The Kerr-Sulphurets-Mitchell (KSM) mine, if built, would be one of the largest gold-copper mines in the world. Proposed by KSM Mining ULC, a wholly owned subsidiary of Seabridge Gold, the project would feature four open-pit mines and two underground mines in Northwestern BC, near the BC-Alaska border. The mine will also include tailings ponds designed to hold up to 2.3 billion tonnes of wastewater — 28 times the size of the tailing’s ponds involved in the Mount Polley disaster. These tailing ponds will require maintenance for over 250 years, long past the operational lifespan of the mine! Moreover, the mine is located in the drainage of the Unuk and Nass River which supports several species of pacific salmon and eulachan. A tailings dam failure would represent a grave threat to the Nass and Unuk watersheds which are of significant cultural, recreational, and economic importance to local communities.
On behalf of the SkeenaWild Conservation Trust and the Southeast Alaska Indigenous Transboundary Commission, Ecojustice has filed a judicial review to challenge the British Columbia Environmental Assessment Office’s (EAO) decision that the Kerr Sulphurets Mitchell (KSM) mine has been ‘substantially started’.
Under B.C.’s Environmental Assessment Act, projects must be substantially started within a set period, or their environmental certificates expire. If it expires, the company must complete a new environmental assessment using up to date information and laws. In contrast, if the project is found to be substantially started, its environmental certificate is effectively in place indefinitely.
The KSM mine’s environmental certificate is based on an environmental assessment done more than 10 years ago using a now outdated environmental assessment law. Ecojustice says the project has done too little work to count as ‘substantially started’ and needs a new environmental assessment under today’s updated and more rigorous Environmental Assessment Act.
In order to be substantially started, a project must be started in ‘its essentials in a real and tangible way.’ Our clients argue that the EAO wrongly determined the mine was substantially started, as limited physical work — such as road building and tree clearing — has been completed.
Additionally, BC’s Environmental Assessment Act and existing case law requires that the EAO focus on the physical work completed. However, in making the decision, the EAO considered irrelevant information, including that a substantial start decision would support the mining company in obtaining a joint venture partner, which the company requires to advance the project. Ecojustice and our clients will argue that the EAO should not have considered this factor in their decision making, which is supposed to be focused on physical work completed by the company.
Additionally, the KSM mine’s now over decade old environmental assessment predates significant legislative changes, such as the updated Environmental Assessment Act and the Declaration on the Rights of Indigenous Peoples Act, and a deeper understanding of climate change, threats to salmon populations, and lessons learned from the Mount Polley mine tailings disaster.
The legal challenge seeks to overturn the EAO’s decision, ensuring that projects like KSM are assessed under current environmental laws and using up to date information and science. A victory in this case could set an important precedent and prevent companies from holding on to environmental certificates based on outdated information and science.
