Analysis Report
Whether to designate the Tent Mountain Mine Redevelopment Project in Alberta and British Columbia pursuant to the Impact Assessment Act

A change to fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act

Context: In Alberta, westslope cutthroat trout and bull trout are both listed as Threatened under the Species at Risk Act. Bull trout has critical habitat approximately 40 kilometres downstream of the Project. In B.C., westslope cutthroat trout downstream of the Project are listed as Special Concern. The Project does not directly intersect with any fish-bearing waters.

Proponent:

The mine area will not directly affect fish and fish habitat as there are no fish-bearing water bodies that overlap with the mine footprint. Waterbodies, such as Island Creek, that are near/adjacent to other mine components (access road, haul road, coal load-out) have not had potential adverse effects identified by the Proponent's analysis. As a result, the Proponent does not anticipate any direct effects to fish or fish habitat resulting from the Project.

The targeted coal-bearing formation, the Mist Mountain Formation, is enriched in selenium – a substance known to have adverse effects to fish. Other constituents of concern include total suspended solids (TSS) and other metals associated with runoff. The historical mine site is releasing waters to the environment where the potential of effects currently exists. The Proponent is of the view that with upgrades to the current water management as a result of the Project, it is expected that the Project would improve the water quality parameters at the current downstream compliance monitoring point and subsequently reduce potential effects to aquatic habitats from the current state. The Proponent's water quality modelling shows that the planned water management is anticipated to be sufficient to meet applicable water quality criteria in Alberta.

The multi-tiered water management plan and proposed mitigations to address potential effects of selenium on downstream water quality include:

• Saturated backfills – backfilling waste rock into mined out pits and allowing them to be covered with water – creates an anoxic environment that prevents the release of selenium from the overburden to the environment and promote selenium attenuation (assumed 95 per cent attenuation).
• Nutrient enhanced biochemical reactor to treat selenium impacted surface water (assumed 95 per cent attenuation).
• Natural wetlands in settling ponds from previous mining activities (Pond 3 and Lower Pond) to provide natural attenuation of selenium in surface water (assumed attenuation of 68 per cent)

Discharge of water to the environment will meet the requirements under the Alberta Environmental Protection and Enhancement Act and the Proponent is committed to meeting or exceeding the proposed Coal Mining Effluent Regulations under the Fisheries Act, including prior to coming into force.

For the B.C. portion of the Project, the proponent currently holds Water Release Permit 3986 (Corbin Pond) under the Environmental Management Act. Any changes to water discharge will require an amendment and the proponent has indicated that applications for discharge changes will be required for resumed operation in B.C. and engagement with provincial authorities in B.C. has commenced. The proponent will be required to meet the clauses of that permit and all discharges from Corbin Pond, including selenium levels, are accounted for in the current Elk Valley and Koocanusa Reservoir water management plans and monitoring systems, and therefore release of deleterious substances under subsection 36(3) of the Fisheries Act is not anticipated for the Project.

Federal Authorities:

Fisheries and Oceans Canada (DFO) has noted that the Project could result in the harmful alteration, disruption or destruction of fish habitat, including and impacts to aquatic species at risk and resultantly may require authorization under the Fisheries Act. At this time, the information provided is insufficient to determine whether a Fisheries Act authorization would be required, or if proposed mitigation measures would be required. Provided the Proponent engages with DFO through the regulatory processes for review, this would be sufficient to address potential impacts to fish and fish habitat. DFO recommended that the Proponent submits Request for Review forms to review the Project under the Fisheries Act and the Species at Risk Act.

Environment and Climate Change Canada (ECCC) has noted that the construction, operation, and decommissioning of mines can result in the emission of contaminants such as sulfur oxides (SO_x), nitrogen oxides (NO₂), volatile organic compounds (VOCs), and fine particulate matter (PM_2.5). These air contaminant emissions can result in contamination of nearby land and waterbodies and affect fish and fish habitat. SO_x and NO_x can also lead to acidification and potential exceedance of ecosystems' critical loads.

ECCC submits that there is insufficient information available to support the Proponent's conclusion that there will be no adverse effects to fish or fish habitat and that it is reasonable to expect that the Project could have levels of selenium and other harmful substances in its effluent that would likely have adverse effects on fish and fish habitat. The scope and extent of these potential adverse effects on fish and fish habitat are difficult to determine without more information and analysis. The definition of fish under the Fisheries Act includes all stages of the life cycle of fish (e.g. from egg to adult) and includes a range of other aquatic organisms, and is not limited to fish that are aquatic species at risk. ECCC's review states that Montem has estimated the attenuation efficacy of selenium in their load balance models for proposed mitigation measures (saturated rock fill in ex-pit waste rock deposits; passive wetland treatment; biochemical reactors). However, there is no indication as to what the anticipated concentrations of selenium and other contaminants will be, resultant from each operation or treatment process, and at the point of final discharge. They add that there is also uncertainty as to the effectiveness of the mitigation measures proposed, as saturated rock fill or backfill zones are nascent technologies. Additionally, if Montem intends to use existing wetlands for their passive water treatment, it should be noted that such water bodies may themselves be fish bearing waters, as defined under the Fisheries Act.

Requester and Indigenous Concerns:

Concerns include effects to fish and fish habitat from changes to water quality resulting from runoff water from mine operations and corresponding increases in constituents such as selenium and metals in the Crowsnest and Oldman river basins, lentic habitats such as Crowsnest Lake downstream, and B.C. receiving waters such as Michel Creek. In the experience of Blood Tribe/Kainai and Siksika Nation, modern water management and mitigation of these constituents has not been effective in the region and have had effects downstream of projects such as to benthic invertebrate communities. Indigenous responders have also noted concern about the potential physical destruction or degradation of fish habitat in the event of stream bed and bank alteration from trenching and land clearing.

Indigenous concerns note that other proposed mines in the area have been determined to have detrimental effects on high-value habitat of the westslope cutthroat trout and other fish species of importance. Examples provided include projects in the B.C. Elk Valley watershed where declines in westslope cutthroat trout populations have been observed. While water management plans are required, uncertainty remains around the ability for modern management approaches to address concerns surrounding the release of selenium and the resulting effects to fish.

Requester concerns were raised with respect to the Castle River watershed as one of the most significant watersheds for both westslope cutthroat and bull trout species in Alberta. Concerns highlight mining, as identified in the recovery strategies, as an activity likely to destroy critical habitat. Concerns with respect to selenium in this watershed on fish have been highlighted to include debilitating deformities. While the Project is not anticipated to directly affect critical habitat for westslope cutthroat trout, the Alberta Wildlife Association indicates that the current recovery strategy for westslope cutthroat trout notes that critical habitat is only partially identified at this time and further habitat assessment is required. Concerns have also been raised with respect to whether selenium released by the Project will effect critical habitat downstream of the Project.

The Alberta Wilderness Association notes Project would prevent the stocking of a 10 kilometre section of Crowsnest Creek upstream of a waterfall that is considered fishless and has been proposed as a potential stocking area of a "pure strain" of westslope cutthroat trout. This creates concerns on the ability for species recovery in the area if the Project proceeds, as this potential westslope cutthroat trout habitat will not be available for recovery of the species.

There are concerns around the cumulative effects of aquatic species at risk in the region. The Project was excluded from the Grassy Mountain Mine cumulative effects assessment and therefore the cumulative effects on westslope cutthroat trout from coal mining in the area is of concern.

Concerns were raised that effects to the regional ecosystem from the Project may have a negative effect on numerous game fish and limit the ability for Indigenous and recreational land users to enjoy the area.

Proposed Terms of Reference for the Alberta EIA:

It is a requirement to describe and map the fish, fish habitat (e.g., aquatic and benthic invertebrates) of the lentic and lotic ecosystems, including intermittent and ephemeral water bodies. The Proponent must describe the species composition, distribution, relative abundance, movements and general life history parameters including their use and potential use of habitats. Provide the methods used and rationale for the baseline data collection.

As part of the baseline information, it is required to describe any aquatic species:

• listed as "at Risk, May be at Risk and Sensitive" in the General Status of Alberta Wild Species (Alberta Environment and Parks);
• identified by the Alberta Wildlife Act as ‘Endangered', ‘Threatened', or ‘Species of Special Concern';
• listed in Schedule 1 of the federal Species at Risk Act;
• listed as "at risk" by COSEWIC; and
• traditionally used species

The parameters above include westslope cutthroat trout and bull trout.

It is also required to describe and map aquatic habitat including critical or sensitive areas. The mapping is to include habitat disturbances that are related to proposed Project and existing and approved projects overlain on surface hydrology.

Input from B.C. Environmental Assessment Office:

The Proponent currently has a permit for the previously-authorized water discharge point at Corbin sediment pond. Any changes to mining activities would require a review of the permit.

Input from the United States Environmental Protection Agency Region 8 (U.S. EPA):

The U.S. EPA raises concern over potential effects to aquatic resources in Canada and the application of a new technology whose long-term effectiveness has a high degree of uncertainty.

According to the Technical Assessment Report for the Tent Mountain Mine Re-start Project, British Columbia, Canada (SRK 2020), Montem AB is proposing the use of saturated rockfill technology (SRF), semi-passive biochemical reactors, and wetlands to treat contact water that is expected to be contaminated with selenium and nitrates resulting from mining and waste rock disposal operations. EPA has been involved in reviewing SRF technology, in coordination with B.C. While SRF has shown short-term effectiveness at treating selenium, its effectiveness and permanence is unproven over the long time periods (decades of operation and post-closure) that would be required. While the EPA hopes that this technology will be effective, it has not been demonstrated that it will achieve selenium water quality objectives and standards over long time periods.

Impacts to fish and fish habitat and aquatic species at risk are prohibited unless authorized under the Fisheries Act and Species at Risk Act.

A Species at Risk Act authorization is required if there are impacts to an aquatic species at risk, any part of their critical habitat or the residences of their individuals where affecting the species is incidental to the carrying out of the activity.

The Recovery Strategy for the Bull Trout (Salvelinus confluentus), Saskatchewan-Nelson Rivers populations, in Canada (2020) under the Species at Risk Act determine critical habitat for bull trout.

The Recovery Strategy and Action Plan for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population (also known as Saskatchewan-Nelson River Populations) in Canada (2019) under the Species at Risk Act determine critical habitat for westslope cutthroat trout.

Fisheries and Oceans Canada advised that Fisheries Act paragraph 35(2)(b) authorization would be required if the Project is likely to cause the harmful alteration, disruption, or destruction of fish habitat.

Fisheries and Oceans Canada advised that Fisheries Act paragraph 34.4(2)(b) authorization would be required if the Project is likely to result in the death of fish.

Deposition of deleterious substances into waters frequented by fish, unless authorized by regulations or other federal legislation, is prohibited under the Fisheries Act. ECCC is developing a proposed regulatory approach for coal mines under the Fisheries Act, the proposed Coal Mining Effluent Regulations.

Alberta Energy Regulator environmental assessment and regulatory process apply (Alberta Environmental Protection and Enhancement Act, Water Act, Coal Conservation Act, and the Public Lands Act).

Westslope cutthroat trout and bull trout are listed as endangered species under the Alberta Wildlife Act

Authorization under Alberta's Water Act is required for temporary disturbances to wetlands including marshes, for the temporary diversion of water, and access and use of water.

The approved water management plan for the South Saskatchewan River Basin enabled under Alberta's Water Act includes considerations of water quality in the enhancement of aquatic life.

Cumulative effects to water quality and quantity are managed through the South Saskatchewan Regional Plan, including the South Saskatchewan Surface Water Quality Management Framework enabled under the Alberta Land Stewardship Act.-

B.C. Ministry of Environment and Climate Change Strategy may require reviews under the Environmental Management Act and Mines and Minerals Act for changes to existing mine permits. The Environmental Management Act regulates industrial and municipal waste discharge, pollution, hazardous waste and contaminated site remediation. EMA provides the authority for introducing wastes into the environment, while protecting public health and the environment.

A change to aquatic species, as defined in subsection 2(1) of the Species at Risk Act

See fish and fish habitat section. No adverse effects to marine plants are anticipated, as there is no interaction between the Project and the marine environment.

See fish and fish habitat section.

A change to migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994

Proponent:

Significant pre-existing disturbance and clearing on the Project site as well as use of pre-existing infrastructure such as roads will reduce the risk to migratory birds. The Proponent does not expect any adverse project effects on migratory birds through the application of standard mitigation measures to ensure compliance with the Migratory Birds Convention Act, 1994.

Mitigation measures proposed include planning vegetation clearing outside of the breeding bird period, conducting pre-disturbance nest searches, and implementing the progressive conservation and reclamation proposal that promotes the development of habitats required for migratory birds. Workers will be bussed from a staging area closer to the town of Coleman to the mine site. The reduction in traffic will reduce vehicle collisions with birds.

Federal Authorities:

Environment and Climate Change Canada has noted that the exploration and construction of mines and associated infrastructure usually contributes to large-scale land clearing activities, which leads to the destruction, disturbance and fragmentation of habitat, habitat avoidance, sensory disturbance, and the inadvertent destruction of individuals, nest and eggs of migratory birds and species at risk.

There is a higher risk for severe effects for migratory birds that are also species at risk or where there is already a high degree of cumulative effects, but restoration of the existing legacy mine footprint may reduce cumulative project adverse environmental effects. In addition, there is potential for harmful substances to enter the receiving environment and negatively harm migratory birds and their habitat, and birds that land on and/or frequent waste waters have the potential to come into contact with toxic substances, resulting in on and off site mortality. Migratory birds at risk could be impacted by such sensory disturbances as lights, vibrations, and presence of workers; for example, attraction to lights may cause birds to collide with lit structures or cause disorientation while circling a light source, leading to exhaustion and death. The amount, duration, frequency, and timing of noise are important to understand potential effects from this type of disturbance.

Requester and Indigenous Concerns

Concerns were raised about the potential effects to migratory birds, including concerns about leaching of selenium in the receiving environment and the negative effect this can have on the health of migratory birds. Adverse effects to migratory birds may impede the ability of Indigenous peoples to carry out their harvesting rights.

Compliance with the Migratory Birds Convention Act, 1994 and Species at Risk Act are required.

A change to the environment that would occur on federal lands

Proponent:

No adverse environmental effects on federal lands are anticipated, as there are no federal lands in the immediate vicinity of the Project. The nearest Indian Act reserve lands (Piikani Nation) are approximately 50 kilometres east of the Project. Dominion Coal Blocks are federal land approximately 10 kilometres west of the Project.

A determination under section 82 of the IAA would be required for projects on federal lands but is not applicable to the Project.

A change to the environment that would occur in a province other than the one in which the project is being carried out or outside Canada

The Proponent:

Greenhouse gases (GHGs): With respect to GHGs, the volume of emissions likely from the Project, given its size and proximity to market, would be low in magnitude accounting for an estimated 84,114 tonnes of carbon dioxide equivalent units (CO2e), or 0.03 per cent and 0.012 per cent of the annual provincial and national emissions inventories, respectively. The Project emission is estimated to be only 23 per cent of the neighboring Grassy Mountain Mine.

GHGs will be mitigated by ensuring all diesel equipment and vehicles will have low engine emissions meeting United States EPA Tier 4 emissions standards. The coal handling and processing plant will not utilize a dryer resulting in less energy consumption. Previous mine operations trucked coal to a processing plant in the town of Coleman, Alberta. The Proponent indicated that moving the coal handling and processing plant adjacent to the mining area will decrease overall emissions from past operations.

Air quality: The proponent recognizes that high winds experienced in the area, and proposes best management practices form international jurisdictions and compliance with Canadian regulations to mitigate the potential influence of air quality reduction or dust events at the loadout and the mine site. Air quality modelling is underway and includes both B.C. and AB limits and parameters to ensure the most stringent limits are achieved. Dust mitigation plans are in development and will be addressed in the Alberta environmental impact assessment. At the rail siding, each rail car, once full, will be dosed with a dilute dustbinder chemical to seal and mitigate dust emissions during the journey from mine to port.

Transboundary waters: The Proponent indicates water used and captured on site will not be transferred across provincial boundaries and that water quantity would not be adversely affected.

Transboundary Species at risk: The proponent notes the existence of a significant wildlife corridor to the north of the Project area and indicates that there is already significant, historical effects due to the current linear disturbance and other activities. The proponent indicates that additional protective measures will be in place to avoid significant additional impacts to local and regional wildlife over the current impact of the existing infrastructure however details or specifics with respect to potential effects to species at risk are not described. The proponent also indicates that transboundary effects to wildlife will be assessed through the Alberta environmental impact assessment and will be addressed through project design or the application of standard mitigation measures. Some species at risk have been identified within the Project area.

Federal Authorities:

Greenhouse gases (GHGs): Environment and Climate Change Canada confirms that the Project has the potential to generate GHGs and because the Project is expected to operate for 14 years, there is the potential for the Project to be affected by climate change through climate related accidents and malfunctions. If the project was to undergo a federal impact assessment, the Strategic Assessment of Climate Change must be taken into account.

Air quality: Environment and Climate Change Canada has indicated that mining can result in adverse effects on air quality, such as the emission of SO_x, NO_x, VOCs and PM_2.5. These air contaminants can result in local or regional degradation of ambient air quality. The deposition of these contaminants (such as metals or polycyclic aromatic compound emissions) may result in elevated concentrations of these contaminants in water, soil, flora and fauna. In addition, the combustion of fossil fuels to power rail engines, on-road vehicles and off-road machines will result in the emissions that can negatively impact ambient air quality.

Transboundary waters: Environment and Climate Change Canada has noted that the International River Improvement Act (IRIA) may be triggered if the Project were to significantly impact the B.C. watershed on the west side of the hydrological divide. In addition, any significant alteration to the hydrological divide itself may trigger the IRIA as that would permanently change the amount of water flowing into the United States.

Transboundary Species at risk: Environment and Climate Change Canada notes that the nature of effects to wildlife is based on a number of factors and that habitat that supports movement could be important for wildlife species. Mines may impact wildlife directly or indirectly including impacts to habitat, introduction of harmful substances, and sensory disturbances. Sensory disturbances include project noise, lights, and vibrations from mining activities and may result in adjacent habitats being unsuitable for use by wildlife or cause avoidance of certain areas.

Requester and Indigenous Concerns:

Greenhouse gases (GHGs): Concerns included GHG emissions from mine operations such as fugitive methane, the subsequent effects of climate change, and that the GHG emissions from the Project would hinder Canada's ability to meet its Paris Agreement commitments and 2050 net-zero ambitions.

Transboundary waters: Concerns included transboundary effects to water quality and quantity. The Alberta Wilderness Association indicates that the province of Saskatchewan is highly reliant on water flowing from Alberta including the Crowsnest and Oldman Rivers in which the Project is at the headwaters.

Water quality concerns included elevated selenium levels downstream into Saskatchewan and impacts to the Kootenai watershed that flows across Montana and Idaho. The currently approved discharge point in B.C. is Corbin Pond upstream of Michel Creek which eventually reaches the transboundary Koocanusa reservoir. Concerns have been identified surrounding increasing selenium from coal projects in the area into the Koocanusa reservoir.

Transboundary Species at risk: Concerns were raised with respect to wildlife that rely on travel corridors such as grizzly bear (Special Concern) that rely on healthy, intact landscapes in B.C., Alberta, and Montana, and the ability of the provinces to consider effects to the movement across provincial border.

Input from B.C. Environmental Assessment Office:

The Proponent currently holds a water release permit under the Environmental Management Act for the use of Corbin Pond (sediment pond). The Proponent has informed B.C. that the Project would not impact water quality or quantity in B.C. Any changes to the mining site would require a review under this permit to confirm if changes to the permit are required.

Input from the U.S. EPA:

The U.S. EPA understands that drainages and discharges from the Project would primarily be to the Crowsnest River via Crowsnest Creek in Alberta. However, due to the location of the Project in Alberta, at the border with British Columbia (B.C.), the EPA understands that some discharges would also be to B.C. in the Michel Creek basin which flows into the Elk River. The Elk River then discharges to transboundary Koocanusa Reservior approximately 100 km downstream. Due to the potential for the project to have direct and cumulative impacts to U.S. waters that are already being impacted by existing and historical coal mining in the Elk Valley, the U.S. EPA believes that a federal impact assessment is needed.

The project has the potential to cause adverse effects that fall within federal jurisdiction, including impacts to the environment both inside and outside of Canada. The proposed Project is located approximately 150 km upstream of Lake Koocanusa. Direct and cumulative impacts from coal mining in the Elk Valley have resulted in impacts to Lake Koocanusa and the Kootenai River water quality, fish, and fish habitat in the United States. While only a portion of the total project wastewaters will be discharged to the Elk River, the extent of Project information currently available to EPA has not clarified the potential quantity, quality, or nature of water resources impacts to the Elk River watershed and therefore warrants further exploration. EPA is concerned that new projects will increase pollutant loading to Lake Koocanusa and the Kootenai River. ECCC and IAAC are aware of these concerns through our ongoing conversations and input from EPA during our reviews of other proposed coal mines in the Elk Valley. EPA is also concerned about impacts to aquatic resources in B.C.that are under federal jurisdiction and could extend to downstream Lake Koocanusa resources.

The International River Improvement Act may be triggered if there are impacts to the B.C. watershed on the west side of the hydrological divide, or if the hydrological divide itself undergoes any alteration.

The Project would be subject to federal GHG reporting, pursuant to the Canadian Environmental Protection Act, 1999, if it emits 10 kilotonnes or more of GHG emissions, in carbon dioxide equivalent units per year.

With respect to the Indigenous peoples of Canada, an impact - occurring in Canada and resulting from any change to the environment - on physical and cultural heritage

Proponent:

The Proponent is completing field studies and developing impact reports and management plans to mitigate impacts to Indigenous groups and community concerns. An Indigenous consultation program is ongoing and the Proponent has informed the Agency that they are consulting beyond the requirements established by the Alberta Aboriginal Consultation Office.

Federal Authorities

Indigenous Services Canada noted that the Project's proximity to the headwaters of the Saskatchewan, Missouri, and Columbia watersheds could mean that fish harvesting may be impacted in case of an accidental release of deleterious substance and, consequently, food security may be impacted. As such, steps to ensure the mitigation of such possible adverse effects, such as ensuring impacted Indigenous groups are engaged and that information is shared, is important.

Requester and Indigenous Concerns:

Indigenous groups have expressed that areas around Tent Mountain have been historically used for travel, trade harvesting and ceremonial purposes and continue to be an important area for cultural practices. The Blood Tribe/Kainai submit that much of their traditional territory has been taken up by activities that are inconsistent with the practice of their culture. A variety of plants for food and medicinal purposes are harvested in the area by Indigenous Nation members. Continued access to locations in the area where cultural practices, traditions and customs can persist and where knowledge can be passed onto the younger generations is central to the maintenance of unique Indigenous cultures.

Indigenous concerns were raised about the potential adverse impacts to Bighorn sheep and other species of cultural importance.

Proposed Terms of Reference for the Alberta EIA:

Baseline historical resources studies and impact assessment on physical and cultural heritage including cabin sites, spiritual sites, cultural sites, graves, traditional trails and resource activity patterns are required. EIA also considers access to traditional lands and Indigenous views on reclamation.

The Alberta Energy Regulator has a responsibility to consider the potential adverse impacts of energy resource applications on the existing rights of Indigenous peoples as recognized and affirmed under Part II of the Constitution Act, 1982 within its statutory authority under the Responsible Energy Development Act. Adequacy of consultation is determined by the Alberta Aboriginal Consultation Office and the Alberta Energy Regulator must receive advice from the Aboriginal Consultation Office with respect to the adequacy of consultation and potential adverse impacts on existing rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982 or traditional uses as defined in the Consultation Policy prior to making a decision in respect of energy applications.

The Project will be required to comply with the Alberta Historical Resources Act. According to Alberta guidance Listing of Historic Resources: Instructions for Use (Minister of Culture, Multiculturalism and Status of Women, 2020), projects requiring an EIA always require a Historical Resources Application.

With respect to the Indigenous peoples of Canada, an impact - occurring in Canada and resulting from any change to the environment - on current use of lands and resources for traditional purposes

The Proponent:

The Proponent is completing field studies and developing impact reports and management plans to mitigate impacts to Indigenous groups and community concerns.

The Proponent has not provided any details with respect to potential changes to the environment that may impact the current use of lands and resources for traditional purposes. The site has been subject to extensive past disturbance from open pit mining. The Proponent recognizes that previous mining activities have impacted the ability for Indigenous groups to access land for traditional purposes. The Proponent has committed to continually engaging Indigenous groups in reclamation planning to mitigate effects to the use of land for traditional purposes.The Proponent describes opportunities to complete outstanding site closure and reclamation as well as improving upon previously reclaimed land that has been certified by the province of Alberta. The Proponent is of the stance that the Project provides opportunity to leave the historical mining site in a better ecological state that will benefit Indigenous communities.

Federal Authorities:

Women and Gender Equality noted that resource extraction projects can have different positive and negative impacts on different groups of people from a range of groups and communities and further information would be required to determine whether mitigation is required.

Requester and Indigenous Concerns:

Traditional livelihood depends on the persistence of traditional food, water and land and continued and cumulative development in the Eastern Slopes of Alberta has adversely impacted this. Indigenous Nations have also noted that the Eastern slopes have long been critical to the practice of rights including harvesting, hunting, trade and spiritual practices. Concerns were raised that the Project could impact the ability for Indigenous groups to undertake traditional practices in the area, as well as sensory disturbance impacts to preferred places, species and resources. The increasing development in the area limits opportunities to use the land for traditional and cultural purposes. This includes potential for increased access by non-Indigenous users such as hunters, which may negatively impact traditional users in the area.

Blood Tribe/Kainai expressed concern that the Project could result in potential impacts to the wintering range of the Bighorn sheep, which is a species of cultural importance. Samson Cree Nation noted that the creation of unwanted access to the area could contribute to increased hunting pressure by recreational land users, thereby impacting the ability for Samson members to practice Treaty hunting rights. In addition, Project impacts could potentially reduce the quality and health of vegetation, soils and medicinal plants. The ability to undertake traditional practices relies on sufficient quantity and quality of resources including water, fish, plants, spiritual sites and cultural landscapes.

Proposed Terms of Reference for the Alberta EIA:

As part of baseline data gathering, the Proponent is required to describe the current and potential use of the fish resources by Indigenous or recreational fisheries. The Proponent is required to "determine the impacts of the Project on traditional, medicinal and cultural purposes and identify possible mitigation strategies."

The proposed Terms of Reference for the Alberta environmental impact assessment includes considering Indigenous views on land reclamation.

The Alberta Energy Regulator has a responsibility to consider the potential adverse impacts of energy resource applications on the existing rights of Indigenous peoples as recognized and affirmed under Part II of the Constitution Act, 1982 within its statutory authority under the Responsible Energy Development Act. Adequacy of consultation is determined by the Alberta Aboriginal Consultation Office and the Alberta Energy Regulator must receive advice from the Aboriginal Consultation Office with respect to the adequacy of consultation and potential adverse impacts on existing rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982 or traditional uses as defined in the Consultation Policy prior to making a decision in respect of energy applications.

Applications under the Alberta Environmental Protection and Enhancement Act, Water Act, and Public Lands Act require confirmation of adequacy of consultation from the Alberta Aboriginal Consultation Office prior to their approval or issuance.

Authorization under the Fisheries Act may be required if the project is likely to cause the harmful alteration, disruption, or destruction to fish habitat or is likely to result in the death of fish.

Deposit of deleterious substances into waters frequented by fish, unless authorized by regulations or other federal legislation, is prohibited under the Fisheries Act.

With respect to the Indigenous peoples of Canada, an impact - occurring in Canada and resulting from any change to the environment - on any structure, site, or thing that is of historical, archaeological, paleontological or architectural significance

Proponent:

The Proponent is completing field studies and developing impact reports and management plans to mitigate impacts to Indigenous groups and address community concerns. Because the resumption of activities will occur entirely within the previously approved mine site and the existing level of disturbance on site from previous mining activities, the Proponent does not expect new adverse effects relating to things of historical, archaeological, paleontological or architectural significance.

Archeological studies are underway as part of the biophysical assessments being conducted by the Proponent. A suite of biophysical assessments began in the summer of 2018. No impacts are anticipated because of the extent of previous disturbances in the project area and proposed project activities.

Requester and Indigenous Concerns:

Concerns describe how the Project may adversely effect sacred sites and may destroy sites of archaeological, historical, cultural, or spiritual significance. Areas at risk mentioned include Napi's Gambling Place, Oldman River, and Thunder Mountain.

Several Indigenous Nations indicated that they have not had the opportunity to conduct a traditional land use study including the footprint, so Project-specific impacts are unknown at this time.

Alberta Historical Resource Mapping^{Footnote 11}:

The Project is located on land that is mapped to have historical resource values of 4 (contains historic resource that may require avoidance) and 5 (high potential to contain a historic resource). Projects requiring a provincial EIA require the submission of a Historic Resources Application and may result in a Historic Resource Impact Assessment.

A submission of an Historic Resources Application under the Alberta Historical Resources Act is required for the Project.

The Agency understands that authorizations or permits are required under the B.C. Heritage Conservation Act (regulated by Forests, Lands, Natural Resource Operations & Rural Development ) which would require the Proponent to identify protected archeological sites that will be directly or indirectly disturbed and to follow protocols to protect any discovered archeological artifact or human remains.

Any change occurring in Canada to the health, social or economic conditions of the Indigenous peoples of Canada

Proponent:

The Proponent is completing field studies and developing impact reports and management plans to mitigate impacts to Indigenous groups and community concerns. The Proponent has indicated that through their ongoing engagement and consultation, certain Indigenous groups have shown interest in potential employment and business opportunities resulting from the Project. Local and Indigenous contractors will be used to the extent feasible.

There is not expected to be any significant changes to downstream water quality used for drinking water due to the small size of the Project and through mine planning, the ability for the Proponent to immediately control all mine water discharges. The Proponent is confident that water released under the water management strategies planned will be within the applicable water quality standards as regulated under the Alberta Environmental Protection and Enhancement Act.

Federal Authorities:

Health Canada notes the potential for adverse direct effects on human health of Indigenous peoples given the proximity of communities to the Project and would require further information to understand the extent of these potential effects from project-related changes to air quality, water quality, noise and country foods on Indigenous health. Furthermore, due to the proximity of several Indigenous communities within 100 kilometres of the Project and the amount of current and past coal projects in the area, Health Canada indicated that there may be cumulative health effects as relates to Indigenous peoples.Health Canada indicated that, in partnership with the provinces and territories, it developed the Guidelines for Canadian Drinking Water Quality and the Guidelines for Canadian Recreational Water Quality and these guidelines form the basis of provincial drinking and recreational water quality requirements.

Environment and Climate Change Canada also notes that the construction, operation and decommissioning of mines can result in adverse effects on water quality through acidification and the leaching of metals into the receiving aquatic environment. Surface water quantities can be changed by alteration of surface flows and the production of process-affected water has the potential for contaminants to enter groundwater through seepage from the tailings/rock disposal areas.

Women and Gender Equality Canada indicated that coal extraction projects have different positive and negative impacts upon women, men and gender diverse persons from a range of groups (e.g. disability, income) and communities (e.g. different nations) that would be identified, monitored and mitigated across a variety of ways including:

• economic and employment opportunities;
• decision making, access and control of resources;
• compensation or benefits and expanded investment in the local community;
• access to services and programs that account for the perspective, knowledge and experiences of individuals and communities;
• reinforce existing inequalities;
• health and safety issues and risks, such as gender-based violence; and
• where men gain employment and withdraw their labour from traditional subsistence activities such as hunting, fishing, gathering or trapping, this can create and exacerbate existing gender inequalities.

Environment and Climate Change Canada has indicated that mining can result in adverse effects on air quality, such as the emission of SO_x, NO_x, VOCs and PM_2.5. These air contaminants can result in local or regional degradation of ambient air quality, with potential impacts on human health. The deposition of these contaminants (such as metals or polycyclic aromatic compound emissions) may result in elevated concentrations of these contaminants in water, soil, flora and fauna. In addition, the combustion of fossil fuels to power rail engines, on-road vehicles and off-road machines will result in the emissions that can negatively impact ambient air quality and human health.

Requester and Indigenous Concerns:

Concerns were raised regarding risk of contamination, degradation and potential loss of access to traditional food systems leading to a loss of food security. Mining operations will open atmospheric, surface water, vegetation and wildlife pathways for contamination by dangerous chemicals in unanticipated ways.

Indigenous groups raised concerns about the potential contamination of drinking water sources from the Project, such as through the leaching of selenium and other metals from runoff water. In addition, selenium contamination could result in negative impacts to the greater food-web and human health through biomagnification. Continued resource development without adequate cleanup has caused impacts to emotional and mental health. Loss of access to traditional foods (through contamination, at-risk populations, extirpations and extinctions) translates into a loss of food security for local Indigenous communities. Indigenous concerns also include a limited opportunity for Nation-owned businesses.

Proposed Terms of Reference for the Alberta EIA:

An impact assessment of air quality on health and documentation of health concerns identified by Indigenous communities or groups, specifically on their traditional lifestyle is required. Mitigations are required for each associated impact. The EIA requires a discussion on opportunities to work with First Nation and Métis communities regarding employment, training needs and other economic development opportunities arising from the Project.

Deposit of deleterious substances into waters frequented by fish, unless authorized by regulations or other federal legislation, is prohibited under the Fisheries Act.

Adverse direct or incidental effects

The Proponent:

The Site Safety Management Plan Rules for the rail loadout facility will require four handbrakes temporarily on each of the 30-car cuts for securement to be in compliance with Transport Canada regulations.

The Proponent does not anticipate that any federal authorizations will be required.

Federal Authorities:

Authorizations pursuant to the Fisheries Act and the Species at Risk Act issued by Fisheries and Oceans Canada, may be required and the authorization process may include Indigenous consultation.

Based on information provided, Natural Resources Canada is not likely to exercise a power or duty or function related to the project to enable it to proceed.

Environment and Climate Change Canada (ECCC) does not expect to exercise a power or perform a duty or function related to the Project. However, depending on the scope of the Project, ECCC may need to issue permits related to the Migratory Birds Convention Act, 1994 and the Species at Risk Act.

The following federal Acts apply. No authorizations are known to be required at this time.

Canada Transportation Act

Fisheries Act

Species at Risk Act

Migratory Birds Convention Act, 1994

Effects on federally listed Species At Risk under the Species at Risk Act

Proponent:

The Proponent must be compliant with the Species at Risk Act and does not anticipate the need for any associated federal authorization. Surveys had identified the presence of two species at risk listed as endangered on Schedule 1 of the Species at Risk Act (whitebark pine and little brown myotis). Whitebark pine is also listed as endangered and protected under the Alberta Wildlife Act and the Proponent will comply with the Alberta Species Recovery Plan. The Proponent is in the process of developing mitigation plans for wildlife.

Because of the level of existing disturbance on site, the Proponent does not anticipate significant effects to wildlife and wildlife habitat; however, does recognize that temporary effects from sensory disturbances (noise, dust, traffic, etc.) will result from the Project and will be regulated under the Alberta Environmental Protection and Enhancement Act. Improved site closure and reclamation of the existing mining disturbances have the potential to improve overall wildlife habitat at Tent Mountain.

The Proponent acknowledges the existence of a significant wildlife corridor to the north of the Project area and notes there is already significant, historical effects due to the current linear disturbance and other activities. The Proponent is committed to putting in place additional protective measures to avoid significant additional impacts to local and regional wildlife over the current impact of the existing infrastructure.

Federal Authorities:

Environment and Climate Change Canada noted that mining can lead to the disturbance and destruction of species at risk and their habitat, exposure to harmful substances through deposition, spills, or emissions, and the potential for other harmful substances to enter or be spilled into the receiving environment has the potential to negatively impact species at risk.

Requester and Indigenous Concerns:

Whitebark pine is an endangered species listed on Schedule 1 of the Species at Risk Act. The project is directly adjacent to regeneration and recovery critical habitat and is entirely within the two kilometre buffer established as the seed dispersal regeneration and recovery critical habitat and therefore a direct impact to the recovery of the species.

Wildlife corridors provide connections that grizzly bear rely on to breed between Montana, Alberta, and B.C. populations. Concerns of adverse effects to grizzly bear include the Projects location within an important wildlife corridor and that this Michel-Alexander corridor could have impacts to various other species. Coal development and exploration in the area are negatively affecting these corridors and accompanying infrastructure, activity and noise will reduce the utility of this linkage zone for grizzly bears. Potential future development activities by the Proponent in the region would further fragment this habitat and corridor.

Ecojustice has raised concerns about limber pine and whitebark pine, both listed as Endangered in Alberta under the Wildlife Act and that the Wildlife Act does not provide sufficient, broad legal protection for either individuals or habitat.

Species at risk are protected under the Species at Risk Act.

Alberta Whitebark Pine Recovery Strategy (2013-2018) considers critical habitat to be the same as identified in the federal recovery strategy under the Species at Risk Act. Whitebark pine is an endangered species protected by the Alberta Wildlife Act.

Grizzly bear is a threatened species protected by the Alberta Wildlife Act and has a recovery plan that is recent as of July 2020.

Canadian Transportation Agency approval under section 98 of the Canada Transportation Act

Pursuant to section 98 of the Canada Transportation Act, a company shall not construct a railway line without the approval of the Canadian Transportation Agency (CTA). The Proponent has indicated that the railway spur is part of CN's network and is likely to require approval from the CTA.

Fisheries Act Authorization

Authorization under paragraph 35(2)(b) of the Fisheries Act is required when any activity that is not fishing results in the death of fish. Authorization under paragraph 34.4(2)(b) of the Fisheries Act is required when any activity that is not fishing results in the harmful alteration, disruption, or destruction to fish habitat (HADD). Prior to issuing such authorizations, consultations with potentially impacted Indigenous groups would be undertaken and potential accommodation for adverse impacts could be considered as appropriate.

The Fisheries Act 36(3) prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by regulations or other federal legislation.

Species at Risk Act Authorization

Authorization may be required if there are impacts to a species at risk, any part of their critical habitat or the residences of their individuals in a manner which is prohibited under sections 32, 33 and subsection 58(1) of the Species at Risk Act. Prior to authorization, the Competent Minister under this Act must be satisfied that the activities will not jeopardize survival or recovery of the species at risk.

For non-aquatic species listed in Schedule 1 of the Species at Risk Act as Extirpated, Endangered or Threatened, a permit may be required from Environment and Climate Change Canada (e.g. under section 73 of the Species at Risk Act) for activities that affect a listed terrestrial wildlife species, any part of its critical habitat, or the residences of its individuals, where those prohibitions are in place.

Such permits may only be issued if: all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted; all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and if the activity will not jeopardize the survival or recovery of the species.

Migratory Birds Convention Act, 1994

The Migratory Birds Convention Act, 1994 prohibits killing, harming, or collecting adults, young and eggs of migratory birds and screens and provides regulatory responses for effects to migratory birds. A permit is required for all activities affecting migratory birds, with some exceptions detailed in the Migratory Birds Regulations.

Canadian Environmental Protection Act, 1999

May require greenhouse gas emissions reporting, if ten kilotonnes or more of GHGs are emitted in carbon dioxide equivalent units per year. This would be in addition to reporting required from the Strategic Assessment of Climate Change, should an impact assessment be required.

Explosives Act

Factory and Magazine Licences under Section 7(1) of the Explosives Act may be required.

Coal Mining Effluent Regulations (pending)

The Coal Mining Effluent Regulations (CMER; proposed under the Fisheries Act) are currently being developed by Environment and Climate Change Canada and would provide effluent quality standards to deposit deleterious substances (selenium, nitrate and suspended solids). The target to pre-publish proposed regulations in Canada Gazette, Part I is in the summer of 2022. Final regulations are targeted 2023, at which time they would be law. This Project would be subject to the regulations.

Clean Fuel Standard Regulations (pending)

The proposed Clean Fuel Standard (CFS) Regulations will reduce the lifecycle carbon intensity of fossil fuels used in mobile and stationary equipment in the construction and operational phases of projects. In addition to the use of lower carbon fossil fuels that would be supplied, the CFS would incent some GHG reduction measures (such as the use of electric or zero emission technologies in lieu of fossil fuel equipment) that would enable the Proponent to generate credits for trade. The regulations for the liquid fossil fuel class are being developed first, with draft regulations published in Canada Gazette, Part I, in December 2020 and Environment and Climate Change Canada will continue consultations with interested parties with final regulations to be published in late 2021, with the coming into force of the regulatory requirement in December 2022.

Environmental Protection and Enhancement Act (EPEA)

EPEA supports and promotes the protection, enhancement and wise use of the environment. The Alberta Energy Regulator reviews applications under EPEA to assess the potential environmental impacts of a proposed project.

The existing EPEA approval No. 47679-02-01 has been transferred to the Proponent. The current approval only allows for monitoring and closure operations and condition 3.1.1 prevents the creation of any new disturbance to the land surface of the mine, undertaking of any new construction or refurbishing an existing portion operational status until and amendment to the approval is obtained.

Pursuant to ss. 39(e)(i) & (iii) and 67(1), the Project constitutes either a new development or a change to an activity that is of a substantial nature pursuant under EPEA and a mandatory activity pursuant to Schedule 1(g) of the Environmental Assessment (Mandatory and Exempted Activities) Regulation. The Proponent is required, pursuant to section 44(1)(a) of EPEA, to prepare and submit an environmental impact assessment (EIA) report for this project. The EIA report is to be prepared in accordance with the provisions of Division 1 of Part 2 of EPEA.

Public Lands Act

The Public Lands Act regulates public land allocations, the sale or transfer of public land to other levels of government or private entities, and the uses (include recreational use, commercial use and industrial use) of public land.

The Proponent applied for a Mineral Surface Lease (MSL) under the Public Lands Act to the AER in April 2019 for resumed operations.

Coal Conservation Act

To regulate the exploration of coal, the site development for coal extraction, and the commercial operation of a coal extraction site including permits to develop a mine site or mine. Section 23(1)(a) requires Approval to construct and operate a new coal processing plant. Application to be submitted as a coal processing plant will require new authorization under the Act. The plant will be constructed and operated within the boundary of the existing Permit and not require any new land disturbances.

The Proponent current holds mine permit AB.C.85-16G. Section 11 - Pit Licence grants Approval(s) to develop, operate and reclaim the surface mine, associated rock disposal areas and Project infrastructure. Pits, rock disposal areas and other Project infrastructure will be constructed partially within the existing operational areas and incorporated into the Project expansion areas.

Water Act

Water Act approval for the construction and operation of water management structures. Existing and new water management facilities will be required.

Water Act Licence for the consumptive use of defined quantities of water for the fresh water make up requirements of the coal plant. The Proponent will be applying for a licence to divert and use water for the purpose of washing raw coal at the coal handling and processing plant. Montem will apply to use water stranded in Pit 4.

The approved Water Management Plan for the South Saskatchewan River Basin is enabled under the Water Act.

Land Stewardship Act

Enables the implementation of Land Use Frameworks such as the South Saskatchewan Regional Plan and Livingstone-Porcupine Hills Land Footprint Management Plan for the management of cumulative effects. These plans include other frameworks such as the South Saskatchewan Region surface water quality management framework: for the mainstem Bow, Milk, Oldman and South Saskatchewan Rivers (Alberta).

Historical Resources Act

Provides for the use, designation and protection of moveable and immoveable historic resources. Projects such as this one that require a provincial environmental impact assessment require and application under the Historical Resources Act. Clearance is required prior to any site preparation or construction work occurring.

In the case of incidental historical finds, all activities that may impact the resource are to cease while it is being evaluated.

Electrical Utilities Act

Authorizations for interconnection to electrical for the Project.

Applications will be submitted for electrical needs of the plant, office and shop facilities.

Municipal Government Act

Applications to the Municipal District of Crowsnest Pass will be required for construction authorizations.

Environmental Assessment Act

The Environmental Assessment Act regulates the assessment of major projects in British Columbia for potentially adverse environmental, economic, social, heritage and health effects that may occur during the life cycle of these projects.

Issuance of a certificate is required for reviewable projects to proceed. Section 3(2), Section 10(1) and Table 6 of the Reviewable Projects Regulation require an assessment under the EAA for mine expansion when: a) the existing project that is subject to the modification has a production capacity in excess of 250,000 tonnes per year of clean coal or raw coal or both; or b) the clearance of 600 hectares or more of land, unless the clearance has been authorized by the minister, or delegate, under the Resort Timber Administration Act.

Mines and Minerals Act

Permits are required for on-site activities, including management of water quality, waste and metal leaching and acid rock drainage, as well as geotechnical design and reclamation and closure planning.

Coal Act

The Coal Act authorizes the registration of coal titles.

Environmental Management Act

The Environmental Management Act regulates industrial and municipal waste discharge, pollution, hazardous waste and contaminated site remediation.

The Environmental Management Act provides the authority for introducing wastes into the environment, while protecting public health and the environment. Each mine in B.C. is required to apply for, obtain and comply with conditions in a Waste Discharge permit issued under the Act and includes requirements related to discharge quality and quantity, development and implementation of management plans, monitoring programs and reporting.

Land Act

The Land Act governs the disposition, administration and management of Crown land in the province.

Water Sustainability Act

Water Sustainability Act governs the licensing, diversion and use of water by maintaining water quantity, water quality and aquatic ecosystems in and for B.C.. Authorizations may be issued for long-term diversion and storage of specific quantities of water for one or more water use purposes, short-term use approvals authorize holders to use water for a period up to 24 months and change approvals and notifications authorizing work, in and about a stream, and can include conditions and require public and Indigenous consultation.

Wildlife Act

This Wildlife Act may require permits for Scientific Fish Collection Permits, and the removal of bird nests, amphibian species and beavers. Conservation measures include setting individual species population objectives as well as establishment of habitat protection measures, using a variety of legislative tools.

Forest and Range Practices Act

The Forest and Range Practices Act outlines how all forest and range practices and resource-based activities are to be conducted on Crown land in B.C., while ensuring protection of everything in and on them, such as plants, animals and ecosystems.

Forest Act

Governs the issuance of timber harvesting permits and forest service road use permits. Permission under the Forest Act is required for activities it governs on provincial Crown land.

Heritage Conservation Act

The Heritage Conservation Act requires an Archaeological Impact Assessment prior to clearing and ground disturbance. Permits may be required for disturbances or alteration of sites.

Public Health Act

The Public Health Act is the primary article of legislation that is used by the government to convey land to the public for community, industrial and business use. The Act allows the granting of land, and the issuance of Crown land tenure in the form of leases, licences, permits and rights of way.

International Joint Commission established under the Boundary Waters Treaty of 1909

The International Joint Commission (IJC) is a bi-national organization established by the governments of the U.S. and Canada under the Boundary Waters Treaty of 1909, which is implemented in Canada by the International Boundary Waters Treaty Act. The treaty provides general principles, rather than detailed prescriptions, for preventing and resolving disputes over waters shared between the two countries and for settling other transboundary issues. The specific application of these principles is decided on a case-by-case basis.

The IJC has two main responsibilities: approving projects that affect water levels and flows across the boundary, and investigating transboundary issues and recommending solutions. The IJC's recommendations and decisions take into account the needs of a wide range of water uses, including drinking water, commercial shipping, hydroelectric power generation, agriculture, ecosystem health, industry, fishing, recreational boating and shoreline property.

The IJC, if provided with a Reference from the governments, can be asked to engage with all interested and affected parties to evaluate the transboundary effects of mining activity within the Elk Valley region. References have historically been provided jointly by the Governments of Canada and the U.S.; however, the IJC could operate under a unilateral Reference from one of the two Governments.

International River Improvements Act

A license under the International River Improvements Act is required from Environment Climate Change Canada to construct, operate or maintain an international river improvement, such as a dam or water diversion.