SASKATCHEWAN - ENVIRONMENTAL REGULATIONS
Canada is the second largest country in the world by geographic size, covering nearly 10 million square kilometres. The country is divided into ten provinces and three territories, namely Alberta; British Columbia; Manitoba; New Brunswick; Newfoundland and Labrador; Nova Scotia; Ontario; Prince Edward Island; Quebec; Saskatchewan; Northwest Territories; Nunavut and Yukon. Canada’s only international land border is shared with the U.S. and is the longest in the world; eight of the thirteen provinces and territories, plus 13 U.S. states sit along the border.
Saskatchewan is one of only two land-locked provinces in Canada, with Alberta (the other) neighbouring to the west, the Northwest Territories bordering to the north, Nunavut to the north-east, Manitoba to the east and the U.S. states of North Dakota and Montana to the south. It is the 5th largest province in Canada by area and, along with Alberta and Manitoba, one of the three Prairie Provinces, so-called due to their location on the prairie lands of Canada. Saskatchewan is a vast expanse of flat plains, grassland and large expanses of farmland, with the province’s rich soil offering the perfect environment for wheat and barley to grow. In fact, the province is often referred to as the ‘breadbasket’ of Canada and, according to Statistics Canada, Saskatchewan accounts for over two-thirds of Canada’s total field crop acreage with 36.7million total acres (2017). Aside from prairies and farmland, nearly 10% of the province is covered by water, with Saskatchewan known to have over 100,000 lakes.
The province has a continental climate, with temperatures varying significantly between seasons. During the summer months temperatures can rise to 35°C, whilst in winter the temperature can sit as low as -15°C for sustained periods. Saskatchewan is also prone to tornados, with tornado season running from April to September. According to data from September 2018, 19 tornados had been recorded that year.
Northern Saskatchewan is mainly boreal forest with pine, spruce and fir trees common, with mainly grassland in the southern region. The province is home to a variety of bird and animal life. Species include: sharp-tailed grouse (the provincial bird); the Hungarian partridge; various types of osprey and eagle; beavers; elk; moose; wolves; bobcat; porcupine; burrowing owl; and swift fox.
PRINCIPAL LEGISLATION AND REGULATOR
In Canada, environmental protection is primarily the responsibility of the provincial governments and various pieces of legislation are important to the regulation and management of environmental matters in Saskatchewan. In terms of the mining industry and the environmental assessment (EA) process, the primary piece of legislation is the Environmental Assessment Act 1980 (EAA), which is supplemented by the various guidelines published by the Saskatchewan government to guide project proponents through the EA. Guidelines include the: Technical Proposal Guidelines (TPG); Proponent Consultation Guidelines (PCG); Terms of Reference Guidelines (TORG); and the Technical Review Guidelines (TRG). The 2014 ‘Environmental Assessment in Saskatchewan’ (EA Guide) provides a high-level overview of all stages of the EA process under the EAA and directs proponents to the relevant stage specific guidelines within its content. The government has also issued mineral specific guidance under the ‘Mineral Exploration Guidelines for Saskatchewan’ (MEGS). This document, published in 2012, provides information to assist in the planning, initiation and completion of a mineral exploration programme in order to reduce the environmental impacts of the project (see ‘Introduction’, MEGS).
Other relevant legislation includes the: Environmental Management and Protection Act 2010; Environmental Management and Protection Regulations 2010; Mineral Industry Environmental Protection Regulations 1996; the Crown Minerals Act 1985; the Mineral Tenure Registry Regulations 2012; and the federal environmental laws (see below).
Environmental protection matters are overseen by the Ministry of Environment (Ministry), headed by the Minister of the Environment (Minister). The EA process is administered by the Environmental Assessment Branch of the Ministry (EAB) which is responsible for conducting initial screenings, technical reviews and co-ordinating the EA. Where necessary, the EAB will also co-ordinate with federal environmental authorities. Representatives from various provincial ministries and agencies with environmental and socio-economic interests or responsibilities also sit on the Saskatchewan Environmental Assessment Review Panel (SEARP). The SEARP provides the multidisciplinary expertise required to evaluate potential environmental impacts from proposed developments (s. 2.1, TRG). Opinions of the SEARP will be sought at each stage of the EA process, as outlined under the TRG.
For projects which require a federal as well as provincial EA, the relevant legislation is the Canadian Environmental Assessment Act 2012 and the federal environmental authority is the Canadian Environmental Assessment Agency (CEAA). A co-operation agreement on EAs was signed in 2005 between the federal and provincial governments. The agreement provides for a co-operative environmental assessment process.
Pursuant to section 8, EAA, a proponent must obtain ministerial approval in order to proceed with a project classified as a development under the EAA. A development is defined under section 2(d) as any project, operation or activity which is likely to:
- have an effect on any unique, rare or endangered feature of the environment;
- substantially utilise any provincial resources and in so doing pre-empt the use, or potential use, of that resource for any other purpose;
- cause the emission of any pollutants or create by-products, residual or waste products which require handling and disposal in a manner that is not regulated by any other Act or regulation;
- cause widespread public concern because of potential environmental changes;
- involve a new technology that is concerned with resource utilisation and that may induce significant environmental change; or
- have a significant impact on the environment or necessitate a further development which is likely to have a significant impact on the environment.
Note that in relation to exploration, the MEGS outline the various permits required for exploration activities and directly refers to the EA process. Therefore, if exploration activities are determined to be a ‘development’ under the EAA, the requirement for an EA will be triggered.
In light of the above, the first step in the EA process is a screening process to establish if the project classifies as a development. Initially a self-assessment may be carried out by the project proponent (s. 2, TPG). Under the TPG, a self-assessment checklist is provided to guide proponents in determining whether their project is a development (see Appendix A – Self Assessment Checklist, TPG). Should proponents decide that the project is not a development under the terms of the EAA, the proponent may proceed with acquiring the necessary permits and licences for the project. Where the proponent is of the opinion that the project is (or may be) a development, an application must be made to determine whether or not the project is a development and, as such, one which requires ministerial approval (s. 7.2, EAA).
In order for a determination to be made on a project and / or when the proponent considers the project to be a development, a Technical Proposal must be submitted along with the online application form (s. 3, EA Guide). Technical Proposals are to be prepared by a Qualified Person (s. 3.1, TPG). Detailed information on the content requirements of the Technical Proposal can be found within the TPG. The document should describe the project and identify the possible environmental impacts, along with any measures planned to reduce or avoid those impacts (s. 3.4, TPG). The Technical Proposal shall contain the following: an executive summary; a project description; a description of the environment; the potential impacts and mitigation measures; information on monitoring programmes; and methods and plans for decommissioning and reclamation (s. 3.4, TPG). The TPG also provides for stakeholder engagement on the project. Proponents are expected to hold public meetings and host informal discussions with potentially interested parties at the Technical Proposal stage. Documentation arising from such meetings and discussions should be included within the Technical Proposal (s. 3.4.7, TPG). In addition, as with the other provinces and territories in Canada, there is a legal obligation to consult with First Nations and Métis communities in advance of any decision that may impact upon their protected rights. The TPG recommends that during the Technical Proposal stage, engagement with such groups be made (s. 3.4.8, TPG). Engagement at this early stage is seen as beneficial to the project and helpful to facilitating subsequent consultations during the EA process. The application made with the Technical Proposal must contain information on: the project type; the industry sector; location; responses from the ministry relating to the project (if any); research conducted to date; and any other relevant information (s. 3.3, TPG). Additional items such as site plans, land surveys and qualification verification documents may also be required (see s. 3, TPG). Supplementary information to accompany the application may be requested (s. 7.2(3), EAA).
The Technical Proposal and accompanying application will then be screened by the EAB, which will consider the facts surrounding the severity of potential environmental impacts (s. 4, EA Guide). The opinion of the SEARP may be sought at the screening stage, as well as various other governmental authorities (s. 4, EA Guide). The EAB will reach a determination on the project and the Minister will then issue a determination as to whether or not the project is a development (s. 7.3, EAA; see also s. 4, EA Guide & s. 4, TPG). Notification on the Ministerial determination will be made within 10 days of a decision being reached (s. 7.4, EAA). If the Minister determines that the project is a development, ministerial approval must be obtained before the project can progress - which means an Environmental Impact Assessment (EIA) must be conducted (s. 7.5, EAA; see also s. 8, EAA and s. 5, EA Guide). In such cases, the Minister must issue a public notice that an EIA is to be carried out (s. 10, EAA). If the project is not determined to be a development, ministerial approval shall not be required (s. 7.6, EAA).
The next stage of the EA process is a scoping stage, during which proponents must prepare Terms of Reference (TOR) (s. 5, EA Guide). A template TOR, along with extensive guidance on the TOR requirements can be found in the TORG. The TOR must outline the information to be gathered during the EIA and set out how it will be presented in an Environmental Impact Statement (EIS) (s. 3, TORG). The template TOR provides for the following sections / information to be included: a project overview; details of the Valued Ecosystem Components (VEC); the EIA process; descriptions of the plans for decommissioning, reclamation and institutional control; plans for public engagement and consultation; environmental conditions management; general EIS requirements; and plans for environmental reporting and follow-ups (see Appendix A, TORG). An electronic copy of the draft TOR must be submitted to the EAB for approval (s. 3, TORG). In conducting its review of the draft TOR, the EAB will consult with the SEARP (see s. 4, TRG) and will provide comments to assist the proponent in preparing the EIS (s. 5, EA Guide). Once the TOR have been approved, the proponent may commence the EIA (s. 3, TORG).
The requirement to conduct an EIA and submit an EIS to the Minister is provided for under section 9, EAA. All costs in relation to the EIA and the EIS are to be borne by the project proponent (s. 9(3), EAA). The EIA and EIS shall be prepared in accordance with the approved TOR. According to the TRG, the EIS will: state the potential environmental impacts of the development; provide analysis of alternative approaches to avoid or lessen the impacts; outline the steps the proponent will take to avoid or minimise the impacts of the preferred approach; and identify the residual effects and mitigation measures (s. 5, TRG). Following submission of the EIS a review will be conducted (s. 11(1), EAA). In the first instance a technical review will be carried out by the SEARP (s. 6, EA Guide; see also s. 5, TRG). The factors the SEARP will consider in completing its review are outlined under section 5, TRG. Deficiencies in the EIS will be sorted into four categories (s. 5, TRG). Type 1 deficiencies must be addressed before the public review stage can commence. Deficiencies may require the submission of addendums to the EIS or, in certain instances, a revised EIS (s. 6, EA Guide). The SEARP review shall be conducted within 30 days and Technical Review Comments (TRC) shall be compiled. Once the EAB is satisfied with the EIS, the TRC of the SEARP shall be compiled into a report to assist the public in reviewing the EIS and to guide decision-makers in evaluating the project (s. 6, EA Guide). The TRC will provide information regarding potential environmental impacts, the significance of the impacts and the effectiveness of the proposed mitigation measures (s. 6, EA Guide). If SEARP disagrees with some of the proponent’s conclusions, these points will be raised in the TRC.
Following the technical review of the EIS, a public comment stage shall commence (s. 11(2), EAA), though public consultation will form part of the entire EA process (s. 7, EA Guide). The EAA states that any person may inspect the EIS and make written submissions within 30 days of the public release of the EIS (or 60 days if appropriate) (s. 12, EAA). The Minister also has the right to hold meetings and initiate inquiries (ss. 13 – 14, EAA; see also s. 7.2, EA Guide). It should also be noted that the proponent must play a role in any consultation arising out of the Duty to Consult with First Nations and Métis communities. Further guidance on such consultations can be found within the PCG.
The EA process shall be completed with the issuance of a ministerial decision on the project (s. 15, EAA). A decision shall be issued when the Minister is satisfied that the proponent has met all requirements of the Act and must be made within a ‘reasonable time’ (s. 15(1), EAA). The Minister may either approve the project, subject to any terms and conditions deemed necessary, or refuse to approve the project. In reaching a decision the Minister shall consider if there will be adequate safeguards and protection for the environment if a project proceeds (s. 8, EA Guide). Notice of the decision and written justifications shall be given to the proponent, as well as any person who submitted comments (s. 15(2), EAA). Projects must proceed in accordance with the ministerial decision (s. 17, EAA).