Vol. 151, No. 48 — December 2, 2017

Regulations Amending the Metal Mining Effluent Regulations

Statutory authority

Fisheries Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Mine Arnaud (see footnote 1) (the proponent) proposes to operate an apatite mine located in the Municipality of Sept-Îles, Quebec. Mine Arnaud will be subject to the Metal Mining Effluent Regulations (MMER) because titaniferous magnetite (iron and titanium oxides), a metal by-product, will be generated from the apatite concentration process. Mine Arnaud has chosen to store this magnetite by-product separately in order to eventually recover it for resale.

The proponent intends to use water bodies frequented by fish to dispose of the mine waste that will be generated by the mining operations. Subsection 36(3) of the Fisheries Act (FA) prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by regulations under the FA or other federal legislation. The MMER, made pursuant to subsection 36(5) of the Fisheries Act, includes provisions to allow for the use of waters frequented by fish for the disposal of mine waste. Mine waste disposal in these waters can only proceed if they are listed in Schedule 2 of the MMER.

Background

Metal Mining Effluent Regulations (MMER)

The MMER, which came into force on December 6, 2002, prescribe the maximum authorized limits for deleterious substances in mine effluent in Schedule 4 (e.g. copper, cyanide, and total suspended solids), and require that mine effluent not be acutely lethal to fish. (see footnote 2) The MMER further stipulate that companies must sample and monitor effluents to ensure compliance with the authorized limits and to determine any impact on fish, fish habitat and fishery resources. Each year, 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 the disposal of mine waste can only be authorized through an amendment to the MMER, in which case the water body would have to be added to Schedule 2 of the Regulations. As of August 2017, there were 33 water bodies listed in Schedule 2 of the MMER.

The proponent must demonstrate that the disposal of mine waste (including effluents) in water bodies frequented by fish is the most appropriate option from an environmental, technical and socio-economic perspective.

Pursuant to section 27.1 of the MMER, when a fish-frequented water body has been added to Schedule 2, the Regulations require the development and implementation of a fish habitat compensation plan (see footnote 3) that will offset the loss of fish habitat that would occur as a result of the use of the fish-frequented water for mine waste disposal. The owner or the operator of a mine is also required to present an irrevocable letter of credit to ensure that funds are in place to address all elements of the fish habitat compensation plan.

Mine Arnaud project

The project is located to the north of Arnaud Township in the Municipality of Sept-Îles in the North Shore administrative region. The proposed mining project consists of an open-pit mine, an ore processing plant, and mine waste impoundment and storage areas, including a cell for titaniferous magnetite, a by-product of the ore processing.

The project will also involve the relocation of approximately 8 km of railway line and the construction and use of storage, handling and loading facilities at the Port of Sept-Îles. The operating life of the mine is estimated at 31 years.

Mine Arnaud would have an annual extraction rate of approximately 11 million tonnes of ore and a production rate of apatite concentrate of approximately 1.2 million tonnes a year (Mt). Approximately 330 direct jobs will be created during the operation of the mine. Mine Arnaud intends to spend more than $30 million annually in salaries and benefits, and estimates that the total investment will be approximately $750 million for this mine.

Management of mine waste for the Mine Arnaud project

The operation of the pit will generate 359.4 Mt of ore, 159.9 Mt of waste rock and 63.9 Mt of overburden over a period of 31 years. Some of the waste rock and overburden could be used for construction purposes (dams, roads, etc.) on the mining site and for its restoration, and some will be placed in stockpiles. These stockpiles will have, respectively, dimensions of approximately 145 m in length by 150 m of width (area of temporary ore disposal), and 1 550 m of length by 250 m of width (area of low-grade ore content disposal).

Five cells bearing a total capacity of 153 million cubic metres (Mm3) will be used to dispose of flotation tailings and a cell of 34.2 Mm3 shall be used for magnetic waste. Only two cells will be active at the same time. The cell that will receive the magnetic waste shall be in operation during the lifetime of the mine, whereas for the flotation tailings, the five cells shall receive the mining waste on a rotating basis. The total footprint on the soil of the tailings management facility will be 713.9 hectares.

The proposed mine waste disposal areas will destroy five water bodies, including many streams and ponds frequented by fish. In order to dispose of mining waste in these water bodies, they must be listed in Schedule 2 of the MMER.

The total area of the water bodies that are proposed for addition to Schedule 2 of the MMER is approximately 7.44 hectares. The species of fish that are found therein or are potentially present in these water bodies are brook trout and nine-spined stickleback.

Mine Arnaud project environmental assessment

A comprehensive study-level environmental assessment was carried out on this project under the Canadian Environmental Assessment Act (see footnote 4) (the former Act).

On February 23, 2016, the Minister of the Environment announced that the proposed Mine Arnaud project is not likely to cause significant adverse environmental effects, taking into account mitigation measures proposed in the Comprehensive Study Report.

The project has also undergone an environmental review by the province under Chapter I of the Quebec Environment Quality Act, and an order respecting the issuance of a certificate of authorization to Mine Arnaud Inc. was published on March 18, 2015.

The proponent has agreed to implement mitigation measures in order to reduce the effects that the project could have on the environment. The proponent also proposes the implementation of an environmental management program that includes monitoring of several of the valued biophysical and human components assessed, as well as an emergency response plan in the event of accidents or spills.

Objectives

The objective of the proposed Regulations Amending the Metal Mining Effluent Regulations (proposed Amendments) is to enable the deposit of mine waste in five fish-frequented water bodies that are part of the Mine Arnaud project.

Description

Proposed regulatory amendments

The proposed Amendments would add the following water bodies to Schedule 2 of the MMER (see Figure 1):

These water bodies are located within the Hall Lake and rivière des Rapides watersheds.

The construction of mine waste disposal areas at the selected sites will cause the destruction of water bodies covering an area of approximately 7.44 hectares. Mine Arnaud (and all future owners or operators) would be required, under section 27.1 of the MMER, to implement a compensation plan to offset the loss of the fish habitat resulting from the use of these water bodies to dispose of mine waste. In addition, Mine Arnaud would be required to submit an irrevocable letter of credit guaranteeing the availability of funds in the event the owner or the operator does not implement all or parts of the fish habitat compensation plan.

Figure 1: Location of the water bodies proposed for listing to Schedule 2 of the MMER

arte - Des renseignements complémentaires se trouvent dans les paragraphes adjacents.

Proposed fish habitat compensation plan

The fish habitat compensation plan was reviewed and accepted by the Department of Fisheries and Oceans (DFO). The measures that will be implemented by Mine Arnaud to offset the loss of fish habitat caused by the construction of the tailings management facility, impoundment area, and screening mound consist of introducing the brook trout into a fish-free lake, called Unnamed Lake-1, located in the Matimek Controlled Harvesting Zone (CHZ) (see footnote 5) at approximately 150 km northwest of Sept-Îles, and designing spawning habitat in order to ensure that the introduced population of brook trout are selfsufficient. The offsetting of Unnamed Lake-1 shall permit the development of the northern part of the CHZ territory and increase the fishing offerings for brook trout in this sector. In addition, the layouts shall permit the provision of quality spawning sites in an environment where there are few.

Mine Arnaud will also implement a follow-up program for the compensation plan in order to assess the effectiveness of the fish habitat compensation plan and to ensure that the stated objectives have been attained. This follow-up program will verify the physical integrity of the designs and the brook trout population in the designed environments.

“One-for-One” Rule

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

Small business lens

The proposed Amendments did not trigger the small business lens since Mine Arnaud Inc., which owns and operates the Mine Arnaud project, is not considered a small business. (see footnote 6)

Consultation

The Department of the Environment held consultations on the proposed Amendments to the MMER associated with the Mine Arnaud project. These consultations were held with the general public, environmental organizations, and other interested parties, and are summarized below.

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

As part of the regulatory process, the Department of the Environment held a public consultation period from February 24 to March 31, 2016, including telephone conferences on March 22 and 23, 2016. The purpose of these consultations was to consult with First Nations communities and the public in relation to the alternative assessment report and the fish habitat compensation plan prepared by the proponent. The consultations were followed by a 30-day comment period.

Comment: A local organization expressed its support for the Mine Arnaud project. It believes that the project is beneficial for the region and that it takes the region’s environmental, economic, and social concerns into account.

Comment: Environmental non-governmental organizations have voiced their concerns about the mine project, and in certain cases, their opposition to the entire project.

Response: This opposition is not specific to the proposed Amendments but targets the potential impact of the mine on the Sept-Îles Bay. These concerns were addressed in the comprehensive study report prepared by the Canadian Environmental Assessment Agency.

Comment: Some stakeholders have indicated that there is a lack of coordination of the consultation processes carried out by the Agency, the Department of Fisheries and Oceans, and the Department of the Environment.

Response: The Department of the Environment has taken into consideration this comment and acknowledges that, in certain cases, a more concerted consultative approach would be preferable as it relates to the initiatives carried out by the Government of Canada. It is important to note that these consultations carried out by the Agency as part of the federal environmental assessment (EA) process and the consultations carried out by the Department of the Environment concerning the proposed Amendments to the MMER for the disposal of mine waste constitute separate processes. In addition, the application for tailings impounded areas following the EA decision can only proceed to the regulatory stage if the decision taken pursuant to the environmental assessment is that the project can be carried out, in whole or in part, past the EA stage. If the government decides that the project should not proceed, no further action is taken with respect to the possible MMER amendment.

Consultations with Innu First Nations

The Uashat mak Mani-Utenam Innu (ITUM) First Nation claims Aboriginal title, Aboriginal rights and treaty rights to a territory that includes the entire area affected by the Mine Arnaud project. This comprehensive land claim was accepted for negotiation by the Government of Canada in 1979, but negotiations have been inactive since 2008. The project is located very close to the community (10 km), and the ITUM states that it strongly values the territory that could be adversely affected by the project. Although the Innu First Nation of Matimekush-Lac John (NIMLJ) is located approximately 500 km north of the project, it shares the land claim of the ITUM. The two communities have common ancestors and still have family ties today.

Since the launch of the consultations on the proposed Amendments to the MMER in February 2016, the Department of the Environment attempted to engage with the ITUM and the NIMLJ on multiple occasions to invite the members of these First Nations to take part in the consultative process. The First Nations did not respond to these invitations nor provide comments concerning the proposed Amendments until February 2017.

In February 2017, following another attempt by the Department of the Environment to communicate with the ITUM and the NIMLJ concerning the proposed Amendments to the MMER, NIMLJ shared, in writing, its concerns with regard to the fish habitat compensation plan proposed by Mine Arnaud. More specifically, NIMLJ denounces the use of water bodies frequented by fish for the disposal of mine waste and opposes to the concept of compensation. In addition, this First Nation indicated that it was not consulted on the selection of a compensation plan proposed by Mine Arnaud, that the priority of the plan is based on sport fishery, and that the Aboriginal fishing rights of the Innu have been ignored.

The Department of the Environment responded by highlighting the consultations that took place in 2016 to which the First Nations had been invited but in which they chose not to participate. The Department of the Environment offered to hold a teleconference with NIMLJ to discuss the compensation plan and the proposed Amendments to the MMER. NIMLJ did not respond to this invitation.

In response to comments specifically concerning the compensation plan, the Department of the Environment indicated that the development and the implementation of the compensation plan to offset the loss of fish habitat associated with the disposal of mine waste constitute a requirement pursuant to the MMER. In this regard, the proponent presented to the Department of Fisheries and Oceans numerous project proposals that were not retained as they were found to be irrelevant. The compensation plan in the Unnamed Lake-1 of the Matimek Controlled Harvesting Zone was the only plan that met the four guiding principles of DFO’s Fisheries Productivity Investment Policy. The fish habitat compensation plan is essentially designed to ensure fisheries productivity. It is important to note that, given that the destruction of the fish habitat caused by Mine Arnaud’s activities will primarily affect the Matimek Controlled Harvesting Zone, offsetting efforts within this zone were prioritized.

NIMLJ also indicated that access conflicts exist between the Innu and the Matimek Controlled Harvesting Zone. These concerns are outside of the scope of the proposed Amendments.

The Department of the Environment will continue with its efforts to consult with the First Nations and to respond to their concerns following the prepublication in the Canada Gazette, Part I.

Rationale

Regulatory and non-regulatory options for mining waste disposal

Non-regulatory options include the disposal of mining waste in a manner that would result in no direct impacts on fish-frequented water bodies. The geographic location of the disposal areas in a sector where many small bodies and streams are found represented a challenge for the proponent in order to completely avoid all of these waters while maintaining the priorities of the stakeholders and those of the proponent.

An alternatives assessment for the disposal of mine waste was carried out by the proponent during the federal environmental assessment process of the mining project. This analysis is necessary given that the disposal of mine waste would affect fish-frequented water bodies. This analysis was carried out as per the Guidelines for the Assessment of Alternatives for Mine Waste Disposal of Environment Canada (Guidelines, 2013).

The report, entitled Evaluation of Alternatives for the Storage of Mine Waste (Mine Arnaud Project), was made public as part of the public consultations on the proposed Amendments.

The basic selection criteria used by the proponent to determine viable options for the mine waste disposal were as follows:

Mine Arnaud has chosen to construct a tailings management facility consisting of cells for which the operational period will vary from 1 to 16 years except for the cell containing magnetic waste. The purpose of the cell-type design is to allow for the progressive restoration of the cells once they have reached capacity, as well as to enable the gradual return of local wildlife and vegetation without waiting until the end of the mine’s life.

Based on the above-mentioned criteria, Mine Arnaud has identified six possible alternatives (see Table 1).

Table 1. Proposed alternatives identified by the proponent

Alternative

Localisation

A*

Tailings management facility north-west of the concentrator

B

Tailings management facility north of Hall Lake and at the border of the basin flowing from Rapids Lake

C

Tailings management facility north of Hall Lake, to the west of Alternative D

D

Tailings management facility north of Hall Lake between Alternatives B and C

E

Tailings management facility situated between the concentrator and Hall River

F

Tailings management facility situated in the humid environment west of Hall River

* Selected option

A preliminary screening of alternatives was made based on the following criteria: (1) obstruction due to the additional increased costs; and (2) obstruction due to land tenure. Following this analysis, only tailings management facilities A and E did not pose major obstructions to the mine project. These two sites were then characterized based on environmental, technical, economic, and socio-economic components.

In addition, the options north of Hall Lake did not have any environmental or socio-economic benefits.

Alternatives A and E were then characterized based on environmental, technical, economic, and socio-economic components. Through this characterization process, it was determined that the option to maintain a limited footprint around the pit and mine facilities appeared to be most advantageous overall. As soon as a disposal site was moved further from the pit and concentrator, a number of environmental, technical, economic, and social drawbacks became negative elements that affected the acceptability of the project. The tailings management facility at Site A was the most advantageous, even though certain water bodies frequented by fish had to be destroyed.

Moreover, Mine Arnaud proposed a mitigation measure to reduce noise and landscape impacts, namely the construction of a screening mound, such as what is found in many operations located in inhabited areas. There were no alternatives in terms of location of the screening mound, but localized options were studied.

Of the two options studied, the result remained the same, i.e. the destruction of a fish-frequented water body. This loss of fish habitat has been accounted for and considered in the offsetting plan proposed by the proponent.

At the same time, in order to dispose of mine waste in fish-frequented water bodies, the latter must be added to Schedule 2 of the MMER.

Analytical framework

The proposed Amendments would allow for the listing of the proposed fish-frequented water bodies to Schedule 2 of the MMER, so that they can be used for the disposal of mine waste from the Mine Arnaud project.

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

Environmental impacts

It is estimated that the construction of the tailings management facilities, the accumulation basis and the screening mound would result in the loss of 2.05 ha of watercourses as well as 5.39 ha of fish-frequented water bodies, for a total loss of 7.44 ha of fish habitat.

Most of the water bodies located within the footprint of the tailings management facility, impoundment area, and screening mound generally support either brook trout or ninespine stickleback, or both species together.

The brook trout is a species used in sport fishing, especially within the Matimek Controlled Harvesting Zone. According to representatives from the Matimek Controlled Harvesting Zone and a user of the territory, this sector of the mining project is not frequented by fishing activities, as the lakes and water bodies are of little value for this purpose and the sector is difficult to access.

The loss of fish habitat will be offset by the development and 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 Mine Arnaud to offset the loss of fish habitat that will result from the release of deleterious substances from the deposit of tailings is appropriate in that it meets the guiding principles of DFO’s 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, including monitoring of Mine Arnaud’s participation in the compensation plan for the lake trout population of Unnamed Lake-1. These incremental costs will be low given that the Department of Fisheries and Oceans is planning to conduct site visits and monitoring in the context of other authorizations under the Fisheries Act. (see footnote 7) Furthermore, these incremental monitoring activities, and associated costs, will only occur during fish habitat compensation plan implementation, and will not continue throughout the life of the mine waste disposal areas.

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

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

Costs to business

The proposed Amendments would result in additional costs for Mine Arnaud associated with the implementation of the fish habitat compensation plan.

The cost of the habitat development work provided for in the compensation plan is estimated at $38,099. (see footnote 8) This amount would cover the activities for the introduction and stocking of fish and the follow-up reports and activities. This estimate does not include the costs of compensation plan activities that have already been implemented (i.e. the development of spawning habitat and the initial fish introduction and stocking), which are estimated at $28,400.

Strategic environmental assessment

The listings of waters frequented by fish 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 will be no net loss of fish habitat.

Implementation, enforcement and service standards

The proposed Amendments would enable Mine Arnaud to use fish-frequented water bodies for the disposal of mine waste.

Given that 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 MMER and the Fisheries Act would include, among other inspection activities, site visits, sample analyses, review of fish habitat compensation plans and related reports associated with the proposed Amendments.

If there is evidence of an alleged offence 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 exercise of enforcement and prosecutorial 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 9)

Contact

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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 36(5) of the Fisheries Act (see footnote a), proposes to make the annexed Regulations Amending the Metal Mining Effluent Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Chris Doiron, Manager, Mining and Processing, Industrial Sectors, Chemicals and Waste Directorate, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-420-7381; email: ec.mmer-remm.ec@canada.ca).

Ottawa, November 23, 2017

Jurica Čapkun

Assistant Clerk of the Privy Council

Regulations Amending the Metal Mining Effluent Regulations

Amendment

1 Schedule 2 to the Metal Mining Effluent Regulations (see footnote 10) is amended by adding the following in numerical order:

Item

Column 1

Water or Place

Column 2

Description

38

A portion of an unnamed tributary to Petit lac du Portage, Quebec

A portion of an unnamed tributary to Petit lac du Portage located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 465 m portion of the tributary to Petit lac du Portage extending southwest and upstream from the point located at 50°16′00.90″ north latitude and 66°33′42.71″ west longitude to the point located at 50°16′06.00″ north latitude and 66°33′31.55″ west longitude and covering an area of 0.233 ha.

39

An unnamed headwater pond of ruisseau Clet and its unnamed tributaries, Quebec

An unnamed headwater pond of ruisseau Clet located at 50°15′15.82″ north latitude and 66°33′13.6˝ west longitude and covering an area of 2.486 ha, approximately 15 km northwest of the town of Sept-Îles, Quebec, and

(a) a 471 m portion of its unnamed tributary extending upstream from the point located at 50°15′18.37″ north latitude and 66°33′24.01″ west longitude to the point located at 50°15′20.27″ north latitude and 66°33′13.51″ west longitude and covering an area of 0.117 ha; and

(b) a 76 m portion of its unnamed tributary extending upstream from the point located at 50°15′11.97″ north latitude and 66°33′22.57″ west longitude to the point located at 50°15′12.82″ north latitude and 66°33′20.66″ west longitude and covering an area of 0.033 ha.

40

A portion of ruisseau Clet and its unnamed tributaries, Quebec

A portion of ruisseau Clet, and its unnamed tributaries, located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 1897 m portion of ruisseau Clet extending southeast and downstream from the outlet of the unnamed headwater pond referred to in item 39 to the point on ruisseau Clet located at 50°15′11.26″ north latitude and 66°32′15.99″ west longitude and covering an area of 0.850 ha.

41

An unnamed watercourse that is a tributary to Rivière Hall, Quebec

An unnamed watercourse that is composed of interconnected streams and ponds and is a tributary to Rivière Hall and located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 910 m portion of the unnamed watercourse extending downstream from the point located at 50°14′52.33″ north latitude and 66°33′27.75″ west longitude to the point located at 50°14′39.67″ north latitude and 66°32′45.74″ west longitude and covering an area of 3.619 ha.

42

Portions of an unnamed creek, Quebec

Two portions of an unnamed creek located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely,

(a) the west portion of the creek extending for a distance of 253 m from the point located at 50°15′18.78″ north latitude and 66°29’52.43˝ west longitude to the point located at 50°15’13.76˝ north latitude and 66°29’46.60˝ west longitude and covering 0.0585 ha; and

(b) the east portion of the creek extending for a distance of 267 m from the point located at 50°15′19.58″ north latitude and 66°29′45.99″ west longitude to the point located at 50°15′14.18″ north latitude and 66°29′45.19″ west longitude and covering 0.0555 ha.

Coming into Force

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

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