Joint Review Panel Exceeds Mandate with Use of Sustainability Framework
Submitted by Shawn Denstedt & JoAnn Jamieson, Osler, Hoskin & Harcourt LLP

The recent joint review panel decision of the Kemess Project illustrates a recent trend toward expanding the role of sustainable development in environmental assessments. By using a sustainability framework to make its decision, the panel exceeded its mandate under existing environmental legislation.

The federal/provincial environmental assessment joint review panel (the Kemess Panel) for the Kemess North Copper-Gold Mine Project (the Kemess Project) released its report on September 17, 2007. The Kemess Panel recommended the rejection of the Kemess Project on the basis that the economic and social benefits of the project, on balance, were outweighed by the “risks of significant adverse environmental, social and cultural effects.”

Northgate Minerals Corporation had proposed to expand the existing Kemess South Mine, located in northern British Columbia, with a new open pit and modifications to the mill. The Kemess Project proposed to enlarge Duncan Lake to store toxic tailings and waste rock resulting from the expansion.

Pursuant to the Canadian Environmental Assessment Act (CEAA), the B.C. Environment Act and the Kemess Panel’s Terms of Reference, the Kemess Panel was required to evaluate the potential environmental effects of the project and determine if there were likely significant adverse effects that could not be justified in the circumstances, taking into account the proposed mitigation measures.

For its review, the Panel formulated a sustainability framework comprised of five “perspectives” -- namely, environmental stewardship, economic benefits and costs, social and cultural benefits and costs, fairness in the distribution of benefits and costs, and present versus future generations. The ultimate decision of the Panel was based on a “broad and holistic” approach within this sustainability framework.

Consistent with its mandate, the Panel did make significance determinations in respect of the potential project effects. However, it then reassessed the issues within its sustainability framework. The Panel noted that the project's benefits would accrue for only a short period (two years of construction and 11 years of production); whereas, key adverse effects “may continue for several thousand years.” The Kemess Panel also took a negative view of the fact that the bulk of the project benefits would accrue to the proponent; whereas, the local aboriginal communities would shoulder the bulk of the project risks.

Notwithstanding the Panel’s various significance determinations in advance of its framework analysis, its ultimate rejection of the project appears to have been rooted in an analysis of the perceived “risks” of significant adverse effects rather than their likelihood. For example, under the “Environmental Stewardship” criterion analysis, the Panel questioned whether the “site management regime mitigation measure” was actually realistic given the amount of time over which the mitigation measure would have to be in place. By making such a statement, the Panel seems to undercut its initial finding of “no likely significant environmental effects,” based on a lack of faith in the proponent’s proposed commitments and mitigation measures.

Another factor that appears to have swayed the Panel was its analysis under its “Present versus Future Generations” criterion. The Panel’s analysis focused on whether it was appropriate to pass risks on to future generations rather than analyzing whether the risk created a likely significant adverse effect, as required under environmental assessment legislation.

The decision discussed above illustrates that a review panel, on its own initiative, is moving towards expanding the role of sustainable development in its analysis and decision-making within environmental impact reviews. The potential problem with this development is that it is not consistent with, nor is it supported by, existing environmental assessment legislation. It therefore presents a risk to project proponents presently bringing forward their projects within the current legal framework.

Environmental assessment is a legal process and the express direction articulated in environmental assessment legislation must be respected and adhered to. If policy-makers wish to see sustainable development take on a more prominent role in the process, those legislative changes should be pursued.