Our Experiences with Environmental Assessment:
Selected Case Studies of Environmental Planning and Assessment Processes in Canada

 Prepared By:

The Environmental Planning and Assessment Caucus of the
Canadian Environmental Network

January 2000

Table of Contents

1.0 Introduction:

What is Environmental Assessment?
What are the core principles of good environmental assessment?

2.0 Case Studies: Screenings:

The Sunpine Case
Sulphur Mountain Horse Trail
An Atomic Energy Control Board handling of screenings

3.0 Case Studies: Comprehensive Studies:

The TransQuebec and Maritimes (TQM) Portland Natural Gas Transmission System (PNGTS) Extension Gas Pipeline Project

4.0 Case Studies: Review Panels:

Oldman River Dam (EARPGO)
Uranium Mine Tailings Decommissioning (EARPGO)
Nuclear Fuel Waste Management (EARPGO)
The Environmental Assessment of McClean Lake
Cheviot Coal Mine
BHP Diamond Mine
South Kemess Copper / Gold Mining Project

5.0 Case Studies: Other Processes:

Huckleberry Copper Mine
Bronson Slope Mine Proposal
Licensing of the Maple Leaf Facilities in Brandon
The British Columbia Salmon Aquaculture Review

APPENDIX: REFERENCES AND SOURCES

1.0 Introduction

Environmental Assessment in Canada takes many shapes and forms. Canada has a federal EA process, governed by the Canadian Environmental Assessment Act, ten distinct provincial assessment processes, territorial processes, a number of EA bilateral agreements between the provinces and the federal government, and different EA processes for projects undertaken by Crown Corporations, Port Authorities, on First Nations lands, among others. With all of these processes added together, Canada might have as many as 200 EA regimes (Nikiforuk, 1997). The process of EA can and does take place in many different ways at different levels of government.

There are, however, some underlying "core" principles that should be part of all Environmental Assessments. In this report, the core principles of good, effective EA are outlined, and then a number of case studies of EA "in action" are presented. The case studies range from considering the implications of the absence of any EA in the licensing of the Maple Leaf Facilities in Brandon, Manitoba, to the very detailed assessments of larger mining projects such as the Cheviot coal mine in Alberta and the BHP diamond mine in the North West Territories.

Each case study has been prepared by a member of the Environmental Planning and Assessment Caucus. The Environmental Planning and Assessment Caucus is a national group of "member groups" housed within the Canadian Environmental Network. The Caucus is made up of activists, community educators, ecological foresters, lawyers, and concerned citizens, among others, all of whom have first-hand experience with EA in Canada. Additionally, all have an interest in improving environmental planning and assessment in Canada at local, provincial and national levels while working to broaden citizen participation in these processes.

Caucus members have brought different voices to each of their narratives included in this report. They have also chosen to highlight different aspects of what they feel to be the strengths and weaknesses apparent in the EA in which they were involved.

This compilation of case studies comes at a crucial time for EA in Canada. Not only are bi-lateral agreements for EA being put into place between federal and provincial powers under the Canada-Wide Accord on Environmental Harmonization, the Canadian Environmental Assessment Act is up for review beginning January 2000. These case studies highlight many of the weaknesses, and some of the strengths, of the current practice of EA in Canada. The Review of the Act is an excellent time to address inherent weaknesses and build on and enhance strengths.

What is environmental assessment?

Environmental Assessment is an approach to planning...At minimum, environmental assessment is a means of anticipating and avoiding or reducing problems before they arise. More positively, it is a broader and more far-sighted approach to determining what actions we should take to make the best of our opportunities (Gibson, 1993).

EA is a process...

Environmental assessment is the process of examining the impact of an activity ­­ a project, a program or a policy ­­ on the entire environment it will potentially affect. An ideal EA is proactive and anticipatory and, as a decision-making process, fully integrated into the development of a project, program or policy. The ideal EA process will require integration of environmental consideration in initial planning, where needs and alternative responses to such needs are addressed (Gibson, 1992).

When done properly, EA is a democratic decision-making tool used to determine whether an undertaking has social, economic and ecological value for the health of those areas and people potentially affected by a proposed project, program or policy. EA provides a framework within which governments, industry and the public can make informed and socially and ecologically acceptable decisions.

EA is sometimes seen as a hindrance to development or competitiveness. While EA clearly costs money and takes time to perform, the amount of money spent or the amount of time taken to do a good, comprehensive EA’s are usually substantially smaller than after-the-fact rehabilitation or project alteration costs. Done properly, EA is a valuable process, saving money and time while ensuring sensible decision making.

EA is a constantly evolving process. This evolution can largely be credited to the interventions of Canadian citizens and groups concerned about government and industry decision-making. The work and energy of concerned citizens has contributed to landmark decisions that have shaped and defined the process, application and use of EA. The Kemano Completion Project, the Oldman River Dam, the Rafferty-Alameda Dams and the Great Whale Hydroelectric Project were either stopped or significantly modified by the determined efforts of citizens, landowners, environmental groups and Aboriginal peoples.

If we understand the core principles of an ideal EA, we are in a better position to see the strengths and weaknesses of EA as it is practiced on the ground. The following principles would be seen in an ideal EA. This is not necessarily how EA is actually carried out across Canada.

EA should be an open, accountable and independent process.

Good EA is open, transparent and accountable, and administered by a neutral and independent body. A process that is not open and transparent is of no benefit to the public, government, or the proponent. A process that is administered by a body with a vested interest in the project is not credible.

EA should be done early and before any decisions are made and address needs and alternatives at this early stage.

The impact of a project, plan or policy should be considered as early as possible in the design and planning of the project and before any decisions are made regarding the project. Waiting too long before assessing the project can cause unnecessary time and financial costs to both the public and the proponent and can cause project delays. If an assessment is done after decisions are made that favour the project, the assessment might not be an objective one.

More importantly, EA should be initiated while the need for the project and alternatives to fill that need are still open for consideration. Only at this point can best options be selected on environmental as well as technical and financial grounds.

EA should apply to every undertaking that may have environmental significance.

EA should be applied to all public and private projects, policy and plans that may be environmentally significant. An approach that considers only reviewing those projects, policies and plans that are defined in regulations found in EA law, allows many projects, plans and policies to slip through the cracks and not be assessed.

Environment should be defined broadly in an EA.

In addition to including the biophysical effects and impacts of a project, plan or policy, environment should be defined in EA law to include the social, economic, spiritual and cultural impacts. Many programs and projects have significant immediate and future impacts on local, regional and global ecosystems and on community health, livelihood, traditional practices and autonomy. If environment is defined too narrowly in the law, these impacts will not be taken into consideration during the EA.

The public should be involved in a significant and effective way.

It is important that the public have an opportunity to participate in EA in a significant and effective way. This involves access to information and expertise when needed; access to funding so the public can organize, learn about the project / options / issues and formulate positions and present concerns effectively; and timely notification of the steps in an EA so that the public has the time to respond to documents or studies.

EA should result in a binding decision.

The ultimate decision that arises from the EA process should be binding on the decision-makers that give the final decision concerning the undertaking.

EA should be efficient and integrated with other planning processes.

Ideally, EA should be just one part of a comprehensive environmental planning framework. This framework should: define regional environmental goals, objectives and priorities; inform policy development and review; incorporate environmental consequences and values into development decisions; and monitor progress against goals and objectives.

2.0 Screenings

The Sunpine Case

Overview

In 1993, Friends of the West Country (FWC) , a non-governmental organization that focuses on the impacts of timber harvesting, became aware that Sunpine Forests Products (Sunpine) was planning on building an all-season " trunk" road that would allow the company to access an area they planned to harvest under their Forest Management Agreement. Building the all-season road required the construction of two bridges over the Ram and Prairie Creeks. Individuals involved in FWC live in the area and use the land for hunting, fishing, trapping, and recreational purposes, and they wanted to ensure that the environmental effects of the proposal were understood and public concerns fully considered before any irrevocable decisions were made regarding the proposed bridges.

Between late Fall 1993 and August 1996, various requests were made to the Department of Fisheries and Oceans (DFO) and the Canadian Coast Guard (CCG – the responsible authorities) by the FWC for impact assessments, information and clarification on numerous issues. Among other things, the letters pointed out the likelihood of increased siltation of streams crossed by the proposed road, increased sediment run-off into streams following rain events and fragmentation of wildlife habitat. The FWC were denied access to the Sunpine application document, citing lack of resources to copy the application for distribution and were instructed to go to the public registry for any pertinent documents related to the case in Sarnia, Ontario. Although finally provided with a small number of relevant documents, FWC were told that they would have to go through a lengthy "Access to Information Act" process to get any others they were not given.

The result of the three-year process was the approval of the Screening process by the CCG, which looked only at the environmental effects of the two bridges but failed to take into account impacts from all "related undertakings" (Section 15, Canadian Environmental Assessment Act – hereafter CEAA) and to consider the project’s "cumulative effects" (Section 16 [1] CEAA). Two weeks later, the CCG had completed an addenda to the Screening Reports and then proceeded to recommend the issuance of Approvals under the NWPA. Approvals were granted the following day.

On August 19, 1996, FWC decided to take the matter to court and filed an "Originating Notice of Motion" with a supporting affidavit. The FWC argued that the CCG had not complied with the requirements of the CEAA, particularly Sections 15 and 16 (see above) and Sections 18 (3) and 55 which stipulate that a public registry must be provided that is convenient and must give the public an opportunity to examine and comment on any records in the registry.

On July 7, 1998, Justice J. Gibson of the Federal Court, Trial Division, decided that the CCG failed to comply with CEAA by arbitrarily limiting their environmental review to the impacts of the two bridges. The Judge ruled that the CCG and Minister of DFO failed to assess the cumulative impacts of the project in combination with other projects and activities in the area as required by law. Justice Gibson also stated that Sarnia, Ontario did not constitute "convenient public access" to documents in the public registry for residents of the "foothills of Alberta".

On September 25, 1998, the Government of Canada asked for an expedited appeal before the Federal Court of Appeal as well as a stay of the ruling until the issue was resolved in the Court of Appeal. In a press release, the Government stated, "The Government is appealing to clarify an important point of law. We need a clear understanding of the discretion federal departments may exercise in determining the scope of projects and assessments under the CEAA" (Justice Minister Anne McLellan).

In November, 1998, Federal Court Chief Justice Isaac dismissed the stay and stated that a new environmental assessment must be undertaken. The appeal was expected to be heard in the late spring or early summer of 1999.

Key Issues

Triggering:

The Federal Government took months to decide whether or not there was a federal trigger that would force them to conduct an environmental assessment under CEAA. Although there was ample evidence of public concern, uncertainty of impacts, and potential damage to fisheries habitat, the federal government did not undertake the screening process until 1996, three years after FWC became aware of the company’s plans to build the road. This late triggering only caused unnecessary delays and uncertainty for the proponent, as well as denying the right for the public to be involved in the decision making process.

Public Involvement:

The overview above also highlights the obstacles faced by the public when they tried to obtain documents pertinent to the project. FWC were even told that they had to contact the proponent to receive a copy of the Sunpine proposal document itself. Later, there were numerous pre-trial motions that forced document production which resulted in a May 1997 preliminary judgment against the federal government by Justice Muldoon of the Federal Court. This decision was appealed by the federal government, where they were once again unsuccessful. Justice Gibson, in his later ruling, stated that the DFO’s handling of document requests was "completely inappropriate and more importantly not in keeping" with CEAA.

Consideration of Cumulative Effects:

It is important to note that the FWC, along with foresters and biologists with the Alberta Department of Environment, identified a number of potential cumulative effects that were excluded from consideration in the screening, thereby severely limiting the CCG’s ability to make an informed decision in this case. They included:

• Increased siltation of streams due to road crossings and associated fills and ditches
• Increased run-off of sediments into streams following rain events resulting from the road and logging activities near streams
• Increased harvest of fish and wildlife in the areas because of greater access from the new road
• Increased human presence in the area, due to the road, with resulting negative impacts on some wildlife species
• Fragmentation of wildlife habitat by the road and logging activities
• A range of fishery-related impacts from logging, including: physical deterioration of streambanks and channels; increased nutrient loads and water temperature; barriers to fish passage; loss of vegetation on streambanks; and the effect of widespread forest removal on streamflow.

 Sulphur Mountain Horse Trail

Overview

Environmental screenings under the Canadian Environmental Assessment Act are frequently conducted in National Parks. These projects are often in close proximity to one another and interact with tourism activity occurring in a large area. This project, in Banff National Park, involved a proposal by Parks Canada to relocate a horse trail in order to protect a critical wildlife movement corridor.

The need for the project arose when existing hiking and horse trails were closed to secure an existing wildlife movement corridor around the Town of Banff. Securing the corridor at the base of Sulphur Mountain was recommended in the environmental screening of the Middle Springs II area structure plan. Unfortunately the environmental assessment did not assess the effects of closing the trails; the subsequent need for two-way horse traffic overwhelmed the trails designed for one-way movement.

A proposal to build new trails was made by Parks Canada. Alternative new trail routing options had the potential to affect: the habitat of an endangered snail found nowhere else in the world; an historic site; environmentally sensitive wetlands; as well as existing public road and walking path alignments. The direct involvement of a federal authority and federal lands triggered an environmental assessment of the proposal under the Canadian Environmental Assessment Act (CEAA).

Since the required trail construction was to be on National Park land, Parks Canada served as both proponent and responsible authority. In addition, Parks Canada staff specializing in environmental assessment prepared the assessment and allowed 14 days for public review after notifying parties known to be concerned. Upon receiving public comments a site meeting was held to discuss comments on the EA and to examine the sites affected by the project. A number of local researchers and a local naturalist club commented on the project and were invited by Parks Canada to the site visits along with the trail ride operator and various Parks Canada staff members.

The environmental assessment recommended building a new horse trail within the sensitive wetlands. It was stated that this option would address the issues of quality of experience and public safety while avoiding public road crossings and the endangered snail habitats. By redeveloping an abandoned berm through the sensitive wetland, this option was predicted to involve minimal disturbance and to have lower construction costs.

Public comments on the EA agreed with the identification of most environmental issues but they were very concerned that Parks Canada had not addressed the longer term planning issues. Public reviewers were also concerned that all viable alternatives had not been considered. Other public concerns related to the project included a desire to protect the integrity of the sensitive wetlands according to the Banff National Park Management Plan. The public expressed a need to postpone the project until a local management plan required by the Banff National Park Management Plan could be developed.

As a result of the comments received, Parks Canada facilitated a site visit to discuss the project. Following the discussion it was recommended that a new preferred alternative be adopted. This option involved twinning an existing trail along the edge of the wetlands to allow for safe two-way horse traffic. While this option required some additional disturbance, it avoided fragmentation of the wetlands which would have occurred if the preferred option had proceeded.

 Key Issues

Consideration of Alternatives:

Consideration of alternative alignments for the proposed trail is a key feature of this assessment. Each of the potential options was clearly explained and analysed in the screening report according to the effects that each option had the potential to generate. This documentation of the analysis made it possible for reviewers to understand the environmental tradeoffs considered in selecting the preferred option. As a result, public discussion of the screening report focused on resolving key issues. Since the assessment process already was open to the consideration of alternatives it was possible to select a new alternative following public review. However, while this assessment was to be praised for its consideration of alternatives there was serious concern that an apparently obvious alternative, and the one having the least serious environmental effects, was not considered. Direction given to EA practitioners (in legislation or EA standards of practice) must be more specific to ensure that all potentially viable alternatives are assessed.

Public Comment/Participation:

This case demonstrates how public comment on a relatively small project improved the EA outcome. Revaluation of the project based on public input resulted in the selection of a new option which improved protection of the natural environment while continuing to address the socio-economic issues. Public involvement improved communication among the interested parties and improved transparency of the decision-making process.

However: 1) Very few copies of the screening report were printed. One copy was available for review at the Parks Canada administration building in Banff. Park staff loaned another personal copy for review; 2) The fact that screening level EA in the area regularly depends on and benefits from public participant experience and expertise suggests that participant funding of some nature could have helped to compensate the effort, time and expenses the public participants regularly commited to improving planning through EA processes; finally, 3) The review time should have been longer to allow for detailed review. A more general notification would have allowed other key interested parties such as the Town of Banff to respond. Also, scheduling the site visit in the middle of a work day limited public participation.

Improved Planning:

A critical issue raised by the interested parties was the need to place this project in the context of an overall plan for the Sulphur Mountain area. While this assessment was completed without the benefit of an area plan, the issues raised and discussed provided stimulus for Park managers to begin taking action towards the preparation of that plan.

The earlier Middle Springs II screening report should have been more diligent in the assessment of effects and alternative approaches to design and implementation of the closure. Such early consideration would have allowed planners more flexibility in addressing the issues of trail safety and reduced quality of park experience resulting from congestion created by a mitigative measure recommended in that assessment.

 An Atomic Energy Control Board handling of screenings

Overview

The project in question was the proposed expansion of the tailings management facility (TMF) of the Cluff Lake Uranium Mine in northwestern Saskatchewan owned and operated by Cogema Resources Inc. (a majority owned subsidiary of the French Atomic Energy Commission). The proposed expansion of the TMF was first made public in early spring 1998. This case is reviewed here as an instructive as to how the AECB interprets their responsibilities under the Canadian Environmental Assessment Act (CEAA) in general, and "screenings" in particular.

In 1993, the expansion of the mining operations underwent a full environmental assessment under the EARP Guidelines Order. The Panel gave approval for construction and operation of the proposed expansion. Cogema argued that the existing TMF had enough capacity to handle the tailings that would result from the expansion. The Panel accepted this argument but also stated that this TMF should be closed as soon as possible.

In the spring of 1998, Cogema made known their intent to expand the TMF because they had at least ten more years of reserves and not enough capacity in the TMF. As the responsible authority, the AECB received the information as part of Cogema’s request for a licence renewal. The provincial government and the AECB jointly prepared guidelines for an Environmental Impact Statement.

In almost all circumstances, the AECB under the CEAA’s Section 20 generally used subsection 20 (1) (a) because "the project is not likely to cause significant adverse environmental effects." In this instance, a more honest interpretation of the Act would have been sub-section 20 (1) (c) (I) which says "where it is uncertain whether the project, ... is likely to cause significant adverse environmental effects" There was no question that the expansion of the TMF and the concomitant increase of production of uranium would fall under sub-section 20 (1) (c) due to serious concerns about the effects of leaching radionuclides.

Furthermore, due to the fact that there would be an increase in production of uranium, this project would automatically come under the Comprehensive Study List. Although the AECB attempted to interpret the Act in the most narrow possible fashion, evidence for production exceeding a 35% increase submitted by Maisie Shiell (July 13, 1998) clearly pointed to either a Comprehensive Study Review or to referral to the Minister. The AECB gave a weak response by saying they had not made a decision yet on what kind of EA would be required. Neither were undertaken as Cogema soon after announced the closure of this mine.

Eventually, Cogema ceased the preparation of an EIS as they announced on August 20, 1998 that they were going to suspend their Cluff Lake Operations in December 2000.

Key Issues

The Need for Public Participation:

The public is regularly kept out of the environmental assessment process when the AECB is the responsible authority. When a screening report is issued by the AECB, it is made public as part of their submissions to the Board when licensing decisions are to be made. AECB staff do not solicit public input during the screening process. The public is able to read their reports only during the actual licensing process and has to argue with the AECB over interpretations of the Act in terms of the kind of assessments required.

 Need for Clarity:

In order to alleviate differences of interpretation between the AECB and the public, the Act must be much clearer; aided by better definitions of terms and direction from the Canadian Environmental Assessment Agency. ‘Interpretive leniency’ the AECB used (and uses) allows them to avoid making commitments to the public review of projects. The goal should be finding ways to create easy access for people to become involved.

Such narrow interpretations of the Act and scoped implementation are common for the AECB. A further example of this is from the Screening Report dated June 2, 1998 for the Tritium Target at the Electron LINAC research Accelerator Facility at the University of Saskatchewan. There had been a major release of radium into a nearby lake the previous year. The AECB Staff were quite concerned about this release as it was unclear what the reasons for the release were, what was the source of the contamination or what the effects on the biota would be. The Board Staff, as part of their duties in preparing a recommendation to the board on whether or not to grant a new operating licence, undertook an environmental assessment screening. The public was not notified of this activity and only saw the report when it was released as an appendix to their submission to the Board which recommended approval of the operating licence, albeit for only nine months.

3.0 Comprehensive Studies

The TransQuebec and Maritimes (TQM) Portland Natural Gas Transmission System (PNGTS) Extension Gas Pipeline Project

Overview

The project was justified in terms of the need for additional capacity to deliver Western Canadian gas to the northeastern States. It called for the installation of some 210 km of 600 mm (24 inch) pipeline from TQM’s existing system at Lachenaie to a point on the Quebec – New Hampshire border near East Hereford. The proposed pipeline route involved over 200 watercourse crossings, twelve of which were large rivers, including three channels of the Saint Lawrence. The majority of these large river crossings would be performed by directional drilling. Some 48% of the route was on cultivated land and 35% throughout wooded areas. 55% of the route would be adjacent to existing linear infrastructures such as roads, power lines, and pipelines. The Environmental Assessment under the Canadian Environmental Assessment Act (CEAA) was triggered through the law list (approval by the National Energy Board under its Act) and a comprehensive study was required (pipeline more than 75 km in length on a new right of way).

The project went through proponent information meetings followed by public hearings under the Quebec Bureau d’audiences publiques sur l’environnement (bureau of public hearings on the environment) (BAPE), the Commission de protection du territoire agricole du Quebec (Quebec agricultural land protection commission) (CPTAQ) and the National Energy Board (NEB or Board). Finally, there were also detailed route hearings in cases where property owners objected to the pipeline route across their land.

Under the BAPE process, the proponent’s impact study was made public 9 May 1997. Starting 9 June 1997, a panel of three was given the statutory four month mandate to hold public hearings and produce a report on its findings for consideration by the Quebec Minister of the Environment and decision by the Quebec Cabinet of Ministers. Eight documentation centers were set up and two rounds of hearings held, the first for questions and the second for opinions, at four locations along the pipeline route. Quebec approval for the project came in December, just as the NEB hearings were finished.

For Mouvement Au Courant (MAC), the BAPE hearing opened many new avenues of questions regarding, in particular, the start and finish points for the pipeline that the proponent considered as fixed. They found out later that there had already been much discussion on that issue in a previous hearing before the NEB and, in camera, before the Quebec Regie du gaz naturel, who gave pre-authorization for the project in September 1996. MAC also discovered that the United States portion of the proposed pipeline had already been summarily dismissed when the Federal Energy Regulatory Commission (FREC), responsible for authorizing PNGTS, published its Draft Environmental Impact Statement (EIS) in June 1997; a Vermont crossing point was favoured over the proposed one in New Hampshire.

The NEB’s public participation process started, for the initiated, with requests for comments on the scoping package, which included topics to be covered under the NEB Act and CEAA. With some knowledge that there were various alternatives other than the proposed project, MAC requested that the scope of the EA be broadened to include a detailed analysis and comparison of alternatives.

Four pre-hearing information seminars were held regarding the Board and its role, the various applicable law and regulations (with handouts) and on how to intervene as either a "Full Participant" throughout the whole quasi-judicial proceedings, or as a "Limited Participant" (mainly for affected property owners). Seven documentation centers were established. A panel of three Board members held 19 hearings, with simultaneous translation, during November and December 1997 in Montreal and Orford and transcripts were made available to intervenors who could not afford to purchase them. The panel heard extensive evidence on the choice of the border crossing point, technical feasibility, convenience, cost and environmental impacts, with particular attention to dynamiting damage to underground water sources, use of the right of way by snowmobiles and all-terrain vehicles, possible pipeline rupture and damage to areas of special ecological value.

Within the context of the Board’s regulatory powers on rates, there was much debate on alternatives that would be shorter and thus cheaper and less environmentally detrimental. The debate was spearheaded by Union Gas, who paid the lion’s share of gas transmission fees to TransCanada Pipelines (TCPL) and TQM. However, the proponent was not obliged by the panel to present a detailed analysis of the most feasible alternative, which would generally follow the existing Montreal – Portland oil pipeline through Vermont rather than New Hampshire and would cut approximately 70 km off the length of pipeline in Quebec.

To the surprise of many, the panel chose to ignore completely the evidence of alternatives, arguing that the project was not likely to have significant environmental effects. The panel soon after released its Comprehensive Study Report (CSR) at the end of February 1998, concluding that the project was acceptable. Despite calls for an independent panel hearing on the project, the Federal Minister of the Environment, at the end of March, agreed with the CSR conclusions and referred the project back to the NEB for final decision, which followed immediately.

As expected, the Board approved the project and rejected Union’s idea that the PNGTS Extension users should pay a surcharge based on the extra cost over and above what a cheaper alternative would have cost. On this last point, Union requested that the Board review the decision because it did not take into account all the evidence heard by the panel. Union also initiated a judicial review procedure before the Federal court of Appeal. In June 1998, the Board reiterated its position that it did not have to look in detail at alternatives and, in February 1999, Union dropped its court case.

Key Issues

Strengthening the Act:

Despite a good public participation procedure, the outcome was disappointing because the panel refused to consider all the evidence before it. This is in part the fault of the Act since it does not require the Proponent and the Responsible Authority to search out the solution with the least impact. To participants, it felt in many ways as though the process was a ‘waste of time’.

Panel Make-Up:

The panel could have been more objective if it had not been made up solely of NEB members.

4.0 Review Panels:

Oldman River Dam

Overview

A turning point with respect to environmental assessment in Canada, the Oldman River Dam established the right of the federal government to play a significant and legislated role in environmental management and decision-making across the country. On a more local level, the Oldman River Dam illustrates the damage that can occur when projects are not assessed in a comprehensive, proactive and transparent manner.

The Oldman River Dam is located downstream from the confluence of the Oldman, Crowsnest and Castle Rivers, all near Pincher Creek in Southern Alberta. The dam is 76 meters high and 3 0780 meters long and is an earth and rockfill dam. At full supply level the reservoir would store 490 million cubic meters of water, extend 24 kms in length and have a surface area of 24.2 square kms. The purpose of the Dam was to "impound water for water management, flood control, erosion control, flow regulation, conservation and recreation". Proponents of the dam asserted that flow regulation achieved by the Dam would also permit irrigation expansion, enhance downstream fisheries, improve water quality, provide an assured water supply for municipal and other uses, and provide Alberta with greater flexibility to meet its commitments for water supply to downstream Provinces.

Although the Oldman River Dam Environmental Assessment was undertaken between November 1990 and April 1992, the project had a much longer history. In May of 1958, the government of Alberta first approached the Prairie Farm Rehabilitation Administration (PFRA) of the federal Department of Agriculture to determine the feasibility of constructing a storage reservoir on the Oldman River at a site called Livingstone Gap. From this date, numerous studies were undertaken by mixed public and government panels and committees that sought to ascertain the best sites and various water supply and demand requirements of the region. Although several of the studies pointed to serious environmental concerns and in 1978 even recommended against building the dam, in September, 1987 the federal Minister decided to forego assessment under the Environmental Assessment Review Process Guidelines Order (EARPGO) and approved the application to construct at the Three Rivers site.

Friends of the Oldman River (FOR), a group of concerned citizens, was organized in mid 1987 to oppose the project. After several requests to the federal Minister of the Environment for a Review were refused and after several unsuccessful attempts to have the license withdrawn at the provincial level, FOR took the matter to federal court. There, on April 21, 1989, Justice Jerome dismissed their application. In the meantime, by March 31^st, 1989, the dam construction was already 40% complete.

Soon after, FOR appealed to the Federal Court of Appeal and was successful, and while the dam was nearing completion, a public review was set up in the form of a Panel Review Process. As the review of the Dam was carried out while the construction of the dam reached completion, the Panel did not prepare guidelines nor was an Environmental Impact Statement prepared by the proponent of the project. Instead, the Panel, with the help of provincial resource people and interested citizens, prepared an Additional Information Requirements document. The public were involved in a series of "Issue Identification Meetings" held in January of 1991. Following this, a team of technical specialists to the Panel and federal, provincial and local resource people prepared a response to the Additional Information Requirements document. This collection of responses guided the discussion at further public meetings and hearings.

The panel stated that "although many environmental and socioeconomic impacts are discussed in this report, the major considerations are those affecting fisheries, wildlife and riparian forest ecosystems, and those affecting the Peigan Indian Band". The panel found that the impacts in these four areas were of such significance that they far outweighed the marginal economic benefits derived from increased irrigation, agriculture, and other uses of the dam. This lead the panel to its first recommendation to decommission the dam by opening the low level diversion tunnels to allow the unimpeded flow of the river. All but one panel member agreed with this primary recommendation.

Key Issues

In its final panel report to the Federal Minister of Environment, panel members put forward some strongly worded comments regarding the project and, more specifically, the assessment process.

Timing of Review:

A key principle of effective environmental assessment lies in its timely application. An effective assessment must take place before any irrevocable decisions are made. This was clearly not the case in the Oldman River Dam, and the panel commented on the fact that, by the time the federal government convened the panel, many people were wary of spending more taxpayers’ money on a project that had already been "studied to death" and was virtually built. If an assessment is integrated into the early planning phase of a project, more thought can be given to a consideration of the need of the project, purpose of the project and potential impacts of the project. This saves both time and money for the government, the proponent and the taxpayers.

On-going Construction during the Review:

The credibility of the review process would have been augmented by a cessation of construction on the dam. Again, this comment touches on the idea of irrevocable decisions being made before an environmental assessment is completed. The panel went on to recommend that, if a project commences before the process is implemented, the federal government must use statutory power to halt construction of the project and, failing this, the Minster of the Environment should use all available statutory power to implement accepted Panel recommendations.

Despite the lateness of the panel review, it is widely recognized that the panel resulted in the Oldman River Dam being a much better project. Despite the fact that the need for the project was never established and continually questioned, the panel’s recommendations, which numbered into the twenties, offered sound solutions for the mitigation of already apparent negative impacts of the project. However, like other panel reviews, the recommendations were only recommendations and not binding on the federal government.

Uranium Mine Tailings Decommissioning

Overview

In February, 1993 the Atomic Energy Control Board referred the decommissioning of Rio Algom and Denison's uranium mine tailings at the Quirk, Panel and Denison waste management areas to the Minister of the Environment, requesting a review under the Federal Environmental Assessment Review Process Guidelines Order (EARPGO). Scoping sessions were held in December 1993, draft guidelines were issued and the Environmental Impact Statements were released, with comments on their ability to meet the guidelines required, in February 1995. A hearing was held in Elliot Lake in November 1995, and continued into January 1996 (they had been scheduled to conclude in November, but the death of a Serpent River First Nation elder required that the community hearing in Cutler, the Serpent River First Nation community, be delayed until January).

Rio Algom Ltd. and Denison Mines Ltd. had requested authorization from the Atomic Energy Control Board (AECB) to decommission the tailings management areas of their uranium mines in the region of Elliot Lake, Ontario. The companies had been authorized by AECB to recover material and to demolish surface structures and underground work sites. Given the similarities and possible environmental interaction between the two companies’ tailings management areas, the AECB had recommended that the panel be mandated to examine all currently licenced tailings areas, but the review did not include the 8 remaining unlicensed tailings areas.

Rio Algom and Denison Mines were proposing to decommission the tailings areas by constructing a series of dams and dikes to flood the tailings. By providing a protective water barrier, such a ‘water-submersion’ technique was purported to drastically reduce acid generation by acting as a barrier to oxygen reaching the tailings and by also acting as a barrier to radon gas escape.

A three person panel was appointed by the Minister of the Environment, two with mining experience in the region and associated with the mining industry, and the third - the panel chair - a retired federal civil servant. The two companies - Rio Algom and Denison - had jointly retained the consulting firms of Senes Limited and Golders, two engineering firms. Various presentations were made by the Atomic Energy Control Board, Health Canada, Environment Canada, Ontario’s Ministry of Northern Development and Mines and the City of Elliot Lake. Numerous local member groups, including Serpent River First Nation, and out-of-region environmental and women’s organizations, made submissions while Northwatch was the single consistent public interest participant.

Northwatch's key concerns with respect to the uranium mine tailings in the Elliot Lake basin could be grouped under three categories: 1) Radiological affects: Exposure to ionizing radiation can cause biological damage. Damage from radiation is cumulative. Several major reports have indicated that Canadian standards should be improved; 2) Acid generation: The exposure of sulphide-bearing minerals to air and water creates sulphuric acid. Acid generation can last for decades, centuries or even longer, and its impacts can travel many miles downstream; 3) Cumulative impacts on the social and environmental well-being of the basin. The residents of the Serpent River basin - both human and non-human - have a basic right to a healthy habitat and water source, both of which could be adversely impacted by the tailings and their inadequate management. Thus, the management decisions affect the lifestyle, life choices and very life blood of the Serpent River basin. Northwatch believed that the Review failed to address each of these issues adequately.

The panel report concluded with an approval of the undertaking in June 1996, but with several key conditions, including the recognition of the need for perpetual care, a call for a public monitoring body, and support for curiosity-driven research in the area. The government response was issued almost a year later, and it effectively rejected the Panel’s key recommendations as having been outside their mandate, with the exception of the Panel’s recommendations to accept shallow water cover as the preferred decommissioning option. The Atomic Energy Control Board has subsequently granted a license for the decommissioning of the Stanrock tailings management area, and were considering (in February 1999) an application for the decommissioning of the Denison TMA 1 and TMA 2 waste sites.

Key Issues

Terms of Reference:

Initially, the terms of reference excluded cumulative effects, but after effective interventions by First Nations, environmental organizations and the provincial government, the terms of reference were slightly broadened to give consideration to the contribution of the mines under review to the cumulative effects in the Serpent River basin. The review would have been improved by making this broader to include cumulative effects in the Serpent River basin more generally, and by requiring the proponent to have addressed it more directly and comprehensively.

EIS Deficiencies:

The EIS was deficient in its investigation of key areas related to acid mine drainage and physical or structural concerns related to the proposals. Even more important however were the deficiencies in addressing radiological effects and related concerns. A number of difficulties were presented by the structure and form of the Environmental Impact Statements; difficulties which made a review challenging to the point of being unduly onerous.

Participant Funding:

Participant funding was inadequate to the task, particularly given the range of technical, environmental and health concerns.

AECB:

The role of AECB was too multi-faceted in their participation as intervenor, as a former regulator having eliminated the most environmentally sound option prior to the start of the review and as the future regulator who would ultimately grant the licenses. (Note: AECB had already granted a license to decommission the surface structures and mine workings; this had resulted in construction debris being placed in the mine shafts, effectively eliminating the environmentally soundest option of returning 30-50% of the tailings to the underground workings).

Scope:

A number of other sites were excluded through a procedural definition rather than a practical reason. The review looked at only those sites that were still under license by the AECB.

Notice:

Notice was both limited and late for the review commencement and the scoping sessions.

Decision:

The government response rejected the key panel conclusions which would have been of benefit to the community and the environment.

Nuclear Fuel Waste Management

Overview

Atomic Energy of Canada Limited is a crown corporation which the federal government funds to research and promote nuclear technologies. AECL has, for decades, been trying to find a means to rid the nuclear industries of their biggest technical and public relations problem – the highly radioactive wastes produced by nuclear reactors. In 1988, the AECL "concept" of a "disposal" method for nuclear fuel wastes was made the subject of a federal environmental assessment review under the Environmental Assessment Review Process Guidelines Order (EARPGO). While described by the federal government as being a product of a "Canada-Ontario Program" on nuclear fuel waste, the review process itself was strictly a creature of EARPGO, and lacked any of the distinguishing features of the Ontario Environmental Assessment Act as it was in effect at the time of the review (eg. intervenor funding, notice provisions, evidentiary procedures). Additionally, the Ontario government was not represented at any point in the proceedings, nor did it make appointments to the Panel or the Scientific Review Group established to assist the Panel with technical advice.

The AECL concept was to bury the highly radioactive nuclear fuel waste in the granite rock of northern Ontario. This "concept" was the result of political decisions in the 1970's, and was not the subject of a public or scientific review before the federal government adopted it as policy. The approval that was being sought by AECL was for the "concept" only, and did not require that AECL identify a site or prove that it would not cause harm where it was eventually to be located. By the end of the eight year public process, they were still undecided as to specifics such as site location and disposal method.

The AECL concept was referred to the Minister of Environment by the Minister of Energy, Mines and Resources in 1988, and a Panel was appointed the same year. The Panel held scoping hearings in 1990, and issued guidelines for an Environmental Impact Statement in 1992. AECL released its Environmental Impact Statement in the spring of 1994, and a nine month review period concluded with the Panel acknowledging the deficiencies of the EIS but refusing to issue a deficiency statement. Instead, the directed AECL to provide additional information, but did not require that it be provided until after the hearing had begun. The hearing was held in three phases (general, technical and community) from March 1995 to March 1996.

The environmental assessment review process included an eight member Panel and an equally sized Scientific Review Group, each appointed by the federal panel. There were a number of changes in Panel membership, most notably the resignation of a panel member between the first and second phases of the hearing, which was informally reported as being due to disagreements with either agency staff or the generally accepted protocol of not expressing personal views during hearing sessions.

The "responsible authority" Natural Resources Canada (initially Energy, Mines and Resources), maintained a constant presence throughout the hearing, and presented on several occasions, including on the final day of the technical sessions. There, director of Uranium and Fuel Waste Division Peter Brown presented NRCan’s "Nuclear Waste Policy Framework", a document which had been developed with only nuclear industry input. Environment Canada, regrettably, was absent from the process, with the exception of some very well prepared and comprehensive comments submitted during the review scoping exercise that identified a strong and productive role for Environment Canada which was never fulfilled. Atomic Energy Control Board staff were consistent participants and conducted themselves in a relatively neutral manner overall, raising relevant technical issues and concerns. Ontario Hydro was a key player, acting as co-proponent through much of the hearing and offering themselves as the future "implementing" agency from the first week of the hearing. Other organizations, such as the nuclear industry associations, the Royal Society and various professional groups associated with the nuclear industry, also participated. Each voiced similar support for the nuclear industry and expanded use of nuclear power.

The public interest was represented by a variety of church, women’s, environmental, youth and peace organizations. These participants were vastly outnumbered by proponents particularly at the"roundtable" discussions convened by the Panel in the Phase I hearings. The sessions were also unrecorded, and considered by many public participants to be lacking in either fairness or accountability. In the phase III hearings, hundreds of presentations were made in 17 communities from Saskatchewan to New Brunswick, where the general public outnumbered the nuclear industry several fold.

In March 1997 the Federal Review Panel issued its reports. Its key conclusions: AECL had failed to prove that the "concept" of burying nuclear waste in the Canadian Shield was safe or acceptable. In brief, the Panel found that the AECL concept was still just that - a concept, with some theoretical possibilities, but with no demonstration of safety or acceptability in a real-world analysis. The Panel made a number of recommendations, all of which emphasized the need for a strong public role in future development and evaluation of nuclear waste management options and the necessity of developing a social and ethical framework for use in assessing options. The Panel recommended that an independent agency be established with a board of directors with broad representation, and that the waste management option must gain broad acceptability before any search for sites begins.

The government quietly released its response to the panel report in December 1998. The 17-page response rejected the Panel conclusions in a number of key areas. The government announced that it would create a new agency, but its board of directors would be made up only of nuclear industry representatives. Public involvement in evaluating nuclear waste management options would be restricted, and discussions with communities in "siting territories" could begin immediately as part of "building acceptability" for a waste management option (rather than following broad public acceptance as the review panel had recommended). Perhaps the most revealing aspect of the government response - and the most damning - was its repeated declarations that acceptance of a nuclear waste management option will "support nuclear energy, and particularly the CANDU option, as a sustainable supply option for electricity". The future of the nuclear industry was specifically excluded from the 10-year review. Securing the nuclear industry’s future is the priority message in the government response.

Key Issues

CEAA Communications:

Having transcripts available electronically (through CEAA) allowed a broader group to follow the hearings in a detailed manner, allowing some to make particularly effective interventions during the final phase of the hearings.

Terms of Reference:

The terms of reference specifically excluded any discussion of energy policy - the continued production of nuclear industry - and any discussion of military use of nuclear technology. These were key and central questions; a separate review on energy policies was announced as a "parallel" process at the time of the review’s announcement, but was begun and cancelled in 1990 with no discussion having taken place.

EIS Deficiencies:

The EIS was deficient, and acknowledged as such by the Panel, but the deficiencies were not addressed before the hearing began; this not only was a perversion of the EARPGO process, but created problems within the review process.

Participant Funding:

Participant funding was grievously inadequate. Funds were awarded for scoping and then for the hearing itself, but in the second instance, the funding committee - with no explanation provided - allocated only a portion of the available funds, despite the requests exceeding the available amount several fold. Advance preparation and planning were made very difficult, especially when the funds were then allocated in a third round of funding.

Rules of Evidence:

The proponent frequently filed new or differently presented information on the very day of its examination in the technical hearings. There were seldom enough copies for all of the intervenors, making it more difficult for intervenors to examine the evidence or to prepare questions. The proponent was required to indicate only in very broad terms what evidence they would be presenting, and documents and oral presentations/responses frequently relied on documents which were not available.

Notice and Access:

The Agency relied almost exclusively on a limited mailing list for providing notice about the review, and in the period between scoping and the hearings, removed a large number of participants from their mailing list. Newspaper advertising was limited, and community mechanisms for providing public notice were not generally utilized. Phase I and Phase II hearing were held in Toronto, outside the area of the undertaking, resulting in limited access to those most likely to be affected by the outcome. All Phase I and Phase II sessions were held during the day, further limiting public access to those able to take time away from their workplace. The limited funds provided through the Participant Funding demanded that groups limit their participation in Phase I and Phase II sessions to one representative, often for only some of the sessions.

Time Allocations:

Presentations by the public participants were limited in time (20 minutes in Phase I, 15 minutes in Phase II, and 10 minutes in Phase III), requiring participants to limit their comments and prioritize issues to be addressed. This was particularly of concern in Phase II, where there were a large number of complex and critical issues to be addressed, and organizations could only afford to have one representative (at most) in attendance, so all issues had to be addressed in only 15 minutes.

SRG Constraints:

A Scientific Review Group was established to provide technical advice to the Panel, but had been directed to limit remarks to its terms of reference, which excluded social, ethical or economic issues. This placed the SRG in the position of having to abstain from remarking on what they had identified as a key issue in the "concepts" achievability, i.e. costs and financial estimates.

Decision:

The government response rejected the key panel conclusions.

The Environmental Assessment of McClean Lake

Overview

The fundamental recommendation of the Report of the Joint Federal-Provincial Panel on McClean Lake, Saskatchewan, upon which all other recommendations were hinged, called for the Cogema’s McClean Lake Mining Project to be delayed five years. The Panel's reasoning was based on the need to obtain more experience with previous tailings management facilities in the surrounding area and more comprehensive community health information. The delay would also allow employment opportunities for Northerners to be maximized through increased training and education efforts, provide greater opportunity for further discussion of the larger ethical/environmental issues surrounding uranium mining, and allow more time to assess the cumulative biophysical and socio-economic impacts (Joint Federal-Provincial Panel Report, 1993:41).

The federal and provincial governments, as well as the Atomic Energy Control Board (AECB) repeatedly ignored the recommended five-year delay. Despite both the Panel's and the public's criticism of Cogema's failure to provide an adequate tailings disposal plan, the AECB began considering granting Cogema a license to begin constructing the JEB pit tailings management facility at McClean Lake for the summer of 1998.

On February 2^nd, 1999, after several routine inspections revealed major flaws in the filer rock at the tailings management facility, the AECB informed Phillip Penna of the Inter-Church Uranium Committee (ICUC) that it was "highly unlikely" the McCLean Lake project would be licenced at the February 24, 1999 AECB Board Meeting.

Key Issues

Before approval, conditions need to be set:

Before a uranium mine receives overall government approval the Review Panel's recommendations must be met. Where serious environmental, health and ethical concerns abound, such as those identified by the McClean Lake Joint Panel, they must be dealt with prior to the mine receiving overall approval.

Revenue Sharing Recommendations not implemented by governments:

One of the Panel's conditions for mine approval after the five year moratorium had expired was: "agreement on a form of revenue sharing that is acceptable to the majority of the impacted communities" (Joint Federal-Provincial Panel, 1993:43).This condition of approval has not been implemented.

Failure to follow Panel Recommendations:

Governments and regulators are not directly accountable to the environmental assessment review process and those who participate in it. In approving the McClean Lake mine after the panel recommended a five-year delay in mining, the governments and AECB showed little respect for the Review Panel’s findings or the public's involvement in the process. As a consequence, the public became unwilling to participate in future Panels unless the Panel recommendations were implemented.

Need for strong regulation of uranium industry:

There is a heavy onus on governmental regulatory systems to ensure safety and environmental protection in the uranium industry. This responsibility is problematic due to the current lack of political will to impose regulatory restrictions on economic development activities at both levels of government (Saskatchewan Environmental Society, 1998). As both federal and provincial governments downsize their environmental protection capacities, regulatory monitoring and enforcement capacities are reduced, and consequently, could lessen governments' and the public's knowledge of whether proper mitigation measures and safety precautions at tailing sites are implemented and performing to proper standards.

Critical issues surrounding uranium mining/production:

Cogema is 90% owned by the French Atomic Energy Agency, the agency responsible for French nuclear weapons production and testing. During environmental assessments of all uranium mines in Northern Saskatchewan both levels of government continually declared that a discussion of the connection between uranium mining and nuclear weapons is outside the mandate of the environmental assessment panels. Governments have stuck to this position despite the fact that every report they received from a Panel raised serious concerns about the nuclear weapons issue. Such concerns should be within the terms of reference.

Cogema has failed to provide an adequate tailings disposal plan for the McClean Lake Mine. Cogema's failure in this regard is clearly seen in the review of the Cigar Lake and Midwest proposals. With the magnitude of long-term health and environmental impacts involved in uranium mining, Cogema's regulatory indifference and lack of technical competence to construct and maintain adequate tailings facilities should be sounding the alarm to governments that mine approval must be based on Panels' findings and not political expediency. Unfortunately, this is not the case at present.

Because of the long-term hazards associated with uranium tailings, the mine site at McClean Lake requires monitoring long after the mine has closed, far more than the currently legislated corporate responsibility of fifteen years after decommissioning. This clearly requires long-term funding and the Panel outlined various ways of ensuring these funds will be available. Possibilities included insurance, performance bonds, trust funds, or an irrevocable letter of credit.

Cheviot Coal Mine

Overview

In March 1996, Cardinal River Coals Ltd. (CRC) announced plans to develop a large open-pit mine coal mine in the foothills of the Rocky Mountains, just south of Hinton, Alberta. The proposed mine area was 23 km by 3.5 km and was located just 2.8 km from Jasper National Park, a United Nations World Heritage Site. CRC required approval under both federal and provincial law for the construction, operation and decommissioning of the open-pit mine prior to development. This led to a Joint Alberta Energy and Utilities Board and Canadian Environmental Assessment Agency Review Panel being established to perform the environmental assessment. Despite serious gaps and implications arising in the assessment process, such as CRC’s failure to complete a cumulative effects assessment and the Panel’s failure to exercise their legal capacities under the Canadian Environmental Assessment Act (CEAA) to have such an assessment completed, the Panel recommended the project proceed. The following analysis looks at some of the failures, and successes, in the approval of the Cheviot mine project. On October 2^nd, 1997, the Federal Government approved the Joint Panel’s report on the Cheviot Project.

Key Issues

Requirements of the CEAA must be satisfied during the Hearings Process:

CEAA requirements should not be dealt with through permitting at the provincial level. In the case of Cheviot, most environmental impact assessments, all cumulative effects assessment, and virtually all design and assessment of mitigation measures were left to the provincial permitting stage, and thus would be dealt with only after the mine had been given overall approval. In the Panel’s report this often resulted in monitoring being passed-off as a replacement for doing the assessments and planning mitigation. Recently, the province of Alberta set-up two committees to coordinate provincial permitting in accordance with the Panel’s and the federal government’s conditions, but the public still has no idea how they are going to be heard, or what federal involvement in the permitting will be. Despite a lack of public input and transparency in the permitting process, the province issued permits to build the transportation corridor to the mine in December, 1997.

Crucial baseline information had not been collected:

The baseline information crucial to completing important environmental effects assessments and cumulative impact assessments had not been collected for the following areas: water quality, minimum in-stream flow requirements, Harlequin ducks, carnivores, and wildlife movement. These areas of deficiency were identified by federal and/or provincial agencies. In order for this baseline information to be valid, it must be collected before further disturbance occurs in the area, and most certainly before a decision is made on the present applications before the Alberta Energy and Utility Board (AEUB).

Panel Failed to Complete Cumulative Effects Assessment of Cheviot Project:

In its report the Joint Review Panel stated that Cardinal River Coals Ltd. (CRC) was unable to obtain the requisite information from surrounding industries to complete a cumulative environmental assessment (p. 56). This perception of events was reiterated/confirmed by the federal government in its response to the Panel’s report. Under CEAA the Panel had a clear legal mandate to obtain required information from neighbouring developments in order to complete their cumulative effects assessment (CEA). The Panel chose not to complete a CEA. No CEA was completed despite the fact that CRC owns the nearby Luscar mine, and thus would – at the very least -- have the information available to undertake a cumulative effects assessment based on Luscar and Cheviot. Again, the Panel chose not to pursue this possibility. (Canadian Nature Federation 1997, 1998).

The federal government acceptance of the Panel’s position that cumulative effects assessment could be undertaken in stages while the project is developed was problematic, especially in light of the fact that three federal departments – Fisheries and Oceans, Environment and Parks Canada – deemed the CEA of the Cheviot Project inadequate during the Panel’s hearings. This seriously compromised the importance of the "precautionary principle" to sustainable development in Canada – a stated purpose of the CEAA.

By accepting the Panel’s recommendation to approve the Cheviot Project prior to knowing the project’s cumulative environmental effects, the federal government violated CEAA. In addition, the federal government’s approval of the project appeared to contain no mechanisms to: (I) halt unacceptable cumulative effects if shown to occur; and/or (II) enforce requirements to redesign or abandon the project or phases of the project that are resulting in unacceptable cumulative effects.

The idea that the cumulative effects of a project can be evaluated while the effects are occurring is highly problematic given that the baseline conditions for effects evaluation will be made of up dramatically shifting environmental conditions (Canadian Nature Federation 1997, 1998).

Joint Panel for Cheviot Environmental Assessment:

A process needs to be implemented to ensure that the federal government appoints the Chair of the Panel, or at least half of the Panel members, in order to ensure the provisions of CEAA are properly respected throughout the assessment process. In the Cheviot case the Panel was heavily weighted towards provincial interests.

On January 30^th, 1998, in signing the Canada-wide Accord on Environmental Harmonization and its sub-agreement on Environmental Assessment, the federal government effectively reigned in CEAA through devolving many of its EA powers to the provinces. Accepting the Harmonization sub-agreement on Environmental Assessment’s "single-window" approach to EA, based on a "lead party" (Rodney Northey) being responsible for the administration of the assessment process according to their policies and procedures (Section 4.3), the provinces were allowed to largely determine their own EA process, even where areas of federal responsibility (e.g. fisheries) would be at stake.

This being said, the Joint EA Panel at Cheviot was able to -- at least in part -- counter the pro-development/anti-public participation provisions inherent in the Alberta Act. Under the public participation provisions in CEAA, the public was able to get standing at the Joint Panel EA hearings and thus more fully participate in Cheviot EA. CEAA also provided intervenor funding.

Alternatives to Open Pit Mining at Cheviot Site not Considered:

Although required by Section 16 of Act, the Joint Panel’ review only looked at other open pit mines in the Hinton area and failed to look at alternatives such as moving the Cheviot mine underground.

No Analysis of Public Need for the Cheviot Project:

No social cost/benefit assessment was done for the Cheviot mine. CRC refused to provide such basic information as the threshold volume of annual coal production needed to maintain mine viability. In failing to fulfill the requirement to look at alternatives to the project as required under CEAA, the Panel clearly opted for the understanding that energy development in Alberta is always in the public interest (as outlined by the AEUB legislation).

Advanced access to information for intervenors:

Intervenors were required to submit information the day the hearing started, barring the opportunity to counter the critical information provided during the hearing itself. Also, not enough time was given to intervenors to prepare – only two months from the time the Agency announced intervenor-funding to the time of the hearing date.

Department of Fisheries and Oceans’ Conditions for Permits:

The DFO failed to adequately address fundamental questions such as "Is adequate compensation possible?" and "Will additional mitigation or redesign options be explored?" by relegating concerns such as downstream effects of the mine and its effects on the water quality to: 1) alternative compensation strategies, and/or 2) monitoring programs. It is unclear during the permitting process whether CRC was obligated to develop additional mitigation or redesign plans, except in the case of water quality issues.

Failure of Federal obligations under National Park Act to Protect Jasper National Park:

In response to the Panel, the federal government recognized the potential for adverse effects on Jasper National Park and also recognized that further information was needed to determine the landscape conditions necessary for the survival of grizzly bear populations dependent on habitat within Jasper National Park and the Cheviot mine area. Despite these statements, the public was left with very little confidence in the federal government’s protective capacity.

Failure to meet international commitments:

Canada’s commitments to protect biodiversity under the IUCN’s Global Biodiversity Strategy, the Convention on Biological Diversity and also its obligations under the World Heritage Convention to protect the World Heritage values of Jasper National Park, were threatened through accepting the unmitigable damage to the habitat of grizzlies, other large carnivores, and fisheries represented in CRC’s development plan.

Smallboy Cree Not Allowed Full Participation in Environmental Assessment:

During the Panel’s hearings, the Smallboy Cree were not provided the opportunity for proper participation. In anticipation they would file a claim in the Cheviot area, the federal crown prosecutor informed Department of Indian and Northern Affairs officials that they should not respond to questioning by representatives of the Smallboy Cree.

BHP Diamond Mine

Overview

In December, 1994, the Department of Indian Affairs and Northern Development (DIAND) initiated an environmental review of the first diamond mine in Canada. BHP Diamonds Inc. proposed to develop the diamond mine in the Lac de Gras area of the NWT, an area of unsettled and overlapping land claims and a region where little industrial development had previously occurred. The assessment process was seen as important because the handling of the BHP proposal would pave the way for a plethora of other mining and associated infrastructure projects. Sierra Legal Defence Fund lawyer, Larry Reynolds, commented that "the standard set in this review will significantly influence how mining and other development proposals are handled in the future."

The proposal included the draining of lakes and deposition of more than a million tonnes of tailings into a fragile arctic ecosystem. Due to the potential for significant economic benefits, combined with Aboriginal and environmental concerns with the project, the proposal attracted considerable attention in the North and throughout Canada. After a technical NWT Water Board Hearing in 1996 , BHP was issued a water license. By September 1997, after considerable correspondence, the DFO, DOE and DIAND outlined numerous concerns with BHP’s Environmental Management Plan. Subsequently the DFO carried out an investigation into BHP’s suspected violations of the Fisheries Act.

At the time of the BHP proposal, the environmental assessment (EA) process was in a state of transition in Canada. The project was reviewed under the Environmental Assessment and Review Process Guidelines Order (EARPGO), however, the Canadian Environmental Assessment Act replaced EARPGO soon thereafter. When announcing the review, the Minister of the Environment noted it would be conducted in the "spirit" of the CEAA.

In some parts of the western Northwest Territories, CEAA is likely to be replaced by the Mackenzie Valley Resource Management Act. Problems encountered during the transitional phase from EARPGO to CEAA should be reviewed and addressed now, so that constructive criticism can lead to improvements in the evolving EA process.

Key Issues

The EA Process was unbalanced and unfair:

There was: 1) insufficient funding and expertise to prepare interventions; 2) insufficient time during public hearings to present intervenor evidence - just 15 minutes each; 3) inadequate time to review some of the EIS data: intervenors had only days to analyze the new data before the hearings commenced.

The EA Process was not credible:

There was: 1) a lack of an adequate technical review. The Panel Chair declared it was not a technical review and the Panel did not retain independent expertise; 2) insufficient time for presentations and questioning at the technical sessions; 3) a lack of comprehensiveness and rigour - the fundamental purpose of an EA review 4) too little attention was paid to region-wide cumulative effects, e.g., implications of this project and others for ongoing land claims negotiations, land selection, and protected areas, in light of future development in this region.

Certainty in the EA process:

The opinion of many participants was that the panel’s recommendations were too general to be very helpful (CIRL, 1997). The Canadian Arctic resources Committee (CARC) characterized the recommendations as "weak and insipid." This view was supported by the actions of the Minister of DIAND, who later required that legally binding agreements be worked out with BHP.

A second difficulty was that the Panel Chair announced, during the course of the BHP hearings, that the EA panel hearing was not a technical review, per se. The question then became, "If the BHP review was not intended to examine technical aspects of the project, under whose auspices and when will such a review take place?" (CARC, 1996a).

Finally, there were a number of supplementary agreements created outside of the normal regulatory requirements, e.g., the Environmental Agreement and IBAs. The establishment of these agreements was at the Minister's discretion, creating a great deal of uncertainty with the process. Furthermore, without a statutory basis for the Environmental Agreement, there was no assurance that environmental protection would be guaranteed. One of the requirements of the Environmental Agreement was that BHP submitted Environmental Management Plans (EMPs) for the construction phase of their project by early February 1997. These plans, when reviewed by the federal and territorial government, were revealed to have several areas of weakness. Several problems were identified even after revised plans were submitted by BHP.

The necessity of establishing and improving the rigour of EA reviews:

The CARC Review (1996b) pointed out that papers prepared for the CEAA articulated a narrow concept of efficiency, whereby a process was deemed efficient if proposals were passed through the permitting stage as expeditiously as possible. The papers failed to take into account social benefits. Also, if a proper technical review were undertaken earlier in the process, BHP could have demonstrated to the public that they 1) had conducted the appropriate studies to identify the impacts and 2) had plans in place regarding the mitigation of the potential impacts. However, by not doing this, the lack of a rigorous and comprehensive environmental review resulted in an inefficient use of BHP and government resources.

The government should protect public, not industry interests:

Both federal and territorial governments took a firm pro-development stance from the outset. Kevin O’Reilly of CARC noted that both DIAND and GNWT representatives said they were in favour of the project on the opening day of the hearings in Yellowknife. Some government officials were of the opinion "that the rigour of government’s technical review and public scrutiny of the BHP project was in certain respects compromised as a result of explicit or implicit policy directives that government should not be putting obstacles in the way of approval." (CIRL, 1997).

The government should play a major role in the technical assessment process:

Typically, it is the role of government to assess the project application. However, some participants were of the opinion that the most rigorous scrutiny of the application was supplied by the interventions of the Dogribs and their technical and legal advisors (CIRL, 1997).

Intervenor funding:

Intervenors did receive funding for the EA Panel Review, however had it been known that the EA panel was not conducting a technical review, intervenor funding could have been focused on the Water Board hearing, where funding was not provided.

More resources should go into government participation in all stages of the EA process:

CARC rated the performance of some federal departments during the EA review as "appalling." However, it is also the opinion of CARC that government downsizing should be seen as the culprit for what is viewed as a declining capability to regulate resource development in the North. Even with independent monitoring bodies, it is the responsibility of government to enforce environmental regulations and to protect the public interest.

Permits should not go ahead without the required permits, approvals and compliance:

At the time that the land use permit was issued the government had no information from BHP on their monitoring programs, or mitigation strategies for potential impacts occurring during the construction phase. By the time BHP submitted their Environmental Management Plan (EMP) for the Construction Phase, construction was well under way. The government should have demanded that BHP get their revised plan submitt