Vol. 143, No. 14 — July 8, 2009

Registration

SOR/2009-202 June 23, 2009

NAVIGABLE WATERS PROTECTION ACT

Proclamation Exempting the Waters of Sandy Pond from the Operation of Section 22 of the Navigable Waters Protection Act

MICHAËLLE JEAN

[L.S.]

Canada

ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.

TO ALL TO WHOM these Presents shall come or whom the same may in any way concern,

Greeting:

JOHN H. SIMS

Deputy Attorney General

A PROCLAMATION

Whereas section 23 of the Navigable Waters Protection Act provides that when it is shown to the satisfaction of the Governor in Council that the public interest would not be injuriously affected thereby, the Governor in Council may, by proclamation, declare any rivers, streams or waters in respect of which section 22 of that Act applies, or any parts thereof, exempt in whole or in part from the operation of that section;

Whereas the Governor in Council is satisfied that the public interest would not be injuriously affected by exempting Sandy Pond, located in Newfoundland and Labrador, from the operation of section 22 of the Navigable Waters Protection Act;

And whereas, by Order in Council P.C. 2009-850 of May 28, 2009, the Governor in Council directed that a proclamation do issue declaring that Sandy Pond, located in Newfoundland and Labrador, is exempt from the operation of section 22 of the Navigable Waters Protection Act;

Now know you that We, by and with the advice of Our Privy Council for Canada, do by this Our Proclamation declare that Sandy Pond, located in Newfoundland and Labrador, is exempt from the operation of section 22 of the Navigable Waters Protection Act.

OF ALL WHICH Our Loving Subjects and all others whom these Presents may concern are hereby required to take notice and to govern themselves accordingly.

IN TESTIMONY WHEREOF, We have caused this Our Proclamation to be published and the Great Seal of Canada to be hereunto affixed. WITNESS: Our Right Trusty and Well-beloved Michaëlle Jean, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Chancellor and Commander of Our Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

AT OUR GOVERNMENT HOUSE, in Our City of Ottawa, this twenty-third day of June in the year of Our Lord two thousand and nine and in the fifty-eighth year of Our Reign.

By Command,
RICHARD DICERNI
Deputy Registrar General of Canada

GOD SAVE THE QUEEN

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Proclamtion.)

Issue and objectives

Sandy Pond is a small body of water located approximately 5 kilometres from the community of Long Harbour-Mount Arlington Heights. Sandy Pond is not part of any water supply and is at the top of a watershed.

Section 22 of the Navigable Waters Protection Act (NWPA) prohibits the dumping of material into a navigable waterway. An Order in Council under section 23 of the NWPA will permit the deposition of residue into Sandy Pond by exempting it from section 22 of the Act. A proclamation declaring that the waters of Sandy Pond are exempt from the operation of section 22 of the NWPA will enable the development of a residue storage facility for the proposed Vale Inco Hydromet facility at Long Harbour. The residue storage facility will be designed to accept approximately 381 000 tonnes per year of residue.

The objective of this initiative is to protect the environment and the public from residue that has the potential to acidify if not disposed under water. The Order in Council will result in the loss of the public right to navigate on Sandy Pond, but the waste by-product will remain stable.

Description and rationale

An Order in Council under section 23 of the NWPA will, by proclamation, declare that the waters of Sandy Pond are exempt from the operation of section 22 of the NWPA and permit the deposition of residue into Sandy Pond, Long Harbour, Newfoundland and Labrador.

The residue is a waste by-product that will be produced from the proposed nickel-processing facility to be constructed in Long Harbour, Newfoundland and Labrador. The residue deposition would interfere with the public’s right to navigate on Sandy Pond in its entirety. Sub-aqueous deposition of the residue into Sandy Pond would inhibit the acidification of the elemental sulphur contained in the residue and therefore limit the production of a hazardous substance. Dams will be constructed along the shoreline of Sandy Pond to ensure the residue remains under one metre of water.

Access to Sandy Pond for public navigation is presently difficult due to current geographical limitations. Research into the history of Sandy Pond conducted by Transport Canada determined that boating has been very limited due to Sandy Pond’s location and current restricted accessibility.

Although Transport Canada’s review of the Vale Inco Project focuses on the impact to navigation, it acknowledges the conclusions of the Government of Canada’s environmental assessment for the project (July 2008) which included a detailed assessment of alternatives for the disposal of solid waste from the hydrometallurgical facility. The assessment concluded that the use of Sandy Pond as a tailing impoundment area (TIA) is the best alternative on an environmental, technical and socio-economic basis. The environmental assessment also concluded that “with consideration to the mitigations that will be implemented during construction and operation, the project is not likely to cause significant adverse environmental effects.”

This project does not require any extra infusion of funds into the normal operation of Transport Canada’s Navigable Waters Protection Program. There are no requirements for enforcement, compliance, or follow-up monitoring on this specific project; hence, no expenditures or allocation of resources are required.

The construction phase for the Hydromet Plant and/or Matte Plant will require approximately 5 750 and 4 950 person-years of employment respectively. Operations of the Hydromet and/or Matte Plant will require 450 and 400 employees respectively. The entire development proposal is estimated to be valued at 2.2 billion American dollars.

Consultation

Consultations on this proposal were held by Transport Canada, including public presentations on June 10, 2008, at Long Harbour, Placentia Bay, and on June 12, 2008, in Gatineau, Quebec. Members of the public and local environmental groups expressed concern with the disposal of residue into a natural fish-bearing pond and suggested that the proponent construct a man-made storage facility. The proponent has determined that construction of a man-made facility is not economically or environmentally feasible for this development proposal. However, during both consultation periods, no public concern was expressed on the proposal to remove the public right to navigate on Sandy Pond. The issues pertaining to the environment and the protection of fish habitat are being addressed by the Department of Fisheries and Oceans and the Department of Environment under proposed amendments to the Metal Mining Effluent Regulations.

Aboriginal consultation was not deemed necessary during the environmental assessment process for the Long Harbour development proposal because there are no known Aboriginal interests in the surrounding project area. However, national Aboriginal groups were invited and participated in both public consultations in Long Harbour, Newfoundland and Labrador, and in Gatineau, Quebec.

The Notice that the Governor General in Council, pursuant to section 23 of the NWPA, proposed to direct that a proclamation be issued declaring that the waters of Sandy Pond be exempt from the operation of section of the NWPA was pre-published in the Canada Gazette, Part I, on February 21, 2009, with a 30-day public comment period. No comments were received from stakeholders with respect to the proposal.

Implementation, enforcement and service standards

The Order in Council will, by proclamation, declare the waters of Sandy Pond exempt from the operation of section 23 of the NWPA and as such, will be “removing the right to public navigation.” In this instance, there are no additional legislative requirements under the NWPA and no future requirements related to Sandy Pond under the Navigable Waters Protection Program.

Contact

Ann Gillen
Navigable Water Protection Officer
Navigable Waters Protection Program
Transport Canada Marine Safety
Place de Ville, Tower C
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-0657
Fax: 613-993-8196
Email: ann.gillen@tc.gc.ca

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