The Nisga’a Nation is taking the province of British Columbia to court over an environmental assessment certificate issued for a proposed molybdenum mine on the north coast of B.C.
And the company wanting to build the mine, Avanti Mines, has said it will oppose the petition and remains confident in the project.
Legal proceedings against the province of British Columbia began July 31, with the Nisga’a Nation alleging that the province breached its treaty obligations by issuing an environmental assessment certificate in March for the proposed Kitsault Mine project before the assessment was complete.
“The concerns raised by the Nisga’a Nation in these court proceedings are the same concerns the Nisga’a Nation raised for over a year during the environmental assessment, and are concerns the Nisga’a Nation attempted to resolve without court intervention in the Nisga’a Treaty dispute resolution process,” said Mitchell Stevens, president of Nisga’a Lisims Government.
The lawsuit alleges that the province failed to properly assess the environmental impacts of the project on water quality, marine habitat and human health, as well as the social, economic and cultural effects on the Nisga’a citizens.
“The Nisga’a Nation is simply seeking compliance with the obligations set out in the Nisga’a Treaty, obligations which British Columbia undertook to abide by,” he said.
The Ministry of Environment said the province takes the Nisga’a Final Agreement very seriously.
“Nisga’a Nation consultation was a central aspect of this environmental assessment... We continue to work with the Nisga’a Nation, in good faith, on the interpretation of the environmental assessment chapter of the Nisga’a Final Agreement,” said a ministry spokesperson, noting that the province is "of the view that negotiation is preferred over litigation."
And the company that wants to build the mine remains confident of the project, while acknowledging that the litigation against the province is a step back.
“It is a bit of a setback,” said Avanti Mines president Craig Nelson, noting that doesn’t directly impact the project’s present activities, which are permit-related.
“It’s more with the province than it is with us but it has such a profound impact on our project.” he said.
Nelson said the assessment process was robust, with the company spending more than three years and $15 million on the process.
“We are confident that the province’s environmental assessment process is robust and that all environmental and human health issues have been thoroughly addressed – years of assessment and thousands of pages tell us so.”
Chapter 10 of the Nisga’a Treaty puts additional obligations on an environmental assessment that go above and beyond the provincial and federal assessment processes.
“I think the Nisga’a are interpreting that clause as it in effect gives them a de-facto veto if they’re not happy with the government’s conclusions – and it doesn’t say that,” he said. “It says we need to examine the impacts and our study came up with the distinct conclusions on a whole variety of potential areas that there were no significant impacts.”
It is now up to the courts to decide if the assessment is in compliance with the treaty. Avanti intends to oppose the petition.
“We think that both the federal and provincial government were very, very cognisant of the treaty during the development of our environmental impact statement,” he said. “We’re confident in particular with the B.C. process – it’s been challenged a number of times in courts by aboriginal groups, and ultimately a decision has never been overturned by the courts.”
Avanti and the Nisga’a Nation are no closer to reaching a benefits arrangement.
“We’ve made three offers for impact benefits agreements over the years, and the sign is in the window that says the Nisga’a Nation is open for business, but unfortunately, from a businessman’s perspective, the door always seems to be locked,” said Nelson.
The Nisga’a Nation has said it supports development that complies with the environmental protections under the treaty.
“Indeed, the Nisga’a Nation is currently working with various proponents on large and small scale projects on Nisga’a lands, and has supported numerous projects undertaken on Nisga’a lands,” said Stevens. “Unfortunately, the assessments required under the Nisga’a Treaty for this project have not yet been properly completed, and compliance with the Nisga’a Treaty is a necessity.”
Molybdenum, used as a strengthening agent in steel, has been mined twice at Kitsault with the last attempt ending in 1982 after a brief period. A drop in prices made the mine uneconomical and a town built for workers and their families was abandoned.
Avanti would spend close to $1 billion in developing its mine, employ 700 workers during construction and 300 afterward over a 16-year operation life.