TRANSPORT CANADA FINAL WRITTEN SUBMISSION TO THE NUNAVUT IMPACT REVIEW BOARD RESPECTING: AGNICO EAGLE MINES LIMITED WHALE TAIL PIT PROJECT

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2 TRANSPORT CANADA FINAL WRITTEN SUBMISSION TO THE NUNAVUT IMPACT REVIEW BOARD RESPECTING: AGNICO EAGLE MINES LIMITED WHALE TAIL PIT PROJECT NIRB #16MN056 August 14, 2017

3 EXECUTIVE SUMMARY Transport Canada is responsible for federal transportation policies and programs. It promotes an integrated transportation system that is safe, secure, efficient and environmentally responsible. Transport Canada provides expert advice and administers regulations, conducts reviews and issues approvals for works that may affect transportation. Transport Canada is providing specialist and expert information, to the Nunavut Impact Review Board (NIRB) as required under Article 12 of the Nunavut Agreement and Section 197 of the Nunavut Planning and Project Assessment Act. Transport Canada s Final Written Submission summarizes Transport Canada s mandate, roles and responsibilities, including those defined by relevant conventions, legislation, regulations, guidelines and policies that are applicable to the Whale Tail Pit project. Specific detail is provided with respect to our responsibility under the Navigation Protection Act. This information provides important context for the consideration of potential environmental impacts of the proposed project, as well as comments on the Department s mandate as it applies to information presented in the FEIS. The Department has continued to work with Agnico Eagle Mines Ltd. and other interested parties throughout this environmental assessment to assist in the development of mitigation measures and looks forward to continued dialogue and cooperation with all stakeholders, including Agnico Eagle Mines Ltd., to ensure that Transport Canada s areas of jurisdiction are being addressed. i

4 ᓯᕗᓕᖅᑏᑦ ᓇᐃᓈᖅᓯᒪᔪᑦ ᐅᓂᒃᑳᖓ ii

5 SOMMAIRE iii

6 TABLE OF CONTENTS EXECUTIVE SUMMARY... i ᓯᕗᓕᖅᑏᑦ ᓇᐃᓈᖅᓯᒪᔪᑦ ᐅᓂᒃᑳᖓ... ii SOMMAIRE... ii TABLE OF CONTENTS... iv 1. INTRODUCTION Role of Transport Canada in the NIRB Environmental Assessment TRANSPORT CANADA S MANDATE, ROLES AND RESPONSIBILITIES Navigation Protection Act (NPA) TRANSPORT CANADA TECHNICAL REVIEW COMMENTS FOR AGNICO EAGLE MINES LTD. S WHALE TAIL PIT PROJECT FEIS SUMMARY OF TRANSPORT CANADA S RECOMMENDATIONS CONCLUSION... 5 DEFINITION OF ACRONYMS FEIS NIRB NPA NPP TC Final Environmental Impact Statement Nunavut Impact Review Board Navigation Protection Act Navigation Protection Program Transport Canada iv

7 1. INTRODUCTION 1.1 Role of Transport Canada in the NIRB Environmental Assessment Transport Canada has participated through written submissions, technical meetings and prehearing conferences in the Nunavut Impact Review Board s review of Agnico Eagle Mines Ltd. s proposed Whale Tail Pit Project. Transport Canada has reviewed Agnico Eagle Mines Ltd.'s Final Environmental Impact Statement and has determined that Transport Canada will have no approvals or permits related to the environmental assessment of the proposed Whale Tail Pit Project. Transport Canada is providing specialist or expert information to the Nunavut Impact Review Board (NIRB) as required under Article 12 of the Nunavut Agreement and Section 197 of the Nunavut Planning and Project Assessment Act. 1

8 2. TRANSPORT CANADA S MANDATE, ROLES AND RESPONSIBILITIES Transport Canada is responsible for transportation policies and programs that promote an integrated transportation system that is safe, secure, efficient and environmentally responsible. The Department also has a responsibility to regulate associated transportation infrastructure, equipment and personnel in accordance with the legislation and regulations within the mandate of Transport Canada. The following briefly describes specific relevant legislation, regulations and programs administered or adhered to by the Department that influenced the content of this submission. 2.1 Navigation Protection Act (NPA) The Navigation Protection Act (NPA) is an Act of Parliament that authorizes and regulates interferences with the public right of navigation. A primary purpose of the NPA is to regulate works and obstructions that risk interfering with navigation in the navigable waters listed on the schedule to the Act. The NPA also prohibits the depositing or throwing of materials that risk impacting navigation in navigable waters and the dewatering of navigable waters. Transport Canada administers the NPA through the Navigation Protection Program. Only those waters that are specifically listed on the schedule of the NPA will be actively regulated for the placement/construction of new works. The NPA also enables proponents of works on waterways not listed in the Schedule to the NPA, to request to opt into the regime and seek Transport Canada approval of their proposed work. Sections 21 to 23 of the NPA apply to all navigable waterways irrespective of whether they are listed in the Schedule of the NPA. These sections prohibit the depositing of certain materials in navigable waters or in non-navigable waters that flow into navigable waters and the dewatering of navigable waters unless the Governor in Council provides an Order exempting the specific waterways from the applicability of section 21 to 23. 2

9 3. TRANSPORT CANADA TECHNICAL REVIEW COMMENTS FOR AGNICO EAGLE MINES LTD. S WHALE TAIL PIT PROJECT FEIS Transport Canada has structured its technical review comments to meet the submission requirements specified by NIRB on July 27, For the following comments listed in tabular format, Transport Canada has provided references or justifications for the specific issues noted, and recommendations with respect to the Whale Tail Pit project FEIS. 3.1 Navigation Protection Program Comment Number 01 Subject / Topic Dewatering of Mammoth Lake and Whale Tail Lake FEIS Reference (Volume, Section, Page, Paragraph) Volume , Volume Appendix 1-B, Appendix 1- C, Appendix 1-E Issue Navigability of Mammoth Lake and Whale Tail Lake Proponent s Statement or Conclusion (if available / relevant to the issue) Agnico Eagle Mines Ltd. will provide TC a Notice of Work form and continue to work with TC in their evaluation of the navigability assessment of Mammoth Lake and Whale Tail Lake. TC Detailed Review Comment Issue or Gap Disagreement with FEIS Conclusion Reasons for Disagreement with FEIS conclusion Comment on issue s importance to Impact Assessment Recommendation The FEIS, and additional information submitted by Agnico Eagle Mines Ltd. to date, contains the information necessary to make an assessment of the navigability of Mammoth Lake and Whale Tail Lake, and the applicability of sections of the NPA. TC has conducted a navigability assessment of Mammoth Lake and Whale Tail Lake, and has determined that a Section 24 exemption by the Governor in Council is not required. Transport Canada has reviewed the information submitted by Agnico Eagle Mines Ltd. to date and has determined that Mammoth and Whale Tail Lake are not navigable for the purposes of the NPA, and Section 23 will not apply. Agnico Eagle Mines Ltd. will not have to seek an exemption from the Governor in Council with respect to the two lakes. 3

10 Comment Number 02 Subject / Topic Intake on Nemo Lake and Whale Tail Lake, Diffuser on Mammoth Lake, Water Management Infrastructure, and Haul Roads FEIS Reference (Volume, Section, Page, Paragraph) Issue Proponent s Statement or Conclusion (if available / relevant to the issue) TC Detailed Review Comment Issue or Gap Disagreement with FEIS Conclusion Reasons for Disagreement with FEIS conclusion Comment on issue s importance to Impact Assessment Recommendation Volume , Volume , Volume , Volume , Volume , Volume , Appendix 1-B, Appendix 1-C, Appendix 2-I, Volume , Appendix 6-D In-water works proposed in or on non-scheduled waterways Agnico Eagle Mines Ltd. has stated they will not opt-in to Transport Canada s legislative regime and NPA review process for the Intake on Nemo Lake and Whale Tail Lake, Diffuser on Mammoth, Whale Tail Dike, and other water management structures located at the Whale Tail Pit Project and the proposed expansion of the exploration access road to a haul road. At this time, Agnico Eagle Mines Ltd. does not intend to alter the road alignment, culvert locations nor bridge design during the expansion of the exploration access road to a haul road. As a result, Agnico Eagle Mines Ltd. expects the original decision by TC regarding the exploration access road to carry forward into the proposed expansion to a haul road. The water intake on Nemo Lake and Whale Tail Lake, the diffuser on Mammoth Lake, and the crossings related to the Haul Road and Water Management Infrastructure are on water bodies that are not listed in the Schedule under the NPA. Transport Canada does not require the review and approval of these proposed works under the NPA. Agnico Eagle Mines Ltd. has chosen not to Opt-In for their project related in-water works on non-scheduled waterways reviewed under the NPA. Transport Canada recommends that Agnico Eagle Mines Ltd. undertake a full assessment on impacts to navigation for the in-water works on non-scheduled waterways. The responsibility to assess and address potential impacts to navigational access and safety resulting from these works rests with Agnico Eagle Mines Ltd. 4

11 4. SUMMARY OF TRANSPORT CANADA S RECOMMENDATIONS Transport Canada has reviewed the information submitted by Agnico Eagle Mines Ltd. to date and the input from surrounding communities provided at the Technical Meeting, Community Roundtable and Pre-Hearing Conference on March 2015, and determined that Mammoth and Whale Tail Lakes are not navigable for the purposes of the NPA. As the lakes are not navigable, Section 23 will not apply and Agnico Eagle Mines Ltd. will not have to seek an exemption from the Governor in Council. Agnico Eagle Mines Ltd. has chosen not to Opt-In for their project related in-water works on non-scheduled waterways reviewed under the NPA. The responsibility to assess and address potential impacts to navigational access and safety resulting from these works rests with Agnico Eagle Mines Ltd. 5. CONCLUSION Overall, the information submitted by Agnico Eagle Mines Ltd. for the Technical Review for the proposed Whale Tail Pit Project contains no major information gaps in relation to Transport Canada s mandate. If any new information is brought forward, the conclusions provided in this submission may be considered and amended accordingly. The Department has continued to work with the Proponent and other interested parties throughout the various stages of this environmental assessment and looks forward to continued dialogue and cooperation with all stakeholders, including Agnico Eagle Mines Ltd., to ensure that Transport Canada s areas of jurisdiction are being addressed. 5