Having gone through the early stages of environmental assessment, the Raven Coal Mine - proposed amid a thriving shellfish industry in Vancouver Island's Fanny Bay - was stopped in its tracks last week by the provincial Environmental Assessment Office. A jubilant John Snyder of CoalWatch Comox Valley - a group formed to deal with the threat of the mine - remarked on the verdict, "A review of the screening comments seems to indicate significant gaps in the Application, some of it having to do with public, First Nations, and stakeholder consultation; hydrology issues; and marine baseline studies." The rejection comes on the heels of a strong opposition campaign, which drew a near-record 5,000 public submissions raising concerns with the company's draft summary document.

Read this story from The Hill on the US Environmental Protection Agency's damning new review of the proposed Pebble Mine in Alaska. (April 26, 2013)

A proposed mine near Alaska’s coast that’s garnered Capitol Hill attention would harm a habitat that houses nearly half the world’s sockeye salmon, the Environmental Protection Agency (EPA) said Friday.

The EPA’s revised draft assessment of the Pebble Mine project’s potential impact on the aquatic ecosystem in Bristol Bay, Alaska determined the mine would destroy 90 miles of streams and up to 4,800 acres of wetland salmon habitat.

“Indirect effects of stream and wetland losses would include reductions in the quality of downstream habitat for coho salmon, sockeye salmon, Chinook salmon, rainbow trout, and Dolly Varden trout. These indirect effects cannot be quantified, but likely would diminish fish production downstream of the mine site,” the EPA said in its summary of the report.

If it gets developed, the southwestern Alaska copper and gold mine would be one of the world's largest. The mine is controversial in both in Washington, D.C., and Alaska, where it pits supporters of the state’s vast mineral resources against conservationists and an established commercial fishing industry.

The draft assessment now enters a public comment period that ends May 31. The EPA will review those comments before it finalizes the study, which will be used to inform the agency on whether to issue a permit needed to construct the mine.

The EPA's findings are a blow to industry groups and Republicans that have chastised the agency's process regarding that permit.

Republicans — including Oversight and Government Reform Chairman Darrell Issa (R-Calif.) — and industry groups have said the EPA is overstepping its authority by conducting environmental reviews before mine builders Anglo American and Northern Dynasty have submitted a formal blueprint.

The builders, who teamed up as the Pebble Partnership, said Friday that EPA "has not changed its deeply flawed approach" for the review.

The Northwest Transmission line is a 344 km, $600 million taxpayer-subsidized hydroelectric corridor. Despite receiving $130 million in federal "green infrastructure" funding and over $300 million from BC Hydro so far - much of that covering $200 million in ballooning cost overruns - it is designed to power mining operations in the Sacred Headwaters region, such as Imperial Metals' Red Chris proposal. Contractors clearing the right-of-way for the NTL have piled the cut trees into giant fifty foot tall tipi-shaped piles. Instead of selling the wood – some 490,000 cubic metres are being cut to clear corridor – the trees are simply being burned, with towers of flame turning the once living forest into smoke and ash.

An open letter issued to Canadians by Royal Bank of Canada President and CEO Gord Nixon (read here) apologizing for his company's decision to shift 45 Canadian jobs to imported temporary foreign workers from India reflects a growing concern over the issue. RBC's predicament is just the latest incident calling into question the Harper Government's foreign temporary worker program, which permits Canadian companies to pay imported employees from other countries 15% less than equivalent Canadian workers. The issue was brought into focus earlier this year with the controversy over a Chinese-owned mine in northeast BC planning to import 200 foreign labourers.

Read this opinion piece by blogger Laila Yuile, arguing against increased US coal exports through terminals on BC's coast. (April 7, 2013)

Occasionally, I can’t help but wonder how much the global economy takes advantage of British Columbia’s reputation for being easygoing and complacent.

Case in point is the recent application for Fraser Surrey Docks to develop a direct coal transfer facility. The idea of coal expansion has people up in arms — rightfully so — particularly south of the Fraser River and along the Sunshine Coast.

The heart of the controversy is centered on taking so-called “dirty” coal mined in Wyoming and exporting it from Canadian ports, specifically from ports here in B.C. This new proposal involves shipping thermal coal, which is the kind of coal burned only for energy, to Fraser Surrey Docks, where it would be loaded onto barges and taken to Texada Island to a storage facility. From there, it would be loaded onto freighters to be shipped overseas. It’s a controversial move that some in B.C., and elsewhere, say we should halt immediately.

I agree. There should be no expansion to ship coal to Texada, and for good reason. We already ship far too much of it without regard for the environment or the people who live along the rail routes that take the coal to our ports. The coal dust coming off open rail cars coats furniture, homes and our lungs. It impacts air quality, in particular with the increase in diesel exhaust resulting from increased train traffic.

Local ports are already the starting point for a large portion of the coal shipped overseas and the new application from will increase the amount of coal travelling through our communities substantially, bringing a stark question forth to the public.

Why is B.C. exporting U.S. coal? Why isn’t this coal simply being shipped out of U.S. ports instead of being transported to Canada for shipping overseas? The simple answer is U.S. ports don’t want it. Many American authorities up and down the U.S. coast have decided the risk and opposition of communities is too great to allow any further coal export expansions. In the face of strong opposition, they are saying “no” time and time again.

Read more: http://vancouver.24hrs.ca/2013/04/07/us-coal-export-a-dirty-job-so-let-the-us-do-it-themselves

Howe Sound is a world-class area. It’s taken a hell of a beating since my Dad, Mom and I fished it back when if you didn’t get a fish you must have forgotten to put a hook on your line. Eagles have returned to how they were in the days when I was a boy and so have porpoises. Whales are being sighted again. Now in the midst of this recovering of our heritage, a company called Burnco wants to build a 77-hectare gravel pit running day and night all year. In doing this they will excavate the entire estuary from one side of the valley to the other, thus eliminating one of only three estuaries in Howe Sound.

Read this blog from Westcoast Environmental Law on a recent landmark legal decision from the Yukon which undermines "free entry" - a mining industry practice which allows companies to enter land for the purposes of staking mining claims, without obtaining permission. The court found "free entry" violates constitutional obligations to consult and accommodate First Nations. (January 10, 2013)

 

The decision of the Yukon Court of Appeal in Ross River Dena Council v. Government of the Yukon - delivered just days before the end of 2012 (on Dec 27th) – may force governments across Canada – including in BC – to rewrite their mining laws.  The decision essentially holds that the “free entry system” – a system of allocating mineral rights that is central to mining law in much of Canada, including BC – is inconsistent with the obligation of the Crown to consult First Nations on decisions that may impact their Aboriginal Title and Rights. 

 

What is “Free Entry”

At the root of the conflict in the Ross River Dena case is the free entry system, which has given the mining industry unrestricted access to “stake a claim” on most public, private and First Nations lands since the time of the gold rush, based on the antiquated assumption that mining deserves priority over all other land uses.  Our 2004 Report – Undermining our Future – explains the rights typically associated with free entry  (here’s the 2 page summary version), and some of the reasons why it is a cause for concern:

There are three primary rights associated with the law of free entry:

• the right of entry and access on lands that may contain minerals;
• the right to locate and register a claim without consulting the Crown [or First Nations]; and
• the right to acquire a mineral lease with no discretion on the part of the Crown.

A core difficulty with free entry lies in the non-discretionary way it provides priority to mining rights over others, including private landowners, and other resource users, such as timber, oil or gas, and tourism operators. These other users are governed by a discretionary system, whereby the Crown decides how and whether tenures should be granted, and retains the ability to decline allocating these rights for a particular policy reason. The lack of discretion in the free entry system means that no consideration of environmental values occurs when mineral tenures are granted, and the environment is left unprotected.

 

The Crown has also taken the position that because of the discretionary nature of the free entry system, it has effectively legislated itself out of its constitutional duties to First Nations – a position rejected by the Yukon Court of Appeal in the recent Ross River Dena case.

 

First Nations and Free Entry: Ross River Dena Council v. Government of the Yukon

 

The territory of the Ross River Dena, who are part of the Kaska Nation, stretches over a vast area of 63,000 km2 in the South Eastern Yukon.  The Ross River Dena Council recently challenged the free entry system, asserting that the Government of the Yukon had an obligation to consult with them before recording quartz mining claims in the Ross River Area.

 

The Yukon Supreme Court held that the Crown did have a duty to consult with First Nations on the recording of a mining claim, but could meet this duty by simply giving notice to the affected First Nation after the grant of the mineral claim. The Yukon Court of Appeal has soundly rejected this approach, holding that something more than mere notice is required:

 

It is apparent that the judge considered the open entry aspects of the Quartz Mining Act to be essential to the mining industry, and considered that any requirement of consultation greater than the mere furnishing of notice claims would be impractical.

I am of the opinion that the judge erred in his analysis.  I fully understand that the open entry system continued under the Quartz mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting.  I also acknowledge that there is a long tradition of acquiring claims by staking, and that the system is important both historically and economically to Yukon.  It must, however, be modified in order for the Crown to act in accordance with its constitutional duties. 

The potential impact of mining claims on Aboriginal title and rights is such that mere notice cannot suffice as the sole mechanism of consultation.  A more elaborate system must be engrafted onto the [free entry] regime set out in the Quartz Mining Act.  In particular, the regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected.

 

On the basis of this reasoning, the Court of Appeal allowed the appeal, and held that the Government of the Yukon “has a duty to consult with the plaintiff in determining whether mineral rights on Crown lands within lands compromising the Ross River Area are to be made available to third parties”, as well as prior to allowing mineral exploration activities.

Read more: http://wcel.org/resources/environmental-law-alert/yukon-court-decision-could-force-bc-overhaul-its-antiquated-mining

Read this shocking story and check out related video from APTN on the link between toxic sewage from a De Beers diamond mine near the Attawapiskat reserve and the highly-publicized housing crisis the community faces. (Dec 13, 2012)

While the housing crisis in Attawapiskat has the country’s full attention, it was an event on March 5, 2005, that pushed the community toward its current dire state of affairs.

Attawapiskat resident Jackie Hookimaw still remembers that moment.

“My father, he noticed at three in the morning…there was a big awful smell and there was something leaking into the basement,” said Hookimaw.

A sewage backup flooded the dirt basement floors of several homes in the community, including Hookimaw’s parent’s home.

The sewage backup happened around the same time that De Beers, the international diamond company currently operating a mine 90 kilometres from the community, disposed their sewage sludge into the community’s lift station, said Hookimaw.

Documents obtained by APTN National News back Hookimaw’s claim.

Ontario First Nations Technical Services was called in to assess the situation and its engineers concluded that the De Beers discharge may have been behind the sewage backup that ended up in the basements of homes in Attawapiskat.

“What is currently known is that De Beers discharged a load of sewage into the pumping station. This might have precipitated the overloading of the pumping station, thereby causing sewage backup,” said the engineering report.

The engineers also noted that the federal government was informed of the problems, but Ottawa did little to try to fix things, according to a follow-up report by different engineers with First Nations Engineering Services.

“The general condition of the pump control panel is very poor. There is a key switch to control manual selection of the pumps. It is very difficult to operate and may fail at anytime,” the report noted.

The report found that the system was very fragile and at high risk of failing.

“There is no overload protection. This is an extremely risky way to run a pump,” the report said.

De Beers was told about the reports by APTN National News, but a company spokesman said they knew nothing about it.

“I’m sorry, I’m not familiar with the story you’re talking about,” said Tom Ormsby, spokesperson for De Beers.

In 2009, the warnings from engineers proved prophetic. There was another sewage backup which displaced more people, forcing many to be evacuated.

Aboriginal Affairs refused to pay for the evacuation and the band was forced to foot the bill.

Seven years after the first sewage backup and the Hookimaw family home remains empty.

Read more and watch video: http://aptn.ca/pages/news/2011/12/13/de-beers-decision-to-dump-sewage-into-attawapiskat-played-role-in-current-housing-crisis/

Read this column by Rafe Mair in TheTyee.ca, offering the mainstream media the questions they should be posing relating to the environment to candidates in the lead-up to BC's provincial election this May. (Jan 7, 2013)

This will be, at long last, the year of the environment in B.C. For the first time in my memory, leaders debating in the upcoming election will have to answer questions about the environment.

It will be a strange feeling for those who have slugged it out in the trenches since the 1960s only to be ignored by the media who think that the only issues are those they have acknowledged to be so, and no others.

For decades the media's agenda has refused to reflect the demonstrable public concern that spawned Greenpeace, the Sea Shepherd Society and may others including the Wilderness Committee, the Living Oceans Society, the Georgia Strait Alliance... I'm already getting into trouble because I can't possibly name them all. I especially must mention the great work at sea by Paul Watson, on whose board of advisors I have sat on for some 20 years, and Joe Foy and his colleagues at the Wilderness Committee with whom I have shared many a podium.

For decades the media has had the benefit of the hard information and well-grounded alarms provided by such organizations, and have regularly treated them as "special interests" rather than guardians of all our interests.

Now, however, the environment is so obviously a pressing issue at the heart of nearly all key election issues in British Columbia that any news person worth their salt must take notice. Let me be of help, then. I will make the media's job easier by providing a handy reference of questions that should be posed to every candidate who comes near a reporter's pad or microphone.

Read more: http://thetyee.ca/Mediacheck/2013/01/07/BC-Candidate-Questions/

Read this story from the Financial Post on the 170 aboriginal legal victories which reinforce the rights and title enshrined in the Constitution Act, meaning that corporations and governments who want to  develop resources in Canada today must engage proactively with First Nations or prepare to see their projects fail. (Dec. 14, 2012)

Canada is orchestrating a big push to accelerate development of its natural resources, but behind the hype there is a shifting and tense legal landscape. First Nations are on a big winning streak in the courts that has empowered them to have a say on projects in big parts of the country.

The tension is pushing corporations to spend huge dollars to keep the peace and move projects along in areas First Nations claim as their traditional lands.

But the approach is piecemeal and there have been few consistently successful strategies. Tension, frustration and confrontation abound. Lawyers, consultants and vested interests fuel and feed off the tension, making it hard to come up with solutions.

Many projects worth billions of dollars have been delayed or sunk altogether.

They include scores of mining, forestry and pipeline projects such as the now-shelved Mackenzie Valley gas pipeline in the Northwest Territories. The Northern Gateway pipeline could be next unless accommodation is found with opposed First Nations in the B.C. interior and on the coast.

Bill Gallagher, a former federal government regulator, oil and gas lawyer, treaty negotiator, and author of a new book, Resource Rulers, Fortune And Folly on Canada’s Road to Resources, argues there is a better way.

“The current situation in terms of access to resources, with the overarching tensions, has become unsustainable,” Mr. Gallagher said in an interview. “That is the key to the whole thing. Recognizing that Plan A has not worked; let’s put a Plan B together.”

The good news: Canadian First Nations are not opposed to development.

The wakeup call: Corporate interests need to accept what the courts already have — that First Nations now hold the balance of power in deciding the fate of Canada’s resource projects because they have rights that others don’t.

It’s a power Mr. Gallagher says is backed up by 170 legal victories — the biggest winning streak in Canadian legal history — that give First Nations a say in how resources are accessed and developed in every region of the country.

The wins are underpinned by the Canadian constitution. When it was repatriated in 1981 by the Liberal government of Pierre Trudeau, First Nations won the inclusion of aboriginal and treaty rights, as well as blanket protection in the Charter of Rights and Freedoms.

These key measures today comprise the fundamental law of Canada and form the underpinnings of the ensuing native legal winning streak, Mr. Gallagher writes in his book.

The new landscape means the “minimalist approach” used by many resource companies in dealing with Canada’s aboriginals is inadequate.

The new approach will have to involve revenue sharing, building trust and treating First Nations as full partners, perhaps even invite them to be co-applicants before regulatory boards — that’s what it will take to win backing for pipelines in the future, including Northern Gateway, he said.

“As long as [industry] keeps pushing [projects] in the regulatory process, and lawyers are doing all the speaking, that element of trust never gels,” he said. “The process is seen as stacked in favour of industry, and you have these constant challenges.”

Locking up First Nations support goes a long way to tempering environmental movement opposition, Mr. Gallagher said, because the green groups don’t have the same legal standing without aboriginal co-operation.

It’s a conclusion Mr. Gallagher came to by following the evidence.

A negotiator in many of Canada’s resource projects, including the Voisey’s Bay nickel project in Newfoundland, Mr. Gallagher has kept score of the changing legal landscape in many ways — including by way of a map of Canada he keeps in his Waterloo, Ont., home.

It’s sprinkled with coloured pins: red dots where First Nations won a major court case, blue dots where a project crashed or was reconstructed in response to First Nations’ opposition, green dots for wins by the environmental movement that led to huge environmental reserves, yellow dots for projects that get things right the first time.

Indeed, while Canadians have heard plenty about “negative power” or aboriginal opposition to resource projects, there are also many First Nations that are open for business, such as the Haisla Nation in British Columbia and the Inuvialut in the Northwest Territories.

Mr. Gallagher points to the Suncor Energy Inc. and Syncrude Canada Ltd. oil sands projects for doing it right and that today employ thousands of aboriginals and support aboriginal enterprises.

Mr. Gallagher said he is glad there are high-profile national debates over the desirability of oil sands growth and of oil sands export pipelines because they highlight the rise of First Nations and could lead to new approaches.

“The oil sands are essentially encircled with important native legal wins, and pipeline routes extending out from the oil sands are running directly into powerful legal precedents,” he said.

“I think these projects have underestimated the real landscape,” he says. “They may have got the geology right, the geography right and even the marine patterns to some extent right, but they have missed the native empowerment landscape.”

But Mr. Gallagher warns proponents of projects usually get only one chance for a positive relationship — at the beginning — before the various sides are so “lawyered-up” that the conflict feeds on itself.

Read more: http://business.financialpost.com/2012/12/14/170-legal-victories-empower-first-nations-in-fight-over-resource-development/