Vol. 139, No. 15 — July 27, 2005

Registration
SOR/2005-226 July 18, 2005

NAVIGABLE WATERS PROTECTION ACT

Proclamation Exempting Tom MacKay Lake from the Operation of Section 22 of the Act

MORRIS JACOB FISH
Deputy of the Governor General

Canada

Elizabeth The Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.

To all to whom these Presents shall come or whom the same may in anyway concern,

Greeting:

JOHN H. SIMS
Deputy Attorney General of Canada

A Proclamation

Whereas section 23 of the Navigable Waters Protection Act provides that when it is shown to the satisfaction of the Governor in Council that the public interest would not be injuriously affected thereby, the Governor in Council may, by proclamation, declare any rivers, streams or waters in respect of which section 22 of that Act applies, or any parts thereof, exempt in whole or in part from the operation of that section;

Whereas the Governor in Council is satisfied that the public interest would not be injuriously affected by exempting Tom MacKay Lake, located in northern British Columbia, from the operation of section 22 of the Navigable Waters Protection Act;

And whereas, by Order in Council P.C. 2005-1059 of May 31, 2005, the Governor in Council directed that a proclamation do issue declaring that Tom MacKay Lake, located in northern British Columbia, is exempt from the operation of section 22 of the Navigable Waters Protection Act;

Now know you that We, by and with the advice of Our Privy Council for Canada, do by this Our proclamation direct that Tom MacKay Lake, located in northern British Columbia, is exempt from the operation of section 22 of the Navigable Waters Protection Act.

Of all which Our Loving Subjects and all others whom these presents may concern are hereby required to take notice and to govern themselves accordingly.

In testimony whereof, We have caused this Our proclamation to be published and the Great Seal of Canada to be hereunto affixed. Witness: The Honourable Morris Jacob Fish, a Puisne Judge of the Supreme Court of Canada and Deputy of Our Right Trusty and Well-beloved Adrienne Clarkson, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander or Our Order of Military Merit, Chancellor and Commander of Our Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

At Ottawa, this eighteenth day of July in the year of Our Lord two thousand and five and in the fifty-fourth year of Our Reign.

By command,

SUZANNE HURTUBISE
Deputy Registrar General of Canada

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the proclamation.)

Description

The Navigable Waters Protection Act (NWPA) is a Federal statute administered by the Department of Transport. The NWPA is designed to protect the navigable waters of Canada by prohibiting, without the approval of the Minister of Transport, the building or placement of any works that may substantially interfere with navigation. Also, the NWPA prohibits dumping unless it is shown to the satisfaction of the Governor in Council that the public interest would not be injuriously affected by that activity.

Homestake Canada Inc. which operates a gold, silver and base metal mine known as the Eskay Creek mine in north-western British Columbia, applied to the Minister of Transport for a Proclamation of exemption under section 23 of the NWPA for the dumping of mine tailings from the Eskay Creek mine into the Tom MacKay Lake. The company proposes to transport the mine tailings in a slurry form via a pipeline system from the Eskay Creek mine area into the Tom MacKay Lake. An average of up to 350 dry metric tonnes of tailings per day, will be disposed in Tom MacKay Lake.

Tom MacKay Lake is a long narrow lake (3400 metres long and 250 metres wide with an average depth of 8 metres and a maximum depth which exceeds 50 metres) located on a remote alpine mountain in Northern British Columbia. The lake is located in a remote area with rugged terrain, which limits the accessibility. There are no roads or trails leading to the lake. Tom MacKay Lake is frozen 9-10 months a year.

The amount of tailings dumped into the lake triggers section 22 of the NWPA but it has been determined that the public interest will not be injuriously affected and therefore a proclamation of exemption under section 23 permits the proponent to utilize the lake as requested. It is provided that the Governor in Council may, by proclamation, declare the Tom MacKay Lake, to be exempt, in whole or in part, from the operation of those sections of the NWPA that prohibit the deposit of certain material in navigable waters.

Alternatives

Alternative 1

Albino Lake was initially chosen for dumping of mine tailings from the Eskay Creek mine. This alternative (now in place) was chosen initially because it provided suitable conditions for tailings disposal. Mine tailings are currently being transported using trucks via a dedicated haul-road to Albino Lake for disposal. However, with the increase in the projected quantities of mine tailings, there is an imminent need for additional waste storage space.

Alternative 2

Various other alternatives were reviewed by the Project Review Team during the environmental assessment. Following extensive discussion on this topic, the Project Committee agreed that Tom MacKay Lake would provide the best opportunity of all the alternatives. The total quantity of mine tailings will fill approximately 7% of the total lake volume. Based on careful assessment of the options for the management of additional tailings that will be generated at the Eskay Creek mine, the most preferred as well as technically and economically viable option would be the Tom MacKay Lake.

Alternative 3

If the proclamation of exemption under section 23 required to permit the proponent to utilize the lake as requested is not granted, then the Department of Transport, will need to maintain an inspection schedule of the site and arrange vessel and sonar to ensure the proponent does not exceed the level as stipulated within section 22 of the NWPA. This option is not technically and economically a viable option for this Department.

Benefits and Costs

Benefit to the Government

The Department of Transport is required to carry out the full legal requirements of the NWPA and protect the Department from legal liability. As this method of mine tailing disposal becomes more popular in the future, the Department will have established the process to ensure consistent and clear direction for future projects of this type.

Cost to the Government

The majority of the cost of this proclamation of exemption is meeting the Federal Regulatory Policy requirements. Site inspections will be required by the Department of Transport, during the construction of the pipeline.

Benefit to the proponent

The benefit to the proponent is the assurance that they are in full compliance with the NWPA and they will be able to minimize the footprint of the impact in the lake and will allow them to dispose of all the tailings for lifespan of the Eskay Creek mine.

Cost to the proponent

The transportation of mine tailings to the disposal area in a slurry form via a pipeline, is the most economical option for the proponent. It can be easily conveyed across considerable distances in an environmentally sound manner.

Benefits to the General Public

This project has been the subject of an extensive environmental review under British Columbia Environmental Assessment Act (BCEAA) and the Canadian Environmental Assessment Act (CEAA) to identify potential environmental impacts, associated with this project and measures have been identified to mitigate the impacts on the water quality, fisheries resources, vegetation, wildlife, navigation, etc.

The Eskay Creek mine has been in operation for approximately 7 years, employing over 200 workers and providing economic benefits to the Province of British Columbia and the local area.

The Eskay Creek mine is located on traditional territory of the Tahltan First Nation people located in the north-western British Columbia. The development of the Eskay Creek mine provided to the Tahltans, business and employment opportunities.

Cost to the General Public

The proclamation of exemption does not impose any costs on the General Public.

Consultation

The proposal to use Tom MacKay Lake for mine tailing disposal has been the subject of an extensive environmental review under the BCEAA and the Federal CEAA. One of the key items of the CEAA, is the requirement for public participation. Early in the project, the public was consulted by notification, information and ongoing consultation (open house meetings in local communities) to identify and resolve public concerns about the project. The Project Committee has reviewed all issues raised by review agencies, First Nations and the public, and discussed the adequacy of proposed mitigation measures. As a result of the above review Tom MacKay Lake has been set out in Schedule 2 to the Metal Mining Effluent Regulations, as a tailing impoundment area.

The proponent submitted proposed plans to the Department of Transport for the proposed slurry pipeline. The proposal was advertised in two local newspapers and the Canada Gazette, Part I, and the plans were deposited in the nearest Land Title office as per the requirements of the section 9 of the NWPA.

For the complete environmental report go to: http://www.eao. gov.bc.ca/PROJECT/MINING/Tom_McKay/cert/cert117/recom. htm.

Notice of the Proclamation was pre-published in the Canada Gazette, Part I, on February 5, 2005 and no comments were received.

Compliance and Enforcement

The Governor in Council may exempt any body of water from section 22, by a proclamation under section 23 of the NWPA. The Minister of Transport having no major concerns regarding navigation and being satisfied that the public interest would not be injuriously effected, recommends that the Governor in Council issues a proclamation exempting Tom MacKay Lake from section 22 of the NWPA.

If the proclamation is granted, the only enforcement required by the Department of Transport, will be site inspection to ensure initial construction of the pipeline as per the submitted plans and approval under subsection 5(1) of the NWPA for the slurry pipeline.

Contact

Viki-Marie Di Censo
Navigable Water Protection Officer
Operations and Environmental Programs
Transport Canada
Ottawa, Ontario
K1A 0N5
Telephone: (613) 990-5891

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