiwinni First Nation to hold consultations in Pikogan, but it did not respond to the Department’s various communiqués and invitations.

During the consultation sessions in Launay and Amos, representatives from the Department of the Environment, the Department of Fisheries and Oceans, and the Dumont mine were present to explain the regulatory amendment process associated with the MMER, the fish habitat compensation plan and the alternatives assessment for the project, and to answer questions from the public. Residents from the municipalities of Launay and Amos, municipal representatives and environmental non-governmental organizations (ENGOs) were present at these consultation sessions. No major issues of concern were raised during the sessions regarding the proposed amendments.

The Department of the Environment also held a teleconference on February 14, 2017, to which representatives of ENGOs, Indigenous organizations, the Abitibiwinni First Nation, industry and the federal and provincial governments were invited. A national Indigenous organization and a representative of the mining industry took part in the teleconference. There were no questions or major concerns raised during the teleconference. The Abitibiwinni First Nation did not participate in the teleconference.

Comments communicated in writing

The consultation sessions were followed by a 30-day public consultation period to allow the public to submit comments regarding the proposed amendments, the alternatives assessment report and the fish habitat compensation plan.

Three written submissions were presented by environmental non-governmental organizations and a local resident. The comments received and the Department of the Environment’s responses are summarized below.

Comment

An environmental organization indicated that the priority in terms of compensation projects to offset the loss of natural habitats should be on restoring degraded natural habitats or protecting natural habitats of interest rather than maintaining and rebuilding artificial infrastructure.

Response

The proponent took the necessary steps to determine whether compensation projects could be carried out near the mine project site.

Of all the proposals received, the proponent selected the following six that were presented in the preliminary compensation program of the 2013 environmental and social impact assessment (ESIA) of the project:

The Department of Fisheries and Oceans then determined that only two of the six proposals had actual compensation potential, namely the restoration of a lake sturgeon spawning ground in the Harricana River (Amos) and the rehabilitation of a culvert on a tributary of the Octave River (Amos). The proponent ultimately settled on a new option consisting in the rehabilitation of the Dasserat dam, as it provided a good opportunity to offset all fish habitat losses that would be caused by the project.

The rehabilitation of the Dasserat dam will allow anticipated gains of approximately 30 hectares of fish habitat that can currently be considered to be degraded natural environments because of the poor state of the dam. It is important to mention that as a result of the water level fluctuations caused by this aging dam, the riparian environments are submerged for only a short period, namely during the spring snowmelt. The residence time of Dasserat Lake is therefore low and variable and would be improved by the reconstruction of the dam, which would benefit several species of valued fish such as walleye, northern pike, largemouth bass and whitefish.

Lastly, the Department of Fisheries and Oceans has determined that the compensation project at Dasserat Lake meets the four guiding principles of its Fisheries Productivity Investment Policy.

Comment

The same organization made recommendations regarding follow-up of fish habitat gains and of the stream at the outlet, i.e. the Kanasuta River, specifically the verified or potential spawning grounds, in order to determine whether the changes in flow affect these sites. The organization also recommended that follow-up be spread over a longer period than what is proposed in the compensation plan, namely in years 1 and 3.

Response

The Department of Fisheries and Oceans is of the view that the follow-up of the following three elements in years 1 and 3 is sufficient to determine the impact of the compensation gain since the latter is based on increasing and stabilizing the residence time of Dasserat Lake: (1) physical stability of the new dam and shoreline; (2) maintenance of a minimum surface water elevation of 277.4 m; and (3) measurements of the water level of Berthemet, Desvaux and Dasserat lakes. Failure to comply with these elements will require corrective measures. The Department of Fisheries and Oceans confirmed that these habitats are frequented by fish, but in a suboptimal manner due to the poor condition of the dam. The Department of Fisheries and Oceans recommended follow-up of the physical parameters over a two-year period only.

With respect to the Kanasuta River, building a dam will only affect the volume of water held back upstream. Although there will be short-term changes in flow during the work, no changes in the hydrological conditions downstream of the new dam should occur. Given that the work is scheduled to take place during the summer, the spawning period of the species present (spring and fall) will be avoided. The Department of Fisheries and Oceans therefore does not expect serious harm to fish habitat downstream of the new dam. Furthermore, the design of the dam will provide a barrier to the upstream migration of fish. This policy of the Quebec Department of Forests, Wildlife and Parks is driven by the presence of brown bullhead downstream of the dam, a species that is unwanted in Dasserat Lake.

Comment

Another environmental non-governmental organization submitted comments focussed on the alternatives assessment and the impacts of the storage of low-grade ore on groundwater.

The organization highlighted the importance placed by the proponent on eskers (see footnote 7) and groundwater in the low-grade ore storage alternatives assessment and indicated that the site chosen is the most appropriate on the basis of the multicriteria assessment performed, specifically in terms of groundwater recharge areas affected. This organization also indicated that the methodology used to select the location of the low-grade ore stockpile site is adequate and that it accurately reflects the local economic, environmental and social issues.

Comment

A local resident expressed support for both the assessment of alternatives analysis, and the fish habitat compensation plan. However, the resident also raised concerns that mining activities near lac à la Savane could contaminate a creek that flows through his wood lots.

Response

The proponent indicated that the creek in question is not located in the same watershed as lac à la Savane. Additionally, the proponent plans to construct collection ditches around the waste rock, low-grade ore, overburden stockpiles and mine tailings storage facility to capture and re-use the drainage water. Furthermore, Surveys in lac à la Savane show that the bottom is composed of a thick layer of clay that limits hydraulic connectivity to groundwater, thus reducing the risk of contamination, as well as the effect of the drawdown of the water table that may be caused by the pit. The proponent also committed to monitor the water level of lac à la Savane during operations.

The Abitibiwinni First Nation did not submit comments.

On May 2, 2017, RNC Minerals and the Abitibiwinni First Nation announced the signing of an Impact and Benefit Agreement (IBA) for the Dumont nickel project. The IBA provides for significant participation by the Abitibiwinni First Nation in the Dumont project, through training, employment, business opportunities and co-operation for environmental protection. The parties to the IBA are the Abitibiwinni First Nation and the newly established RNC-Waterton nickel joint venture. (see footnote 8)

Rationale

Regulatory and non-regulatory options for tailings disposal

Non-regulatory options include the disposal of tailings in a manner that would not directly impact waters frequented by fish or land-based alternatives. Regulatory options correspond to those that would result in the destruction of waters frequented by fish.

The proponent prepared an alternatives assessment to determine the best option for the storage of the low-grade ore, taking into account the environmental, technical and socio-economic impacts. The report, titled Évaluation des solutions de rechange pour l’entreposage de minerai de basse teneur – Projet Dumont, Amos, Québec, Canada – Septembre 2015, was made public in January 2017 as part of the public consultations on the proposed amendments. A summary of the report was also prepared by the proponent and made public in January 2017.

The basic criteria chosen for the Dumont project for selecting the best site for the storage of the low-grade ore are as follows:

(1) Exclusion based on distance from the extraction and processing operations

A maximum distance of 10 km from the exit of the pit was set as the maximum distance. This maximum distance takes into account economic, environmental, social and socio-economic factors.

(2) Exclusion based on the presence of potential infrastructure

Within the 10 km zone, the locations of current or future infrastructure associated with the mine were eliminated from the areas under study.

(3) Exclusion based on the non-availability of lands

All options are located outside the permanent agricultural area in which no low-grade ore storage activities would be possible without previously obtaining a change in the agricultural zoning by the Commission de protection du territoire agricole du Québec (CPTAQ).

Given these considerations, a total of nine potential sites were identified within a 10 km radius of the pit, including two lands, or non-regulatory options, i.e. options that appeared not to affect water bodies potentially frequented by fish (options B and H). In this step, the proponent integrated the concerns raised by the Dumont project stakeholders identified during the public consultation process for the technical studies and environmental assessment of the project.

A summary description of the locations of the various options selected is presented in the table below.

Alternatives

Approximate location

A

Site located approximately 6 km northwest of the pit

B

Site to the west of the pit, on the Launay esker. Land-based option located slightly more than 5 km from the pit, but separated from it by the tailings storage facility

C

Site located 3.6 km from the pit between the tailings storage facility and the town of Launay

D

Site located southwest of the pit, south of Route 111 and 3.7 km from the pit

E

Site located north of the pit within a radius of 5 km

F

Site located south of the pit and Route 111, nearly 2.6 km from the pit

G

Site located east of the pit and waste rock and overburden piles

H

Site located east of the pit on the Saint-Mathieu-Berry esker approximately 6 km from the pit (land-based option)

I

Site proposed in the feasibility study, located directly north of the pit near the primary crusher

The nine possible sites were analyzed to determine whether they had unsuitable conditions or posed obstacles that precluded their use for low-grade ore storage. Such obstacles could include:

At the outcome of this analysis, two sites (options E and I) were preselected as they did not violate any federal, provincial or municipal regulations, did not impact valued social or environmental components, such as the region’s eskers, and had the least economic impact. These sites underwent a detailed characterization based on environmental, technical and socio-economic factors. Following these analyses, option I was identified as the preferred option for the storage of the low-grade ore. Among other things, this characterization concluded that the total footprint of infrastructure and the affected area of wetlands and potential habitat of designated species under option E were higher than under option I. Furthermore, option E affected the Lake Chicobi watershed, a region of cultural and traditional significance for the Abitibiwinni First Nation. Option E also had environmental and technical disadvantages associated with the solid materials transportation distance and operating costs.

Option I allows RNC Minerals to meet the environmental, social, technical and economic constraints and to limit the impacts to a restricted area, which is always a challenge for mining companies and a priority for stakeholders. With this choice of site, the concerns of both the proponent and the stakeholders are met.

However, the preferred option will encroach on a water body frequented by fish, and therefore the storage of low-grade ore in this water body will require that it be listed in Schedule 2 of the MMER.

The alternatives assessment report prepared by the proponent was reviewed by the Department of the Environment based on its Guidelines for the Assessment of Alternatives for Mine Waste Disposal.

Analytical framework

The amendments would add a fish-frequented water body to Schedule 2 of the MMER to allow this water body to be used for the storage of low-grade ore from the Dumont mine project.

The analysis below examines the impacts of the amendments on the environment, government and Canadian businesses.

Environmental impacts

The preferred option encroaches on a fish-frequented water body, which consists of a portion of an unnamed creek and intermittent streams that flow into the creek. The total length of the water body is 9 km. This water body provides habitat for 10 fish species, mainly minnows and brook stickleback, which are not highly prized fishery species. The majority of the fish habitat loss concerns channel type streams. The unnamed creek has a low gradient profile, an average width of approximately 3 metres and is interrupted by beaver ponds.

The portion of encroachment by infrastructure on fish habitat that corresponds to low-grade ore storage is approximately 3.4 hectares.

The fish habitat loss will be offset by the implementation of the fish habitat compensation plan as required under section 27.1 of the MMER. Following its assessment, the Department of Fisheries and Oceans determined that the compensation plan proposed by the proponent to offset the loss of fish habitat resulting from the storage of low-grade ore is relevant and is consistent with the guiding principles of the Fisheries Productivity Investment Policy.

Costs to Government

Government of Canada enforcement activities include inspections to monitor the implementation of the fish habitat compensation plan, which may have associated incremental costs. Specifically, there may be incremental site visits, monitoring and review costs incurred by the Department of Fisheries and Oceans. These incremental costs would 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. Furthermore, these incremental monitoring activities, and associated costs, would only occur during the implementation of the fish habitat compensation plan and would not continue throughout the life of the low-grade ore storage areas.

Incremental compliance promotion costs may also be incurred, but would be low, given that the majority of compliance promotion activities occurred during the federal environmental assessment process.

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

Costs to business

The amendments would result in additional costs to RNC Minerals associated with the implementation of the fish habitat compensation plan to offset the loss of fish habitat caused by the storage of low-grade ore. The cost of the development work planned in the compensation plan is estimated at $47,420. (see footnote 9) This amount will cover, in part, the construction of the access road to the dam site, the construction of the new dam and follow-up of the effectiveness of the compensation plan.

Strategic environmental assessment

A strategic environmental assessment concluded that listings of waters frequented by fish added to Schedule 2 of the MMER to authorize the deposit of mine waste will result in adverse environmental effects. However, the resulting loss of fish habitat will be offset by a fish habitat compensation plan. Therefore, there is expected to be no net loss of fish habitat.

Implementation, application and service standards

The amendments will enable RNC Minerals to use a water body frequented by fish for the storage of low-grade ore from the Dumont mine project.

As the MMER are regulations made pursuant to the Fisheries Act, enforcement personnel would, when verifying compliance with the MMER 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 should include, among other inspection activities, site visits, sample analysis, and a review of the fish habitat compensation plan and other reports associated with the amendments.

If there is evidence of an alleged violation of the fisheries protection and pollution prevention provisions of the Fisheries Act and/or related regulations, enforcement personnel would determine 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 10)

Contact

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