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Current as of December 5, 2012

Federal review and permitting of mining projects Overview of the Canadian Environmental Assessment Act, Fisheries Act, Navigable Waters Protection Act. Current as of December 5, 2012. Introduction and Warnings.

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Current as of December 5, 2012

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  1. Federal review and permitting of mining projectsOverview of the Canadian Environmental Assessment Act, Fisheries Act, Navigable Waters Protection Act Current as of December 5, 2012 Federal Review and Permitting DRAFT 7

  2. Introduction and Warnings • This deck provides an overview of recent changes to the Canadian Environmental Assessment Act, the Fisheries Act and the Navigable Waters Protection Act as they relate to mining projects. • This deck is not an exhaustive legal review. It is meant to help you identify what questions you may need to ask. • This deck does not cover all federal legislative requirements relevant to mining projects. It omits: • Legislation specific to the Yukon, NWT, and Nunavut. • Requirements such as those dealing with explosives or transportation. • Legislation specific to uranium mines. Federal Review and Permitting DRAFT 7

  3. Acronyms Federal Review and Permitting DRAFT 7

  4. Simplified overview of key questions Federal Review and Permitting DRAFT 7

  5. Canadian Environmental Assessment Act - CEAA 2012 Federal Review and Permitting DRAFT 7

  6. CEAA 2012 Important Points • The Regulations Designating Physical Activities are under review and will be amended in early 2013. • Potential amendments relating to: diamonds, groundwater, expansions. • Proponents must submit a project description. • Non-uranium projects must be screened. Screening can decide that an assessment is not required. • Screening is based on potential for adverse environmental effects in areas of federal jurisdiction and public comments. • We don’t know under what circumstances a mining project might be screened out. • CEAA 2012 applies independently of any federal approvals needed. • Where CEAA does apply, other federal decisions cannot be made until after the CEAA process is concluded. Your project/activity may require an assessment without any federal approvals or may require federal approvals and not be subject to CEAA 2012. Federal Review and Permitting DRAFT 7

  7. Water and federal legislation A water body (such as a pond, lake, creek, river, ditch, artificial tailings pond, or bog) can be subject to one or more federal prohibitions that require approvals under the Fisheries Act or the Navigable Waters Protection Act. The Fisheries Act has been amended with amendments expected to come into force in 2013. The Fisheries Act is administered by Fisheries and Oceans Canada and Environment Canada. The Navigable Waters Protection Act is being amended to become the Navigation Protection Act, which is expected to come into force in 2013. The Act is administered by Transport Canada. Federal Review and Permitting DRAFT 7

  8. Important Water Questions(once all amendments in force) Federal Review and Permitting DRAFT 7

  9. Important Water Questions(current legislation) Federal Review and Permitting DRAFT 7

  10. Fisheries Act s35 Fisheries and Oceans Canada (DFO) • Currently old prohibitions apply (s35: harmful alteration, disruption or destruction of fish habitat; s32: killing fish). • New prohibition will apply if you propose to permanently alter or destroy fish habitat or kill fish that are part of or support a commercial, recreational or Aboriginal fishery. • If prohibitions apply, must obtain authorization from Fisheries and Oceans Canada. • Fisheries and Oceans Canada is preparing guidance on concepts such as “permanent alteration or destruction” and “commercial, recreational or Aboriginal fishery”. • Expected in early 2013. • Coming into force of all amendments expected in 2013. Federal Review and Permitting DRAFT 7

  11. Fisheries Act s36Environment Canada and Fisheries and Oceans Canada (EC & DFO) • Prohibits deposit of deleterious substances in water frequented by fish. • Any effluent, surface runoff or seepage into water frequented by fish must meet MMER effluent limits for metal mines or be non-deleterious. • If a tailings impoundment area is proposed in water frequented by fish: • metal mines must obtain Schedule 2 listing (Governor in Council) through Environment Canada (effluent from the TIA must meet effluent limits in the MMER). • non-metal mine TIAs cannot proceed. • “Water frequented by fish” not elaborated in written guidance. • Old Act: Under case law, water bodies that support a fishery are “water frequented by fish”. • Amended Act: no change (a fishery is a fishery, the “commercial, recreational or Aboriginal” distinction is not relevant). • “Deposit” not elaborated in written guidance. • If water is diverted or removed or removed during operations, and a deposit goes on the resulting dry land, then the deposit is not a deposit into water frequented by fish (But any run-off, seepage or effluent from that deposit must meet the effluent limits in the MMER for metal mines or be non-deleterious for non-metal mines). • Currently, DFO determines what is a “water frequented by fish”. It is not known whether EC will take on this responsibility in 2013. Federal Review and Permitting DRAFT 7

  12. “Deleterious” Environment Canada determines what is “deleterious” based on standard tests done by proponent. Environment Canada guidance on what is deleterious: • Definitely deleterious: • Tailings • Effluent or waste rock with leachate ≥ MMER Schedule 4 limits • Definitely not deleterious: • Effluent or waste rock with leachate ≤ CCME Water Quality Guidelines for the Protection of Aquatic Life. • Waste rock with leachate between CCME and MMER: • Proponent characterization, case by case. Federal Review and Permitting DRAFT 7

  13. Navigable water - Status • Navigable Waters Protection Act (NWPA) is being amended to become the Navigation Protection Act (NPA). • Amendments are expected to come into force in mid 2013. • For mining activities, the differences between NWPA and NPA are administrative rather than substantial. • NPA does not substantively reduce protection of navigation rights, therefore the scope of its prohibitions is not reduced. The objectives of NWPA/ NPA and of the Fisheries Act are different. A water body may be subject to one but not the other or it may be subject to both. Mitigating measures and necessary justification are also different for the two Acts. Federal Review and Permitting DRAFT 7

  14. Legal basis for NWPA/NPA • Public right to navigation is established by common law. • What is “navigable water” is based on jurisprudence (existing court decisions) and open to interpretation. • NWPA/NPA is legislation that places limits on the public right by authorizing the government to exempt from the common law prohibition something that may reduce navigation. • NWPA/NPA do not create the prohibition (it is created by common law). • In contrast, the Fisheries Act creates the prohibition (of harm to fisheries). Federal Review and Permitting DRAFT 7

  15. NWPA (currently in force) • Site-specific Ministerial Approval required for any work that may impede navigation on “navigable water” except for “minor works” and “minor waters”. • Governor-in-Council Proclamation required for depositing fill in navigable water, interpreted as extinguishing the water body by filling it. Federal Review and Permitting DRAFT 7

  16. NPA(Future name of amended NWPA once amendments in force) • Ministerial approvals required for “works” on listed navigable waters. • Prohibition of impeding navigation on unlisted navigable waters left to common law. • Proponents of “works” on unlisted navigable waters can request a permit (opt in). • Process for opting in is not yet developed. • “Works” include partial water withdrawal, diversions, bridges, dams, and culverts. • Dewatering of a navigable water prohibited unless allowed by a Governor-in-Council order. • Filling a navigable water prohibited unless allowed by a Governor-in-Council order or part of the water designated by the Minister. Federal Review and Permitting DRAFT 7

  17. Guidance to be developed • Little historic precedent to build on in understanding NPA for mining projects: • Transport Canada had very few staff administering the NWPA and a huge workload of small project permitting → little capacity to engage in reviews of mining projects. • MAC had focused its attention on Fisheries Act issues. • Growth of mining industry, particularly in northern (and wetter) parts of Canada means growing relevance of NPA. • Mining industry will work with Transport Canada to increase mutual understanding and develop guidance: • What is navigable and what mining activities may impede navigation. • Which mining activities are “works” and which are “fill” or “dewatering”. • Target: early 2013 so guidance ready for NPA coming into force. Federal Review and Permitting DRAFT 7

  18. Mining projects in transition • Key federal legislation that impacts mining projects is changing, with answers to many questions yet to be developed. • Companies will have to make difficult decisions based on incomplete information about what the requirements are now and what they will be. • Advice: • Keep MAC and relevant provincial or territorial association informed. • Talk to Major Projects Management Office or the Northern Projects Management Office, and relevant departments and Agencies. Federal Review and Permitting DRAFT 7

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