Guide To The Regulatory Process For Listing Water Bodies Frequented By Fish In Schedule 2 Of The Metal And Diamond Mining Effluent Regulations

Acronyms

Disclaimer

This document outlines the process for listing water bodies frequented by fish to Schedule 2 of the MDMER to designate them as tailings impoundment areas (TIAs). This document also lists the documentation that must be submitted by the proponent to Environment and Climate Change Canada (ECCC) to initiate this regulatory process.

This document is not a legal document. This document is meant to guide owners and operators of a mine through the process of listing waters frequented by fish to Schedule 2 of the MDMER.

For the purpose of interpreting and applying the law, readers should consult:

• the Acts as passed by Parliament, which are published in the "Assented to" Acts service, Part III of the Canada Gazette and the annual Statutes of Canada, and
• the Regulations, as registered by the Clerk of the Privy Council and published in Part II of the Canada Gazette.

These publications are available in most public libraries and online. Official versions of the Statutes and Regulations can also be found at the Department of Justice website. The law as stated in these publications will prevail should any inconsistencies be found in this document. Laws, Regulations and guidelines are subject to amendments from time to time. Each version is dated, so readers should always ensure to consult the most recent version. Readers can contact ECCC for more information.

Purpose of the guide

The purpose of this document is to outline the process for listing water bodies frequented by fish to Schedule 2 of the Metal and Diamond Mining Effluent Regulations (MDMER) to designate them as tailings impoundment areas (TIAs). This document also lists the documentation that must be submitted by the proponent to Environment and Climate Change Canada (ECCC) to initiate this regulatory process.

Introduction

The Fisheries Act prohibits the deposit of deleterious substances into waters frequented by fish, unless the deposit is authorized by regulations. The MDMER are regulations made pursuant to subsections 34(2), 36(5) and 38(9) of the Fisheries Act. These regulations apply to metal and diamond mines, milling facilities and to hydrometallurgical facilities that have a flow rate of at least 50 m³/day from all mine effluent discharge points. ECCC is responsible for the implementation and enforcement of section 36 (3) of the Fisheries Act and the MDMER.

The MDMER contain provisions to allow for the disposal of mine waste in waters frequented by fish under certain conditions. The use of waters frequented by fish for mine waste disposal can only be authorized through an amendment to the MDMER by listing the water body in Schedule 2 as a tailings impoundment area.

For any project where the proposed disposal of mine waste would affect waters frequented by fish, thereby requiring an amendment to Schedule 2 of the MDMER, proponents must consider alternatives for mine waste management and demonstrate that the preferred option is the best option based on environmental, technical, economic and socio-economic criteria.

The MDMER also requires the development and implementation of a fish habitat compensation plan (FHCP) that meets all the requirements under section 27.1 of the Regulations to offset the loss of fish habitat that would occur as a result of the use of a water body for mine waste disposal.

Before releasing mine waste into a water body listed in Schedule 2 of the MDMER, the owner or operator of a mine must obtain approval for its FHCP from the Minister of Environment with advice from Fisheries and Oceans Canada (DFO). The owner or operator of a mine is also required to submit an irrevocable letter of credit to ensure that funds are in place should the owner or operator fail to address all the elements of the FHCP.

Overview of the regulatory process

The MDMER may authorize the use of fish-frequented water bodies for the disposal of mine waste where the proponent has demonstrated through an assessment of alternatives report that these locations represent the best options from an environmental, technical, economic and socio-economic perspective. The proponent must also develop a compensation plan to offset the loss of habitat caused by the development of a tailings impoundment area in waters frequented by fish.

The regulatory amendment process and consultations are based on the assessment of alternatives report and the FHCP. For an overview of the regulatory process for amendments to Schedule 2 of the MDMER and the responsibilities of ECCC and the proponent, see Figure 1.

Assessment of alternatives

The proponent is responsible for preparing the assessment of alternatives report (AA) on mine waste management and for demonstrating that the preferred option is the best one based on the environmental, technical, economic and socio-economic criteria set out in Environment and Climate Change Canada’s Guidelines for the assessment of alternatives for mine waste disposal (the Guidelines). The Guidelines also require proponents to undertake preliminary consultations on how alternative mine waste disposal options were assessed and how the preferred option was determined.

The AA is analyzed by the technical analysis unit of ECCC’s Mining and Processing Division of to ensure that the report’s structure and content comply with the Guidelines. Once it has been determined that the report’s structure and content meet the requirements of the Guidelines, the report is ready to be presented as part of the consultation phase. Note that during the consultation period, modifications to the report may be required in response to comments from Indigenous communities and the public.

Fish habitat compensation plan

The MDMER requires the development and implementation of a FHCP that meets all the requirements under section 27.1 of the Regulations to offset the loss of fish habitat that would occur as a result of the use of a water body for mine waste disposal.

Once the FHCP has been reviewed and deemed adequate by DFO in accordance with its policies, DFO must recommend it to ECCC before ECCC can proceed with consultations. Note that during the consultation period, modifications to the plan may be required in response to comments from Indigenous communities and the public.

At the end of the regulatory process, the compensation plan must be approved by the Minister of Environment before any mine waste may be disposed of in water bodies listed in Schedule 2 of the MDMER.

Consultation

Throughout the regulatory process, ECCC works with mine proponents to ensure that Indigenous groups and all interested parties are consulted and involved in aspects, including the development of the compensation plan and the assessment of alternatives report. In doing so, ECCC encourages mine proponents to be proactive in involving and consulting Indigenous communities while developing these documents.

Once DFO recommends the proponent’s compensation plan in anticipation of consultations and the assessment of alternatives report has been evaluated by ECCC and found to be in compliance with the Guidelines, ECCC will organize consultations with Indigenous groups whose rights and territories may be impacted by the project as well as consultations with the public.

To undertake consultations with Indigenous groups and the public, proponents will be required to provide the following to ECCC:

• A general overview of the project in English and French
• A plain language summary of the compensation plan that includes the information required under section 27.1 of the MDMER
• A plain language summary of the assessment of alternatives report

ECCC posts the summaries and full documents on the Government of Canada website for consultation.

Proponents must participate in the consultation sessions or meetings with Indigenous groups and the public. The proponents role is to explain the process followed in the alternatives assessment, justify the selected alternative and explain the proposed compensatory measures set out in the fish habitat compensation plan.

ECCC and DFO are therefore present at the consultation sessions. ECCC is responsible for explaining the regulatory process and DFO describes the Department’s role and responsibilities in relation to assessment of the compensation plan as well as the conditions and policies governing the assessment.

Once the consultations have been completed, there will be a comment period during which ECCC will accept comments and concerns from Indigenous groups and the public regarding the assessment of alternatives report and the FHCP. It is possible that changes to the plan may be required as a result of the comments.

The consultation period may vary depending on the amount of time Indigenous groups and interested parties need in order to provide comments and the time it takes ECCC to respond to these comments in collaboration with the proponent and DFO. Taking into account the comments received, ECCC will proceed with the development of the proposed regulations to add water bodies to Schedule 2 of the MDMER.

Regulatory development process

In order to proceed with regulatory development, the proponent will be required to submit the following to ECCC:

• All maps and diagrams in English and French
  • A map that shows the location of the project (see Figure 2 in APPENDIX A)
  • A map showing the locations of the water bodies to be added to Schedule 2 of the MDMER
• If the proponent uses a polygon approach to delineate the water bodies to be added to Schedule 2 of the MDMER, a map showing the polygon(s) must be provided (see Figure 3 and Figure 4 in APPENDIX A)
  • A map showing the locations of the projects included in the fish habitat compensation plan
• A description of the water bodies that could be impacted by the mine waste disposal, with a description of the fish habitat in those water bodies
• The geographic coordinates (latitude and longitude) of the water bodies to be listed in Schedule 2 of the MDMER (see APPENDIX A for examples of how water bodies are listed when listed in Schedule 2 of the MDMER)
• The total area of water bodies frequented by fish that will be impacted by mine waste disposal
• A detailed report of all consultations organized by the proponent with local communities and Indigenous groups impacted by the project in relation to the compensation plan and the assessment of alternatives report. To the extent possible, include a list of responses to the comments received and demonstrate how these comments were incorporated into the development of the EA and the FHCP
• The proponent must provide ECCC with confirmation from Transport Canada that no water body to be listed in Schedule 2 of the MDMER is a navigable waterway under the terms of the Canadian Navigable Waters Act (CNWA).

Regulatory publication

Once the proposed regulatory amendment is prepared, the Minister of Environment will make a recommendation to the Governor in Council. If the proposed amendment and its pre-publication are approved by the Governor in Council, ECCC will publish the amendment in the Canada Gazette, Part I. Following publication, there will be a 30-day comment period during which ECCC will accept comments from Indigenous groups and the public concerning the regulatory amendment. ECCC will prepare the final version of the regulatory amendment, after taking into account the relevant comments and concerns and the Minister of Environment will make a recommendation to the Governor in Council. If the final version of the regulatory amendment and its publication in the Canada Gazette, Part II, are approved, the regulatory amendment is registered and comes into force.

Letter of credit

If the Governor in Council approves the proposed regulations, the proponent must then, pursuant to section 27.1 of the MDMER, provide DFO with an irrevocable letter of credit covering the costs of implementing the plan^{Footnote 1} . The proponent is not permitted to release mine waste into water bodies listed in Schedule 2 of the MDMER until DFO has received the letter of credit and the final compensation plan has been approved by the Minister of Environment upon the recommendation of DFO.

Timeline

To the extent possible, ECCC will use the policy on Streamlining the Approvals Process for Metal Mines with Tailings Impoundment Areas if all the conditions in that policy are met. Therefore, ECCC encourages mine proponents to develop the assessment of alternatives report and the FHCP as early as possible.

The full regulatory process can take 12 to 24 months (from the completion of consultations) before the regulatory amendments are published in the Canada Gazette, Part I and Part II. As long as the conditions are met, the use of the streamlining process can shorten the time to final approval by 5 to 6 months.

Figure 1: Summary of the regulatory process for adding a fish-frequented water body to Schedule 2 of the MDMER

For more information

You may contact us by mail, at the following address:

Environment and Climate Change Canada
Mining Section
Mining and Processing Division
351 Saint-Joseph Boulevard, 11th Floor
Gatineau, QC  K1A 0H3

You can also send your comments and questions to the following email address: ec.mdmer-remmmd.ec@canada.ca

APPENDIX A: examples of water bodies listed in schedule 2 of the MDMER

As described in the regulatory development process section, the geographic coordinates of water bodies to be added to Schedule 2 of the MDMER are required. The way in which water bodies are identified is different if reference is made to a lentic water body (i.e., calm water such as lakes and ponds) or a lotic water body (i.e., flowing water such as streams).

There are two options for describing a water body that is to be added to Schedule 2 of the MDMER:

Individual listing of water bodies

This approach is recommended when dealing with individual water bodies and/or water bodies that are geographically isolated from other water bodies. There are two ways to identify individual water bodies based on their type.

A lentic environment such as a lake is identified by GPS coordinates for the middle of the water body.

Example for a lentic environment such as a pond (corresponds to the map shown in Figure 2):

East Beaver Pond, located at 47°32′19.24″ north latitude and 81°55′14.03″ west longitude, approximately 20 km from the community of Gogama, Ontario.

A lotic water body such as a river is identified by GPS coordinates for each end.

Example for a lotic water body such as a river (corresponds to the map shown in Figure 3):

A tributary of an unnamed lake, located approximately 20 km from the community of Gogama, Ontario. More precisely, the portion of the tributary extending southeast from the point located at 47°31′31.54″ north latitude and 81°54′57.84″ west longitude extending downstream to the point located at 47°31′20.35″ north latitude and 81°54′43.63″ west longitude.

Polygon listing

This approach can be used when there are several water bodies to be added to Schedule 2 of the MDMER and they are clustered in a common area that can be delineated by a geographic zone or polygon.

Example of a polygon listing (corresponds to the map shown in Figure 4):

The waters located within an area located approximately 150 km north of Baker Lake, Nunavut. More precisely, the area bounded by five straight lines connecting five points starting at the point located at 65°40′45.1” north latitude and 96°67′58.5″ west longitude to the point located 778 m to the northwest at 65°41′05.6″ north latitude and 96°68′42.2″ west longitude to the point located 173 m northeast at 65°41′16.2″ north latitude and 96°68′15.2″ west longitude to the point located 1050 m southeast at 65°40′60.6″ north latitude and 96°66′32.7″ west longitude to the point located 168 m southeast at 65°40′45.8″ north latitude and 96°66′26.9″ west longitude and ending at the point located 611 m west at 65°40′45.1″ north latitude and 96°67′58.5″ west longitude.

Figure 2: Example of a map showing the project’s location

Figure 3: Example of a map showing individual water bodies (in green) to be added to Schedule 2 of the MDMER

Figure 4: Example of a map showing a polygon grouping together multiple water bodies to be added to Appendix 2 of the MDMER

APPENDIX B: proponent’s responsibilities

Summary of information to be submitted to ECCC by the proponent

Documents required from the proponent to meet the MDMER requirements:

☐ Fish habitat compensation plan

☐ Assessment of alternatives report

Documents required from the proponent for the consultations:

☐ Project overview

☐ Plain language summary of the fish habitat compensation plan

☐ Plain language summary of the assessment of alternatives report

ECCC encourages proponents to provide copies of the summaries, as well as the full alternatives assessment and FHCP reports, to local libraries in the affected communities for the public consultation period.

In order to support the regulatory development process, the proponent is required to submit the following to ECCC:

☐ All maps and diagrams in English and French;

☐ A map showing the location of the project

☐ A map showing the locations of the water bodies to be added to Schedule 2 of the MDMER

☐ A map showing the locations of the projects included in the fish habitat compensation plan

☐ A description of:

☐ Water bodies that could be impacted by mine waste disposal

☐ Fish habitat in those water bodies

☐ The geographic coordinates (latitude and longitude) of the water bodies to be added to Schedule 2 of the MDMER

☐ The total area of water bodies frequented by fish that will be impacted by mine waste disposal

☐ A report on the consultations conducted by the proponent during the development of the FHCP and the assessment of alternatives

☐ Confirmation from Transport Canada that no water body to be listed in Schedule 2 of the MDMER is a navigable waterway under the Canadian Navigable Waters Act (CNWA)

Letter of credit:

☐ Letter of credit

This letter must identify the Receiver General of Canada as the beneficiary on behalf of Fisheries and Oceans Canada. The proponent must send this letter of credit to DFO. ECCC must be informed when this irrevocable letter of credit is submitted to DFO.

APPENDIX C: useful links

Environment and Climate Change Canada – MDMER information

Transport Canada – CNWA policy information