The battle over an open pit gold and copper mine in northern B.C. reached a new level this week in Federal Court. The case is the latest chapter in the fight over Red Chris mine, a large proposed project amidst a mining boom gathering speed in the province.

Sierra Legal Defence Fund, on behalf of MiningWatch Canada, is seeking an order from the federal court to stop the Red Chris mine project and involve the public in the environmental assessment process.

Their case is also a test for Section 21 of the Canadian Environmental Assessment Act (CEAA), which outlines projects that require public consultations. Sierra Legal argues that under the legislation, the Red Chris mine had to be considered as a major project and therefore public consultations should have been allowed.

"We are fighting for the fundamental right of Canadians to be consulted before the construction of large mines, with such irreversible environmental consequences, can take place," said Joan Kuyek, MiningWatch national coordinator.

Public right to consult?

In October 2003, the federal government amended the Canadian Environmental Assessment Act (CEAA) to facilitate public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada.

Under the act, a metal mine development producing 3,000 tons of ore per day must undergo a comprehensive assessment, which includes public participation. The proposed Red Chris Mine could produce 10 times the targeted number. Yet the Department of Fisheries and Oceans (DFO) and Natural Resources Canada (NrCan) undertook a simple screening assessment that did not include public participation, Sierra Legal alleges.

"This case is just an atrocious example of non-respect of the public. If we lose, it's going to be awful for a lot of people," said Kuyek.

Long controversy

The proposed Red Chris Mine is a large open-pit copper-gold mine and milling operation which will process over 30,000 tons of ore per day over a mill life of at least 25 years. The site is located in the Stikine watershed in northwestern B.C., 18 kilometres southeast of the town of Iskut, on a reserve of the Tahltan First Nation.

The Red Chris Mine has long been controversial in the North, where critics say it threatens wildlife and the Tahltan nation's sacred lands. In 2005, Red Chris Mine went through a provincial environmental assessment where the public -- among them the Tahltan nation -- expressed their concerns.

About a year ago, First Nations women from Iskut also raised a blockade against BCMetals, arguing that the company should not be allowed to degrade fish spawning grounds without the consent of the nearby community.

MiningWatch believes the mine will destroy sustainable fishing, trapping and hunting territory. It could leave behind 183 million tons of toxic tailings and 307 million tons of waste rock, which will likely need to be treated for acid mine drainage for over 200 years.

Caught by surprise

In 2004, DFO had announced it would conduct a comprehensive study of the Red Chris Mine project, including public consultations. Later that year, DFO advised the CEA agency that a comprehensive study of the Red Chris Mine was no longer required.

DFO acknowledged that the proposed capacity of the Red Chris mill exceeded the threshold for a comprehensive study but advised that because it would exclude the mill from the scope of the project, a comprehensive study was no longer required.

At that point, Kuyek says, MiningWatch expected there would be a consultation at the federal level regarding the Red Chris Mine.

"When the news came up, I wasn't too much worried. We had assumed we would be involved. Three months after, we realized it was a final decision," said Kuyek.

In May 2006, Natural Resources Canada and the DFO finally made public their opinion that the Red Chris Mine would not pose a significant threat to the environment.

Who has the power?

In court this week, Sierra Legal's Lara Tessaro, on behalf of MiningWatch, asked for a judicial review of the actions of DFO and NrCan in the environmental assessment of the Red Chris mine.

"We're here to present the ongoing failure of responsible authorities at the DFO and NrCan to perform what the applicants say is their mandatory duty to express," said Tessaro in her opening statement.

They argue that the federal government and the British Columbia Environmental Assessment Office did not undertake one singular, harmonized environmental assessment of the Red Chris Mine. The environmental assessment is implemented to minimize or avoid adverse environmental effects before they occur and incorporate environmental factors into decision-making.

According to MiningWatch, there's no room for interpretation under the new act. But the owners of Red Chris Mine, BCMetals, argue that federal authorities have discretionary power to greenlight projects.

The TrueNorth case

BCMetals bases its defense on TrueNorth, a case with striking similarities. On August 30, 2000, Alberta-based TrueNorth Energy had announced its plans for an oil sands mine north of Fort McMurray. TrueNorth's proposal entailed taking water from Fort Creek and seemed likely to damage the fish habitat.

The scope of the DFO environmental assessment did not satisfy critics of the project, and included no public consultation. The Pembina institute brought the case to court, where the judge dismissed the application, ruling the DFO had properly exercised its discretionary power.

According to MiningWatch, the 2004 decision had direct consequences on further projects. Since then, Kuyek told the Tyee, 20 mining projects across Canada have gone through the DFO with minimal environmental assessments and without public consultation.

Federal attorney Ward Bansley dismissed what he called "absurdities" in arguments presented by Sierra Legal Defence Fund.

The attorney wondered why two levels of governments should duplicate the environmental reviews. He also told the court it would be a waste of time to conduct public consultations if authorities don't yet know a project is likely to go forward. He also noted that mining firms might manipulate its submissions to please the public and change it once the assessment is done.

Sierra Legal is slated to resume its arguments today, the last day of the hearing.

The Tyee will update this story when a decision is reached in the case, likely in early July.

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• The Seizure at Telegraph Creek
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