Vol. 151, No. 20 — October 4, 2017

Registration
SOR/2017-197 September 22, 2017

FISHERIES ACT

Regulations Amending the Metal Mining Effluent Regulations

P.C. 2017-1173 September 22, 2017

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

Regulations Amending the Metal Mining Effluent Regulations

Amendment

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

Item

Column 1

Water or Place

Column 2

Description

34

A portion of an unnamed creek (locally known as Loslo Creek), and of its unnamed tributaries, that is tributary to Pinewood River, Ontario

A portion of an unnamed creek (locally known as Loslo Creek), and of its unnamed tributaries, that is tributary to Pinewood River, located approximately 65 km northwest of the town of Fort Frances, Ontario. More precisely, the portion extending southwards and downstream from the northernmost point of the creek at 48°53′6″ north latitude and 94°2′43″ west longitude to the point located at 48°50′24″ north latitude and 94°3′36″ west longitude.

35

A portion of an unnamed creek (locally known as Marr Creek), and of its unnamed tributaries, that is tributary to Pinewood River, Ontario

A portion of an unnamed creek (locally known as Marr Creek), and of its unnamed tributaries, that is tributary to Pinewood River, located approximately 65 km northwest of the town of Fort Frances, Ontario. More precisely, the portion extending southwards and downstream from the northernmost point of the creek at 48°52′12″ north latitude and 94°1′49″ west longitude to the point located at 48°51′18″ north latitude and 94°2′25″ west longitude.

36

A portion of an unnamed creek (locally known as Marr Creek), other than the portion referred to in item 35, that is tributary to Pinewood River, Ontario

A portion of an unnamed creek (locally known as Marr Creek), other than the portion referred to in item 35, that is tributary to Pinewood River, located approximately 65 km northwest of the town of Fort Frances, Ontario. More precisely, the portion extending southwards and downstream from the point located at 48°50′52″ north latitude and 94°2′11″ west longitude, for a distance of 1.85 km, to the point located at 48°49′53″ north latitude and 94°2′24″ west longitude.

Coming into Force

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Rainy River Project (the Project) is located in the township of Chapple, district of Rainy River, in northwestern Ontario, approximately 65 km northwest of Fort Frances and 420 km west of Thunder Bay. The mine is owned and being built by New Gold Inc. (New Gold). Construction of the mine began in May 2015, and the mine is scheduled to begin operation in September 2017.

The facility will include an open pit and an underground mine, an ore milling and processing facility, mine waste disposal areas, water management infrastructure, power transmission lines, a highway realignment and associated on-site infrastructure and buildings.

Parts of the mine waste disposal areas will destroy waters frequented by fish, and there will be a loss of 21.3 hectares (ha) of fish habitat. The disposal of mine waste in fish-frequented waters is currently prohibited under the Fisheries Act. Mine waste disposal in these waters can only proceed if they are added to Schedule 2 of the Metal Mining Effluent Regulations (see footnote 2) (MMER or the Regulations).

The Rainy River Project was subject to a federal environmental assessment (federal EA) conducted by the Canadian Environmental Assessment Agency (the Agency), which considered the full scope of the mine as proposed by New Gold. Following the completion of the federal EA, the Minister of the Environment announced that “the Rainy River Project is not likely to cause significant adverse environmental effects.” (see footnote 3) In addition, “conditions have been established in relation to the environmental effects, with which the Proponent (New Gold) must comply.”

Background

Metal Mining Effluent Regulations (MMER or Regulations)

The MMER came into force on December 6, 2002, under the Fisheries Act (the Act). The Act prohibits the deposit of deleterious substances in waters frequented by fish, unless it is authorized by regulations. The use of fish-frequented waters for mine waste disposal may thus only be authorized through an amendment to the MMER; the water body would need to be added to Schedule 2 of the Regulations. As of July 2017, there were 33 water bodies listed in Schedule 2 of the MMER.

When a fish-frequented water body has been added to Schedule 2 of the MMER, the Regulations require the development and implementation of a fish habitat compensation plan 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. Mine owners or operators are required to submit a letter of credit ensuring that funds are in place to address all elements of the fish habitat compensation plan.

Schedule 4 of the MMER prescribes the maximum authorized limits for deleterious substances in mine effluent, including limits for arsenic, copper, cyanide, lead, nickel, zinc, radium-226 and total suspended solids. The Regulations also specify the allowable acidity or alkalinity (pH) of mine effluent, and require that mine effluents not be acutely lethal to fish. (see footnote 4) The MMER require that mine owners or operators monitor and test effluents to ensure compliance with the authorized limits and that they report these results to the Department of the Environment. The Department of the Environment publishes annual performance summaries of the performance of metal mines with respect to selected standards prescribed by the MMER.

The Regulations require that environmental effects monitoring be conducted downstream from the effluent discharge point to determine if there are any effects on fish, fish habitat, or the use of fisheries resources.

Rainy River Project

New Gold Inc. began construction of the Rainy River Project in May 2015 and, as of January 2017, employs a total of 1 000 people on-site, 324 of whom are full-time operations employees. Of these, 80% are from the Rainy River and Kenora districts, and more than 32% of employees are from Indigenous communities. (see footnote 5) The Rainy River mine will contribute to the local and regional economy by being the largest employer in the Rainy River region. The mine will directly employ 550 employees and is estimated to lead to the creation of 1 000 indirect jobs in Northern Ontario once it begins operation in September 2017. (see footnote 6)

The mine is designed to produce 27 000 tonnes of ore per day and an annual average of 325 000 ounces of gold during the 14-year mine life. New Gold estimates that the deposit contains an ore reserve of about 3.8 million ounces of gold and 9.4 million ounces of silver. New Gold is investing a total of $1.3 billion to develop the resource with an implied value potential of about $2.3 billion, and an average production capacity of 325 000 ounces of gold annually. (see footnote 7) A financial analysis of the mine as reported by New Gold has forecast a net present value before tax for the project of $759 million (using a 5% discount rate and subject to the metal prices for gold and silver as well as the exchange rate on the Canadian dollar). (see footnote 8) This represents an internal rate of return of 14.8%.

During construction, in late 2015, New Gold discovered cracks in a water management pond dam at the mine. All dam construction was stopped by the Province of Ontario, and an investigation into the problem was undertaken by New Gold. As a result of the findings of this investigation, New Gold submitted new dam designs for both the water management pond and the tailings management area (TMA) to the Ontario Ministry of Natural Resources and Forestry (MNRF) for approval. In August 2016, New Gold received approval from the MNRF to resume work on the water management facility based on the new designs approved by the MNRF. In November 2016, New Gold obtained approval of the new dam designs for the entirety of the tailings management area, and began reconstruction of the dams based on the new designs.

Mine waste disposal management for the Rainy River mine

The Rainy River Project is expected to generate 110 to 120 million tonnes of tailings, 70 to 80 million tonnes of overburden (see footnote 9) and 350 to 400 million tonnes of waste rock over the life of the mine.

Tailings and mine effluent management

New Gold plans to construct and operate a TMA that will be located northwest of the open pit, a water management pond, a water discharge pond and a constructed wetland (see Figure 1). New Gold is required to treat the mine effluent to meet the specified MMER requirements before discharging the effluent to Loslo Creek.

Overburden and waste rock management

New Gold will dispose of waste rock and overburden into two separate stockpiles to allow for the management of all mine waste within the footprint of the Pinewood River watershed.

These mine waste disposal areas will destroy three water bodies frequented by fish: a portion of an unnamed creek, locally known as Loslo Creek, and of its unnamed tributaries, which are tributary to the Pinewood River; a portion of an unnamed creek, locally known as Marr Creek, and of its unnamed tributaries, which are tributary to the Pinewood River; and a portion of an unnamed creek, locally known as Marr Creek, other than the previously mentioned portion, that is tributary to the Pinewood River (see footnote 10) (see Figure 1). The use of these creeks will result in a loss of 21.3 ha of fish habitat, and these three water bodies must be added to Schedule 2 of the MMER in order to be used for the disposal of mine waste.

The creeks are composed mainly of shallow streams and are characterized by a low gradient with a number of beaver ponds throughout their lengths, thus creating low flow systems. The flow of the creeks are influenced by seasonal increases and decreases in surface water inputs, resulting in intermittent (see footnote 11) waters in the western portion of Loslo Creek and restricted flow through the length of Marr Creek.

Loslo Creek provides fish habitat for 11 fish species, including Central Mudminnow, Brook Stickleback, Spottail Shiner, Northern Redbelly Dace, Lake Chub, Finescale Dace, Emerald Shiner, Creek Chub, Brassy Minnow, Blackchin Shiner, and White Sucker. These are all fish used as bait for fishing.

Marr Creek provides fish habitat for 12 bait fish species, including Central Mudminnow, Brook Stickleback, Common Shiner, Fathead Minnow, Northern Pearl Dace, Spottail Shiner, Northern Redbelly Dace, Lake Chub, Finescale Dace, Emerald Shiner, Creek Chub, and Brassy Minnow.

Environmental assessments of the Rainy River Project

The Rainy River Project was subject to a federal EA conducted by the Agency under the Canadian Environmental Assessment Act, 2012. (see footnote 12) The federal EA, completed on January 12, 2015, concluded that “the Rainy River Project is not likely to cause significant adverse environmental effects.” (see footnote 13) In addition, “conditions have been established in relation to the environmental effects, with which the Proponent must comply.”

On January 17, 2014, New Gold Inc. submitted its environmental assessment, under the Ontario Environmental Assessment Act, to the Ontario Ministry of the Environment and Climate Change for review and decision. The environmental assessment was approved, subject to conditions, on January 28, 2015, by the Ontario Ministry of the Environment and Climate Change, with concurrence from the Lieutenant Governor in Council. (see footnote 14)

Figure 1: The Rainy River Project map

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

Objectives

The objective of the Regulations Amending the Metal Mining Effluent Regulations (Amendments) is to enable the deposit of mine waste in three fish-frequented water bodies at the Rainy River mine.

Description

The Amendments

The Amendments will add the following waters to Schedule 2 of the MMER (see Figure 1):

The sites for mine waste disposal will destroy waters with a total area of approximately 21.3 ha. Under section 27.1 of the MMER, New Gold is required to implement a fish habitat compensation plan to offset the loss of fish habitat that will occur as a result of the use of fish-frequented waters for mine waste disposal. New Gold is also required to submit a letter of credit ensuring that the funds are in place to address all elements of the fish habitat compensation plan.

Fish habitat compensation plan

The fish habitat compensation plan was reviewed and accepted by the Department of Fisheries and Oceans. The fish habitat compensation plan commits New Gold to create new fish habitat and increase the productive capacity of fish habitat in the Pinewood River watershed. The plan had input from a fisheries working group that was comprised of participants from the Rainy River First Nations, the Ontario Ministry of Natural Resources and Forestry, the Department of Fisheries and Oceans, and local stakeholders.

Some of the limiting conditions in the existing small creek system are the lack of deeper pools for summer and winter refuge during conditions of low flow, and the agricultural and pasture lands in the area that reduce fish cover.

The compensation measures would create 25.7 ha of fish habitat and will consist of the realignment of West Creek, a West Creek tributary and a Clark Creek tributary, the creation of West Creek pond, Clark Creek pond, and Stockpile pond, and the creation of several habitat features, including permanent deeper water refuge pools, log and boulder structures, and shallow areas for greater wetland vegetation productivity.

“One-for-One” Rule

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

Small business lens

The Amendments do not trigger the small business lens as the owner and operator of the Rainy River Project, New Gold Inc., is not considered a small business. (see footnote 16)

Consultation

The Department of the Environment consulted with Indigenous peoples on the proposed Amendments to the MMER related to the Rainy River Project. Furthermore, consultations were undertaken with the general public, environmental organizations and other interested parties.

The Rainy River Project is located within asserted traditional territories of the Rainy River First Nations, and components of the Project are located in the vicinity of the asserted traditional territories of the Anishinaabeg of Naongashiing (Big Island) First Nation, Naicatchewenin First Nation, Mishkosiminiziibiing (Big Grassy River) First Nation, Naotkamegwanning (Whitefish Bay) First Nation, Ojibways of Onigaming First Nation and First Nations members of the Fort Frances Chiefs Secretariat. All these First Nations have been engaged in consultations on the federal EA and consultations associated with the proposed Amendments.

The Project will also have impacts on the Métis Nation of Ontario Region 1. The Department of the Environment engaged the Métis Nation of Ontario Region 1 in September 2014, and began discussions on consultations for the proposed Amendments. In November 2014, Métis Nation of Ontario signed a participation agreement with New Gold. Following this, all further attempts by the Department of the Environment to engage Métis Nation of Ontario Region 1 went unanswered.

New Gold has signed an Impact Benefit Agreement (IBA) with each of the following: the Naicatchewenin First Nation; the Rainy River First Nations; the Mishkosiminiziibiing (Big Grassy River) First Nation, Naotkamegwanning (Whitefish Bay) First Nation; and four member First Nations of the Fort Frances Chiefs Secretariat. New Gold is continuing negotiations with Anishinaabeg of Naongashiing (Big Island) First Nation, Ojibways of Onigaming First Nation and Animakee Wa Zhing (Northwest Angle #37) First Nation.

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

In the fall of 2014, the Department of the Environment held nine consultation sessions on the proposed Amendments. Participants at these sessions included representatives of the Department of the Environment, the Department of Fisheries and Oceans, the Agency, New Gold and other participants as indicated below.

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

At these consultation sessions and in the written comments, a range of opinions and concerns were expressed regarding the proposed Amendments and the associated fish habitat compensation plan, and the Rainy River Project as a whole. Following the consultation sessions, five written submissions were received: one from a local landowner, two from the leadership of local Indigenous communities, and two from ENGOs.

The proposed Amendments are generally supported by most members of the First Nations. However, some representatives of First Nations and environmental organizations are opposed to the proposed Amendments and expressed concerns about downstream water quality, the impacts to the creeks within the Project area, and the potential risks of a tailings dam failure such as that which occurred at the Mount Polley mine in August 2014.

Many comments and questions raised during the consultations are beyond the scope of the proposed Amendments and regarded the environmental assessment and the Project as a whole.

Comments raised during the consultation sessions and those submitted in writing regarding the proposed Amendments are summarized below.

Comments on the proposed Amendments and the assessment of alternatives for tailings and mine waste disposal

While the Department of the Environment understands and respects these concerns, the proposed Amendments are made in the context of an existing legislative framework under the Fisheries Act and the MMER.

During the consultation sessions, representatives from the Department of Fisheries and Oceans explained that the creeks have been previously impacted by agricultural activities and are currently in poor condition. They further explained that the proposed fish habitat compensation plan will result in improved fish habitat productivity in the Project area.

While the Department of the Environment acknowledges these concerns, the MMER require that the effluent released by the mine comply with the prescribed limits for deleterious substances listed in Schedule 4 to the MMER, and that the effluent be non-acutely lethal to fish prior to its discharge to the environment, to ensure protection of the downstream receiving environment to the degree that is practically achievable. The results of the analysis of the effluents are submitted to the Department of the Environment and published in annual reports.

Furthermore, the MMER also require that the owner or operator of a mine conduct an environmental effects monitoring program.

The Department of the Environment acknowledges that tailings management and disposal using thickened, paste or dry stack tailings each have advantages and disadvantages. The Department of the Environment’s review of the assessment of alternatives report prepared by New Gold found no advantage to the dry stack option, because it would not reduce the tailings impoundment area (TIA) footprint or the associated water management requirements.

The discussion of the pre-screening of alternative criteria and reasons for the exclusion of preliminary waste disposal options is part of the report. New Gold intends to segregate mine waste and to use overburden for capping of waste rock at closure. The non-PAG waste rock and overburden disposal areas will be located to the west of the open pit, and the segregated PAG material will be stored in the mine waste disposal area to the east of the open pit.

Comments on the fish habitat compensation plan

Representatives of the Department of Fisheries and Oceans responded that they welcomed input on the fish habitat compensation plan. It was noted that input received on the fish habitat compensation plan throughout the consultation process had been considered in the development of the plan. The representatives went on to say that the work on the new stream channels would be done before the existing streams would be impacted, and that these types of compensation projects have been completed successfully throughout Canada. The construction of the new ponds and new stream channels, as proposed in the final fish habitat compensation plan, has begun and a significant amount of the work has been completed.

Furthermore, as part of the regulatory amendment process, the Department of the Environment consults with Indigenous groups and with the public on the proposed fish habitat compensation plan and the proposed alternative assessment report prepared by the Proponent. The Department of the Environment considers all comments received and works in collaboration with the Proponent to address them.

New Gold has characterized the habitat types that were found in the creeks that would be overprinted or diverted for the mine workings. The replacement of “like for like” habitat will occur in that the newly constructed creeks and ponds will include features sampled from the overprinted or diverted creeks. The compensation plan contains information on sampling that was conducted by New Gold on multiple occasions from 2008 to 2013.

The draft Ontario Fisheries Management Zone 5 Fisheries Management Plan is a general Ontario Ministry of Natural Resources and Forestry document that provides information about fishing and how fish resources are managed in the northwest region that includes Fort Frances, Kenora and Dryden.

The Department of Fisheries and Oceans used the Pinewood River Watershed Fish Management Objectives that were prepared with the Ontario Ministry of Natural Resources and Forestry to design the offset plan required for the authorization pursuant to paragraph 35(2)(b) of the Fisheries Act. The Pinewood River Watershed Fish Management Objectives are more specific to the system being impacted. The objectives of the plan are to manage baitfish populations to ensure the ecological value of baitfish and to maintain water quality and flows that support spawning habitat for large-bodied fish, including Lake Sturgeon, Walleye and Northern Pike in the Pinewood River. The offset plan was designed to ensure these objectives are met.

The Department of Fisheries and Oceans, in conjunction with the Ontario Ministry of the Environment and Climate Change, issued the required permits to allow the taking of water by the Rainy River Mine to ensure that flow reductions would not have a negative impact on the fisheries. In addition, monitoring for this potential impact has been included in New Gold’s authorization pursuant to paragraph 35(2)(b) of the Fisheries Act, with contingency measures to be used if the monitoring indicates a negative impact.

Consultations on the proposed Amendments following publication in the Canada Gazette, Part I

The proposed Amendments were prepublished in the Canada Gazette, Part I, on May 13, 2017, for a 30-day public consultation period, during which the Department of the Environment received two written submissions. In the first written submission, the Mining Association of Canada stated that it supports the proposed Amendments. The Department of the Environment acknowledged the Mining Association of Canada’s support of the project.

In the second submission, an individual inquired as to the next steps for the regulatory amendment. The Department of the Environment clarified that following the review of comments received after the prepublication in Part I of the Canada Gazette, the final regulatory amendments would be submitted for review and approval by the Minister of the Environment. If the amendments should be approved, the Minister would recommend that the Governor in Council make the Regulations Amending the Metal Mining Effluent Regulations. If the Governor in Council approved, the final Regulations would be published in the Canada Gazette, Part II. This would complete the regulatory process and New Gold could then use the water bodies frequented by fish listed in Schedule 2 of the Regulations for the disposal of mine waste.

Rationale

Regulatory and non-regulatory options for mine waste disposal

New Gold has prepared a report on the assessment of alternatives for mine waste disposal to identify the preferred mine waste disposal options based on the consideration of environmental, socio-economic, technical and economic impacts. The report was part of the environmental impact statement for the Rainy River Project. The federal EA considered the alternatives for the disposal of mine waste as measures to mitigate potential impacts of the Project on fish habitat.

The selection criteria used to identify viable options for tailings and mine waste disposal were the following:

New Gold identified eight alternative tailing storage locations and five waste rock storage locations in the preliminary stage. Four tailing storage options and one waste rock storage option were screened out because they did not meet one or more of the above-mentioned criteria, all of which were considered to be critical criteria.

Non-regulatory options include the disposal of mine waste in a manner that would not directly impact waters frequented by fish. New Gold identified two potential tailings disposal locations and three waste rock and overburden disposal locations that would not require a regulatory amendment. The non-regulatory options were assessed and compared using environmental, technical, and socio-economic criteria, but were rejected because of the proximity to residences, technical issues, or the associated increased cost.

Regulatory options entail the disposal of tailings and mine waste in a manner that results in direct impacts (see footnote 18) to one or more waters frequented by fish and, therefore, require that the waters be added to Schedule 2 of the MMER. New Gold identified two potential tailings and mine rock disposal locations, which were assessed and compared using environmental, technical, and socio-economic criteria. One tailings disposal option was rejected because of technical issues and the fact that New Gold did not own the land where it would be located.

The preferred option for tailings disposal is located to the northwest of the open pit and overprints Loslo Creek and Marr Creek (see Figure 1). The location takes advantage of the natural topography with high ground on the north border, which will not require dam containment. This option is also well suited for the development of internal dams for separate water ponding in the TMA, and the water discharge pond and the constructed wetland for further polishing of the mine effluent prior to final discharge to the environment. This option does not impact local residences or transportation routes and has limited air quality and noise impacts. The economic aspects of this option are the most favourable given the greater amount of natural containment imparted by the high ground at the north limit and the fact that the site is located on land owned by New Gold.

For the disposal of mine waste and overburden, two options were chosen. The first is located east of the open pit and overprints a portion of Clark Creek, which is proposed for realignment as part of the fish habitat compensation plan. This option was identified as one of the preferred options for the disposal of waste rock owing to the valley topography, which facilitates runoff and seepage collection, and it also has the smallest footprint at 375 ha. The other option is located to the west of the open pit and overprints the lower reach of fish-frequented Marr Creek. This alternative is situated on relatively flat terrain and has a footprint of 399 ha. Both options are the most cost-effective and minimize the effects on the environment. Further details on these locations are provided in Figure 1.

Analytical framework

The Amendments will add waters frequented by fish to Schedule 2 of the MMER so that they can be used for the disposal of mine waste from the Rainy River Project.

Given the absence of a feasible non-regulatory option for mine waste disposal, a meaningful baseline scenario could not be constructed for the analytical framework and, in turn, no cost-benefit analysis could be performed. The analysis below will examine the impacts of the Amendments on the environment, the Government and Canadian businesses.

Environmental impacts

The use of waters from the Pinewood River watershed for the disposal of mine waste from the Rainy River Project will result in the loss of 21.3 ha of fish habitat in Loslo Creek, Marr Creek and their tributaries. As a result of the loss of these water bodies, which flow directly into the Pinewood River, the Pinewood River will experience flow reductions. To compensate for the loss of fish habitat, West Creek, a tributary to West Creek and Clark Creek will be realigned and pond habitat will be created with the construction of West Pond, Clark Pond and Stockpile Pond.

The Department of Fisheries and Oceans is of the opinion that the species present in the waters that will be destroyed are resilient and common throughout the region. The success of the realignment of West Creek and Clark Creek will be monitored by measuring a minimum of nine species of fish, determining if multiple year classes of fish are present and undertaking abundance monitoring in each of the diverted creeks.

As a measure to mitigate serious harm to fish related to the reduction in the flow of the Pinewood River between the West Creek and Loslo Creek inflow to the river, a plan will be implemented to monitor the fish community of the Pinewood River between the two creek inflows to confirm that the fish community and passage are maintained.

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. This plan has been reviewed and accepted by the Department of Fisheries and Oceans, and New Gold has already implemented a substantial number of the plan’s requirements.

Cost 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 visit, monitoring and review costs incurred by the Department of Fisheries and Oceans. 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. Furthermore, these incremental monitoring activities, and associated costs, will only occur during the implementation of the fish habitat compensation plan, and will not continue throughout the life of the mine waste disposal areas. Incremental compliance promotion costs may also be incurred but will be low, given that the majority of compliance promotion activities occurred during the federal EA process.

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

Cost to business

The Amendments will result in additional costs to New Gold associated with the implementation of the fish habitat compensation plan.

Costs attributable to the fish habitat compensation plan, such as annual monitoring for five years, and the construction of creek diversions and ponds are estimated to be $2,658,094. (see footnote 19)

Strategic environmental assessment

A strategic environmental assessment (SEA) has concluded that the Regulations Amending the Metal Mining Effluent Regulations under the Fisheries Act (the Act), which will authorize mine waste disposal in water bodies frequented by fish for the Rainy River Project, will result in adverse environmental effects, i.e. loss of fish habitat. This loss of fish habitat will be mitigated by the implementation of a fish habitat compensation plan.

Moreover, follow-up monitoring of the implementation of the fish habitat compensation plan is required as part of the plan. The monitoring will evaluate the adequacy of the plan to create and maintain fish habitat and requires that the Proponent submit an annual monitoring report to the Department of Fisheries and Oceans on the effectiveness of the plan.

The Amendments will contribute to the long-term goal of the Federal Sustainable Development Strategy (FSDS) of having “clean and healthy lakes and rivers [to] support economic prosperity and the well-being of Canadians”. The MMER have strict limits on the quality of effluent that can be discharged by metal mines to ensure the safe disposal of mining wastes, and require ongoing monitoring and inspection. The MMER also require the Proponent to compensate for the loss of fish habitat caused by the use of a fish-frequented water body for the disposal of mine waste. Therefore, this regulatory initiative will contribute to the following goals set out in the 2016–2019 FSDS:

Rationale summary

New Gold identified waters frequented by fish that are located in the area selected for the disposal of mine waste. These fish-frequented waters are described as a portion of an unnamed creek, locally known as Loslo Creek, and of its unnamed tributaries, that are tributary to Pinewood River, Ontario; a portion of an unnamed creek, locally known as Marr Creek, and of its unnamed tributaries, that are tributary to Pinewood River, Ontario; and a portion of an unnamed creek, locally known as Marr Creek, other than the portion previously mentioned, that is tributary to the Pinewood River, Ontario. (see footnote 20) However, the use of these waters for the disposal of mine waste from the Rainy River Project will only be possible if they are added to Schedule 2 of the MMER, which is the objective of the Amendments.

The Amendments will allow the destruction of 21.3 ha of fish habitat. To offset the loss of fish habitat, the fish habitat compensation plan will be implemented, including the realignment of two creeks, the creation of inline pond habitat and a follow-up program to ensure the compensation has occurred. The total cost of the fish habitat compensation plan incurred by New Gold is estimated to be $2,658,094. (see footnote 21) Incremental costs to the Government associated with the fish habitat compensation plan will be low.

On January 12, 2015, the former Minister of the Environment announced that the proposed Rainy River Project was not likely to cause significant adverse environmental effects. In addition, the environmental assessment decision statement identified the conditions that the Proponent had to meet with respect to mitigation measures and follow-up program requirements.

Residents from the local community, Indigenous peoples, environmental non-governmental organizations, and local mining business representatives provided comments during the consultation sessions on the proposed Amendments. These comments focused on environmental and economic impacts from the Rainy River Mine Project as a whole, the proposed Amendments, and the fish habitat compensation plan. The Rainy River Project and the Amendments were supported by the mining industry, the local population and generally by the Indigenous communities.

Implementation, enforcement and service standards

The Amendments will enable New Gold to utilize water bodies frequented by fish for the disposal of mine waste from the Rainy River Project.

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 (hereinafter, the Policy). Verification of compliance with the Amendments and the Fisheries Act will include, among other inspection activities, site visits, sample analysis, review of fish habitat compensation plans and related reports associated with the 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 will decide on an appropriate enforcement action, in accordance with the following criteria, as set out in the Policy:

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

For more information on the Policy, please consult the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. (see footnote 22)

Contact

Mr. Chris Doiron
Manager
Mining Section
Mining and Processing Division
Industrial Sectors, Chemicals, and Waste Directorate
Environment and Climate Change Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-420-7688
Fax: 819-420-7381
Email: ec.mmer-remm.ec@canada.ca