Court allows massive mine on doorstep of Jasper National Park despite objections from feds and conservationists

Sierra Club of Canada
2005-08-18

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Open-pit coal mine expected to destroy habitat for grizzlies and thousands of birds

EDMONTON, AB – Canada's Federal Court released a disappointing decision late yesterday that will allow a massive open-pit coal mine development on the doorstep of Jasper National Park to proceed – despite serious concerns from conservation groups from across the country and officials within the federal government.  The conservation groups are now reviewing the 45-page decision to determine if there are grounds for appeal.

Sierra Legal Defence Fund launched the court case on behalf of five Canadian conservation groups that are opposed to allowing the substantially revised Cheviot mine project to proceed without undergoing a new environmental assessment. The groups asserted that the project changed significantly since it was first proposed in 1996 and that an updated environmental assessment was required to address its effects. 

"We asked the Court to ensure that the glaringly obvious environmental concerns regarding this project are appropriately mitigated," said Sierra Legal lawyer Justin Duncan. “Simply put, the federal government authorized activities that will result in the destruction of the habitat for grizzlies and thousands of migratory birds and the Court was unable to correct this oversight.”

The case was launched on behalf of Pembina Institute for Appropriate Development, Sierra Club of Canada, Nature Canada, Jasper Environmental Association and Alberta Wilderness Association. The groups argued that the federal government’s authorization of the first section of the mine should be quashed because it would result in the destruction of migratory bird habitat and contravene the federal Migratory Birds Convention Act.

"They expanded the mine site, taking in the McLeod River valley and severing wildlife habitat, including that required by the region’s threatened grizzly bear population," said Dianne Pachal of the Sierra Club of Canada. "That the Court and the federal government would allow this type of development without the scrutiny of an environmental assessment is devastating for the land, watershed and wildlife habitat."

The open-pit coal mine, the length of which is comparable to the width of Alberta’s capital, Edmonton, is proposed for a mountain area that has been designated by the federal and provincial government as ‘nationally significant’ for its unique natural features.  One-fifth of the mine was approved by the federal authorization challenged in court.  If the open-pit mine is fully developed, the Canadian Wildlife Service estimates that habitat for up to 5,000 songbirds will be lost. Serious concerns were raised by both Environment Canada and Parks Canada officials with regards to the modified project’s environmental impacts.

"It is terribly unfortunate that the court failed to recognize how this decision will adversely affect the region's songbirds, as well as one of the largest breeding populations of Harlequin ducks in Alberta," said Julie Gelfand, president of Nature Canada. "The Cheviot area is rich in biological diversity and we are very disappointed that an open-pit mine will exist less than three kilometres from Jasper national Park, which is recognized as a UNESCO World Heritage Site."

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For further information please contact: 
Nature Canada: Lynn Barber/Julie Gelfand (780) 427-8124
Sierra Club of Canada: Dianne Pachal, Alberta Wilderness Director (403) 234-7368
Sierra Legal: Justin Duncan, Staff Lawyer (416) 368-7533 ext. 22
Jasper Environmental Association: Jill Seaton (780) 852-4152

For maps, photos and background see:  www.sierraclub.ca/national/cheviot

Synopsis of the Federal Court Decision
On the Challenge to the Federal Authorization for the Cheviot Open-Pit Mine

Case Heard:  by Madam Justice Judith Snider, June 14 – 15 in Edmonton, Alberta
Decision Issued:  Aug. 17, 2005
Case brought forward by: Pembina Institute for Appropriate Development, Nature Canada (Canadian Nature Federation), Sierra Club of Canada, Alberta Wilderness Assoc. and Jasper Environmental Assoc.  The Sierra Legal Defence Fund was the legal counsel for the groups.
Deadline for appeal to Federal Court of Appeal (if pursued): Sept. 30, 2005

The Court asked itself four questions:
 
1. Is an updated Environmental Assessment (EA) required for the modifications (the changes the company made to the original development that was assessed by the joint  federal-provincial Review Panel in 1997 and 2000)?
2. Of those modifications, is the haulroad development specifically a trigger for environmental assessment given that part of it traverses the causeway built across Cheviot Creek?
3. Did the Department of Fisheries and Oceans (DFO) err in failing to ensure implementation of mitigation measures?
4. Did the authorization issued by DFO violate the Migratory Birds Convention Act (MBCA)?
 
The Court answered each question as follows.
 
Firstly, the Court held that a completed EA does not need to be reopened unless the subject matter of the modifications was included within the EA as originally scoped.  So, as the haulroad development was not part of the originally scoped project as assessed by the federal-provincial Review Panel in 1997 and 2000, DFO doesn't have to look at it now.   Alternatively, an EA would have been required, if the haulroad development represented a trigger of federal jurisdiction - for example, if there was evidence that a fisheries permit was needed for the haulroad.
 
Secondly, the Court held that the portion of the haulroad going over the causeway/dam constructed for it across Cheviot Creek did not represent a new trigger as a dam on Cheviot Creek had been assessed previously for the mine pits.  The fact that the haulroad now goes over the causeway/dam was viewed as largely irrelevant for the purpose of triggering an EA.
 
Third, with regards to mitigation measures, it was held that specific measures do not have to be carried out.  Rather, DFO just needs to ensure that the federal response to the Review Panel is carried out.  Also, regarding measures for Harlequin ducks specifically, it was held that DFO's decision not to incorporate measures in the authorization for Harlequin ducks was reasonable given the uncertainty surrounding the measures Environment Canada actually wanted in the authorization.
 
Finally, it was held that since DFO is not directly in control of the mine project, it is not responsible for ensuring compliance with the MBCA.  When evidence of damage to migratory birds arises, it will then be possible to prosecute the company to address such harms under the MBCA.

For background information and updates on the proposed Mountain Wildland Park and the Cheviot mine issue, see http://www.sierraclub.ca/national/cheviot

To be on the contact list for updates and Action Alerts email Dianne Pachal, Alberta Wilderness Director, Sierra Club of Canada dpachal@myexcel.ca

Sierra Club of Canada, August 24, 2005

            

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