Right now, Metro Vancouver is embroiled in a court case with Fraser Surrey Docks LP (FSD). The outcome of that case, which is being fought over a relatively minor $1000 fine, will have important implications for our province’s ability to regulate air quality.

Here’s the essence of it: Air quality falls within provincial jurisdiction. This means that the provincial government has the power to set and enforce air quality standards. The British Columbia government has chosen to delegate some of that authority to Metro Vancouver so that it can enforce those standards on behalf of the province. When Metro Vancouver tried to enforce its standards on FSD after soy bean dust was discharged in a manner contrary to regulations, the port refused to pay the fine. Their view is that ports are federal lands, under federal jurisdiction— provincial air quality laws do not apply in the same way. So the courts now have to decide if the province has the power to regulate air quality at FSD.

Why does this matter?

Because if the province can regulate air quality on port lands, it could theoretically use that power to stop certain port activities, like the expansion of thermal coal exports that is currently underway at FSD.

Thermal coal is the single biggest contributor to global warming. Unlike metallurgical coal, which is mined in B.C, thermal coal passing through our ports largely comes from the U.S., meaning that it contributes to only a handful of B.C. jobs. Stopping the expansion of these exports would represent an important step forward in the transition to a low carbon economy.

Yet, there’s also a bigger issue here: British Columbians should have a right to regulate their own air quality. After all, we’re the ones that breathe it.

Given the significance of this court case for our province, I asked the government to clarify its role. Specifically, I asked:

1. What is the government’s position on the validity of the ticket (#006035) issued to Fraser Surrey Docks LP by the Greater Vancouver Regional District for the discharge of air contaminants?
2. In your government’s opinion, how far reaching are the powers surrounding air quality that you have delegated to the Greater Vancouver Regional District? Do they include federal port lands?
3. What is the historic and current involvement of the province in this case?
4. Following question three, does the province have any plans to either remain involved or get involved in this case in the future? If so, what are these plans?

Yesterday, I received a disappointing response from the Minister of the Environment, Mary Polak. While her letter acknowledged the importance of the court case, she was clear that the government “will await the court’s decision before commenting further.”

I understand the desire not to comment on a matter that is before the courts. Yet, I would hope that with an issue as fundamental as the quality of our air, our government would be more open with British Columbians about the role they are taking in the case.

The courts will rule in the coming months on the validity of this air quality permit. When they do, we should all be looking to the provincial government to see what it will do to help stop the expansion of thermal coal exports and to protect our right to healthy air in B.C.

Introduction

Earlier this week I published an account of my recent trip to the Kootenays where I visited a number of mining operations, and met with people in local communities. Mining is a key economic sector underpinning BC’s economy. The industry directly employs 10,720 British Columbians, contributes $8.5 billion to BC’s GDP and a further $511 million in tax revenues to provincial coffers. Numerous small communities throughout our province depend on mining for their survival.

While we have much to celebrate about British Columbia’s mining industry, there are also a number of challenges that must be taken seriously. The BC Government has a critical role to play in ensuring that the standards that regulate this industry are kept up to date, and that in addition to the economic benefits mining provides our province, its social and environmental impacts are being accounted for seriously.

To explore some of the challenges facing this industry – and to highlight some of the solutions that are readily available, I want to turn to two specific and related issues. First, I want to explore how mines manage their tailings ponds. I will specifically look at what we have learned since the Mount Polley tailings pond breach.

The second issue I will examine concerns the enforcement and regulatory functions of government and whether adequate funding is being provided by government to ensure that it is managing the environmental and social consequences of mining operations.

Impacts of the Tsilhqot’in decision

Before diving into these issues, I think it is first important to acknowledge that for the mining industry in BC to continue to succeed, and do so in way that is environmentally and socially responsible, the BC government must ensure it is addressing the requirements placed on it by the Tsilhqot’in decision. We are already seeing examples of how this decision may affect mining investment. It was announced earlier this week that the BC Government bought back 61 coal licences from a mining company in the Northwest of the province, in order to provide a longer window for the BC government to engage in more meaningful government-to-government negotiations with the Tahltan First Nation.

Whether or not this specific policy tool — the re-purchasing of mining licences — becomes commonly used by the BC government, the status quo of mining development is likely to change. The Tsilhqot’in decision made it clear that First Nations have significant say, if not an outright veto, over developments on their land. Last summer the Tsilhqot’in First Nation established new rules for mining development on their titled land. These rules require companies to minimize negative impacts and provide revenue sharing with the community.

Mining companies who wish to develop new mines in British Columbia will need to put an even greater focus on consulting, and ultimately addressing the concerns of not only the BC Government, but First Nations who may have inherent title rights to the land.

 Learning from Mount Polley

The mining industry in British Columbia was rocked last summer when the tailings pond at Mount Polley breached its impoundment dam, and released almost 25 million cubic meters of tailings and waste water into the Hazeltine Creek, and down into Quesnel Lake.

I wrote about this breach when it first happened, and after visiting the mine site and the surrounding communities, I explored in detail what had happened, and what some of the consequences were likely to be. Finally, in January of this year, the Independent Expert Engineering Investigation Review Panel published their report on the Mount Polley Breach. This Panel was empowered to investigate and report on the cause of the failure of the tailings pond facility that occurred on August 4^th, 2014 at the Mount Polley Mine. In addition, they were asked to provide recommendations regarding how such an incident could be avoided in the future. It is these recommendations that I will focus on.

The Mount Polley tailings pond breach has shattered public confidence in government and industry ability to adequately protect the natural environment during mining operations. Regaining public trust and confidence is perhaps the greatest challenge facing the mining industry. First Nations, the Alaskan Government and Environmental groups have all raised similar concerns. How industry and government collectively respond to the Mount Polley breach will be critical in rebuilding this trust. And an ongoing examination of how mines are managing their tailings and waste, as well as a  determination as to whether or not these reflect best practices, will almost certainly be one of key elements of moderating the concerns of British Columbians.

The Expert review panel touched on this point at the start of Section 9 of their report. Section 9 – entitled “Where Do We Go From Here” – explored how the BC mining industry can use best practices and best available technologies (BAT) to reduce failure rates to zero.

In the introduction to this section, the Panel rejected the concept of a “tolerable failure rate for tailings dams”, citing concerns that this would institutionalize failure. To quote from their report: “First Nations will not accept this, the public will not permit it, government will not allow it, and the mining industry will not survive it”.

A similar concern was voiced this week by Alaskan government, industry leaders and First Nations, who were in Victoria to meet with Minister’s regarding their concerns about the scale of development taking place in the British Columbia.

The tailings breach at Mount Polley was cited as having raised concerns about the potential impacts on the fishing industry in the region. The Alaskan delegation also felt that the review process in British Columbia was inadequate and not placing enough focus on potential cumulative impacts.

Interestingly both the Expert Review Panel and the group from Alaska pointed to the need to change the way that tailings are managed in this province.

The panel established three conditions that  addressed the instability that is created when mines use dual-purpose impoundments, storing both water and tailings. Best available technology would dictate that where possible these two waste products need to be stored in separate facilities that are specifically designed to prevent tailings releases. Critically, this panel also noted that economic considerations cannot be allowed to be the dominant factor in determining what is feasible – the costs of another accident far outweigh the implementation of best practices and technology.

Following the establishment of the Best-Available-Technology (BAT), the Expert Panel made the following recommendations:

• “For existing tailings impoundments: Constructing filtered tailings facilities on existing conventional impoundments poses several technical hurdles. Chief among them is undrained shear failure in the underlying saturated tailings, similar to what caused the Mount Polley incident. Attempting to retrofit existing conventional tailings impoundments is therefore not recommended, with reliance instead on best practices during their remaining active life.

• For new tailings facilities: BAT should be actively encouraged for new tailings facilities at existing and proposed mines. Safety attributes should be evaluated separately from economic considerations, and cost should not be the determining factor.

• For closure: BAT principles should be applied to closure of active impoundments so that they are progressively removed from the inventory by attrition. Where applicable, alternatives to water covers should be aggressively pursued.”

The BC Government has been somewhat responsive to this report. In mid-March they announced new interim rules for tailings ponds which would require companies seeking to build a mine in BC to include the best-available technologies for tailings facilities in their application. The Ministry of Mines are currently completing a review of mining regulations that will eventually establish the new way of doing business in BC.

However in response to calls from Canadian and American groups to end the use of water based storage facilities, the Minister of Energy and Mines suggested that the expert panel’s bottom line is about reducing water storage of mine waste where you can, and reducing the risk by increasing safety factors. This statement, I fear, betrays a lack of commitment to the true underlying issue highlighted in the report – that the status quo cannot continue and that we must throw out any notion of acceptable risks. I share the frustrations of these groups that we have failed to see an open and transparent commitment to the recommendations of the Expert Report.

This process cannot be taken lightly by government. The Mount Polley breach was devastating to the community of Likely, and even today uncertainty exists as to the full extent of the environmental, social and economic costs that are faced by residents. Evidence of this uncertainty can be found in a recently research paper in Geophysical Research Letters that points to the possibility of ongoing and long-term environmental impacts from the spill on aquatic life. At the very least, long term monitoring of water and sediments in Quesnel Lake will be important.

The solutions are there — they are contained in the path forward highlighted by the Expert Panel. British Columbians deserve government to ensure that it establishes a truly credible mining regime in British Columbia, one which commands the confidence of all those who would feel its impacts. It is only under such a regime, where companies are responsible for the environmental and social impacts of their developments, that mining can be truly successful in our province.

This brings us to the second related issue facing this industry – Government’s ability to regulate and enforce the standards they set for the industry.

Professional Reliance

In 2001 after the BC Liberals were elected to their first term, they began a comprehensive core review to cut the size of government. Premier Campbell asked all government departments to prepare scenarios as to what it would look like with 20%, 35% and 50% cuts to spending. As a direct consequence of government downsizing, technical expertise within the civil service became a casualty. Instead of having technical expertise in house, the government moved towards wide scale use of Professional Reliance in the permitting process. Under the Professional Reliance approach, the Ministry relies on the judgment and expertise of qualified experts hired by a project proponent.

What is particularly important to note is that in March 2014, the Office of the British Columbia Ombudsperson released a scathing report criticizing the Professional Reliance model with respect to streamside protection and enhancement areas. The report, entitled The Challenges of Using a Professional Reliance in Environmental Protection – British Columbia’s Riparian Areas Regulation made 25 recommendations, 24 of which the government agreed to accept.

My own personal view is that the government’s approach to follow the Professional Reliance model is fraught with difficulties. The role of the government is to protect the public interest. When government is making decisions solely based on a project proponent’s expert opinion, it is very troubling. Imagine a judge in a court of law only listening to the expert opinion on one side of a case (plaintiff or defendant) and not allowing expert opinion to be submitted from the opposing side.

There is no doubt that mining plays a very important role in our economy. Mining provides us with the basic elements with which we have built British Colombia into a prosperous and successful jurisdiction. However, the mining industries’ importance to our economy does not disconnect it from its responsibility to conduct itself in a way the is both environmentally and socially responsible. The Expert Review panels report made it clear that the status quo is no longer acceptable and that change is needed. However, for industry to embrace this change, the BC government needs to step up to the plate. The lack of funding for the compliance and enforcement sections of our resource and environment ministries is putting us at risk of another accident. Furthermore, if we expect the mining industry to take the Expert Review panel’s recommendations seriously, we also need to be convinced that government takes them seriously as well.

This week we celebrate mining in British Columbia. From May 3-9 events will be held across British Columbia to highlight the importance of mining to British Columbians.

B.C.’s mining industry is one of the pillars of our economy. In 2013, the year for which most recent data is available, the mining sector contributed $8.5 billion to BC’s GDP and employed 10,720 British Columbians. It further contributed $511 million in tax revenues to provincial coffers. Mining forms the backbone of many rural communities throughout the province, supplying us with the resources we need to enjoy the prosperity we are so fortunate to have in B.C.

Our mining industry continues to play a pivotal role in facilitating the transition to a 21^st century economy. For example, without metallurgical coal, we cannot manufacture steel. Without graphite, we cannot build lithium ion batteries.

It is for this reason that I travelled to the Kootenays in April to learn more about the opportunities and challenges facing our Mining Industry in B.C. What follows is a brief report on two tours I did while I was there.

Teck Resources Ltd Metallurgical Coal Operations

Employing roughly 7,960 people and contributing $6.5 billion in gross mining revenue, Teck Resources Ltd is Canada’s largest diversified resource company, with many of its assets in metallurgical coal mining. I reached out to Teck Resources because I believe it’s important to have a clear understanding of British Columbia’s coal industry.

Five of Teck Resources’ thirteen mines are located in the Elk Valley in the Kootenays where they extract metallurgical coal. While I was there, I had the opportunity to meet with representatives from Teck Resources and to tour their Coal Mountain operations.

Those who have read my previous coal-related posts know how important I believe it is to distinguish between thermal coal, which is used for coal-fired power plants, and metallurgical coal, which is used in the production of steel. Metallurgical coal is used to produce coke. This is done via heating the coal to very high temperatures (>1000°C) in the absence of oxygen. The resulting almost pure carbon is then mixed with iron ore to create the molten iron that is turned into steel.

Thermal coal, on the other hand, is the single biggest contributor to greenhouse gas emissions in the world. It is also the most widely available of all fossil fuels and we produce very little of it here in British Columbia. Thermal coal has smaller carbon content and higher moisture content that metallurgical coal thereby precluding its use in steel making.

The overwhelming majority of thermal coal that is shipped through British Columbia ports is sourced from the United States. That coal travels through B.C. ports because Washington, Oregon, and California have taken a stand to curb their own thermal coal exports. To quote from the governors of Oregon and Washington “We cannot seriously take the position in international and national policymaking that we are a leader in controlling greenhouse gas emissions without also examining how we will use and price the world’s largest proven coal reserves.” Here they were acknowledging that the United States has the largest reserves of thermal coal in the world (237,295 million tonnes) and that their domestic market is dropping as natural gas generation increases and more renewables are brought on stream.

Teck Resources produces metallurgical (not thermal) coal here in British Columbia. The fact is that metallurgical coal is essential for building everything from windmills to electric cars because without it, you cannot have steel. Teck Resources’ five metallurgical coal mines in the Elk Valley employ about 4,000 people and together contributed $140 million in taxes to the province in 2014. Touring Teck Resources’ Coal Mountain mining operation offered an excellent view into the scale and complexities of modern metallurgical coal mining in British Columbia. I was extremely impressed by steps Teck has taken to ensure their metallurgical coal operations were as environmentally sensitive as possible. These include their approaches to reclamation, greenhouse gas reductions, acquisition and preservation of parkland for future generations, and their state of the art water treatment operations that will commence in the Fall of this year.

Now, Teck Resources does not only produce metallurgical coal. They also own and operate Highland Valley Copper and the integrated zinc and lead smelting facility in Trail. If we actually include all of Teck Resources’ operations in our province, this one company accounted for 21% of all BC exports to China in 2013. That year Resources directly employed 7,650 full-time workers with an average salary of $100,000 per year. They are expanding their operations in British Columbia and presently there are 28 job openings within the company.

Eagle Graphite

Whereas Teck Resources is British Columbia’s largest mining company, many of B.C.’s junior mining companies are quite a bit smaller. Eagle Graphite Mine is one of them.

Located in the Slocan Valley, Eagle Graphite is one of only two flake graphite producers in North America and the only one in British Columbia. Graphite is an essential component of lithium ion batteries, which are used in electric vehicles. In fact, about 95% of a lithium battery is made up of graphite. About 50 kilograms of graphite is contained in an electric car, 10 kilograms in a hybrid vehicle and 1 kg in an electric bike. Laptops and mobile phones contain about 100 grams and 15 grams, respectively.

By the end of the decade, graphite demand for electric vehicles produced in North America is projected to increase substantially, far exceeding current supply. The team at Eagle Graphite has been working hard to take advantage of this projected supply gap by proving their reserves and developing methods to efficiently extract graphite from their quarry reserves. And one of the interesting tidbits I picked up on the tour was that golf course grade sand is the by-product of producing graphite!

Touring Eagle Graphite offered a helpful insight into the opportunities and challenges faced by smaller mining firms.

Summary

My brief trip to the Kootenays highlighted the diversity of resource opportunities that have been capitalized upon in the area. What impressed me most at the locations I visited were the steps taken by all companies involved to ensure sustainability of their industry for decades to come with minimal environmental footprint. Whether it be Teck Resource’s Elk Valley coal operations or their Trail smelter powered by the Waneta Dam, Eagle Graphite’s small operation, Canfor’s Elko Mill, or Columbia Power’s Waneta Expansion Project, everyone I met was beaming with pride at the work that they do, their safety records, and the care they take to ensure their operations are as clean and sustainable as possible. After all, these people are locals and the industrial operations are literally in their backyard.

Finally, a highlight of my trip truly had to be that I can now say triumphantly “I’ve been to Yahk and Back”.

On April 8th, a group of well-informed and passionate young people gathered at the Oak Bay-Gordon Head MLA Constituency Office as part of the Defend Our Future BC Day of Action on Climate Change. This was one of 23 meetings organized at MLA offices in 12 cities across BC. The purpose of the meeting was for the youth to express their opposition to the expansion of thermal coal exports from BC. They voiced their concern about the Port Metro Vancouver proposal to increase exports of American thermal coal through the Fraser-Surrey Docks coal transfer facility and through the Texada Island facility by 8 million tons annually and the risk to the health and well-being of communities in proximity to rail lines, port facilities and power plants.

Each of the youth in attendance spoke about why they came to the meeting and how they expect their elected leaders to defend their future. They spoke of the need to reduce the use of thermal coal as a means of producing electricity and the need to develop renewable energy sources to mitigate global climate change. It was inspiring to hear from these young people as they led the dialogue about issues that matter to them, their future and the future for generations to come.

During the committee stage of Bill 12, The Federal Port Development Act on Thursday afternoon, I put forth a number of amendments in an attempt to protect the British Columbia coast from the expansion of thermal coal and heavy oil (diluted bitumen) exports. These were the amendments mentioned in my earlier post on Bill 12.  All amendments were defeated. Below I provide a brief excerpt from Hansard.

First Amendment

A. Weaver: With respect to the minister, the reason I have troubles with this legislation is…. We are not debating the Canada Marine Act. I will come to that.

Under the Canada Marine Act, the federal government can sell federal land in a port to a port authority, which could be administered by the province of British Columbia. In selling the land to the port authority, the Species at Risk Act and the Canadian Environmental Assessment Act no longer have any jurisdiction because the land is no longer owned by the federal government. It is now within the port authority, administered by the province of British Columbia.

My concern, therefore, with respect to an undertaking is that heavy oil or thermal coal experts would then no longer have to worry about Species at Risk or Canadian Environmental Assessment Act implications in any development there. The problem with that is that we don’t have anything in the province of British Columbia as a Species at Risk Act.

In essence, what’s happening in accepting an agreement like this, through an undertaking involving either coal or heavy oil, as we will discuss in section 3, is we are essentially saying that we in British Columbia can exempt such development from the federal Species at Risk Act and we have nothing to fall upon here in British Columbia. We can fall on the Environmental Assessment Act.

Frankly, with respect to what we’ve seen with Kinder Morgan and Enbridge, the province has done an admirable job in terms of representing the interests of British Columbia. I have not seen that with respect to thermal coal, and for this reason I do have two amendments I would like to bring here to specifically exclude from ‘undertaking’.

[To amend as follows:

By adding the text shown as underlined:

Section 1

“undertaking” means an undertaking, or an undertaking in a class, designated for the purposes of section 64.1(2)(a) of the Canada Marine Act; excluding an undertaking, or an undertaking in a class, relating to the import or export of thermal coal.]

That is the first amendment I so move.

The Chair: The amendment was proposed by the member for Oak Bay–Gordon Head. It reads: “‘undertaking’ means an undertaking, or an undertaking in a class, designated for the purposes of section 64.1 (2)(a) of the Canada Marine Act, excluding an undertaking, or an undertaking in a class, relating to the import or export of thermal coal.”

Amendment negatived on the following division:

The Chair: Hon. Members, stay in your seats. The member is going to move another amendment.

Second Amendment

A. Weaver: As I mentioned earlier, I have a legal backgrounder from West Coast Environmental Law, which talks about the passage of Canada Marine Act, which we’re talking with respect to the “undertaking” definition here.

That would significantly increase the powers of port authorities, allow the federal government to off-load its responsibility over shipping in federal ports, etc. The changes now allow port authorities to buy federal land and infrastructure from the government and then lease those lands to companies or authorize companies to use them for as long as the port authority has control over them.

Once sold, those lands would no longer be federal property, meaning they would not be subject to terrestrial species protection under the Species at Risk Act.

Seeing as we have no species at risk act here in British Columbia, this raises some concern, which is why I move, again, an amendment to amend as follows:

[By adding the text shown as underlined:

Section 1

“undertaking” means an undertaking, or an undertaking in a class, designated for the purposes of section 64.1 (2)(a) of the Canada Marine Act excluding an undertaking or an undertaking in a class relating to the import or export of heavy oil.]

In light of the fact that we do not import heavy oil that probably is moot, but certainly export is a big issue that’s facing us now.

The Chair: Hon. Members, if the House waives the time we will proceed right away. Do we have consent?

Leave granted.

Amendment negatived on the following division:

Third Amendment

A. Weaver: Thank you to the minister for the answer. My concern here is that the province would enter an agreement and potentially get into a position where the Species at Risk Act is not applicable or in force. I have an amendment here I’d like to move, which is to amend section 2 as follows:

[By adding the text shown as underlined:

Section 2

With the prior approval of the Lieutenant Governor in Council, a member of the Executive Council may enter into an agreement on behalf of the government.

If

(a) the province has first enacted provincial legislation comparable in power and scope to the Species at Risk Act (S.C. 2002, c. 29), and

(b) any and all port developments subject to the agreement that would have previously triggered a review under the Species at Risk Act (S.C. 2002, c. 29) prior to the royal assent of Bill C-43 (2014), automatically trigger a review under the legislation referenced in subsection (a).]

On the amendment.

A. Weaver: This is a piece of legislation trying to ensure that British Columbia enforces species-at-risk legislation. If it doesn’t enforce the federal one — which it can’t, of course — it has to produce its own if it’s going to enter an agreement as per the discussion here.

The Chair: Hon. Members, it’s an amendment moved by the member for Oak Bay–Gordon Head regarding the Species at Risk Act.

Amendment negatived on the following division: