Atlantic Gold’s imaginary conservation land

Atlantic Gold has just announced that in “late spring/early summer 2021” it will be undertaking a new Class 1 Environmental Assessment for modifications to its open pit Touquoy gold mine in Moose River.

Among other things, the company wants to expand its waste rock storage area that is already sky-high, prepare to store tailings in the giant mine pit when it is exhausted, realign a public road, and create a nearly six-hectare pit away from the mine site where it will procure clay, something it has already been doing for months and causing a lot of siltation in a small nearby brook.

The announcement, from Laird Brownlie, head of external affairs for the Australian company St Barbara that owns Atlantic Gold, didn’t specify whether any of the modifications are needed so the site can cope with massive amounts of rock coming to the site from the company’s proposed new mines at Beaver Dam, Fifteen Mile Stream, and Cochrane Hill, its “string of pearls” that comprise the Moose River Consolidated Project on Nova Scotia’s Eastern Shore, for which the plans have been submitted — individually and not as a consolidated project — to the Impact Assessment Agency of Canada for federal evaluation.[1]

All of which is, well, interesting, given that Atlantic Gold still hasn’t fulfilled the terms of its first provincial Environmental Assessment Approval for Touquoy open pit gold mine issued in 2008, or its 2014 Industrial Approval for the mine. Those required the company to submit a plan for procuring conservation land and handing the land over to the province to compensate for the land lost to the Moose River mine in Halifax Regional Municipality.

Whatever the reason, the provincial government seems unwilling to talk about these unfulfilled conditions.

A list of questions emailed to Nova Scotia Environment and Climate Change on February 28, 2021 asking about the status of the conservation land, resulted in a thread of 13 emails over the next 12 days, and no real answers to my questions.

Next, I resorted a Freedom of Information request (FOIPOP), submitted on March 15. That produced a mere 10 pages of documents, most of which were my emailed questions to Nova Scotia Environment, along with redacted intra-departmental email discussions on how to respond to my questions.

But the FOIPOP also produced a rather astonishing “agreement” between the province and Atlantic Mining NS, the Atlantic Gold affiliate that runs the Moose River mine. The agreement was signed by the company in 2019, but not signed by Environment and Climate Change Minister Keith Irving and Lands and Forestry Minister Chuck Porter until March 25, 2021. For the record, that would have been not quite four weeks after my persistent email inquiries, and 10 days after the FOIPOP went in.

But let me back up a bit and take it step by step, as it’s a convoluted and mysterious tale, which goes back 13 years.

Clear terms and conditions set in 2008

In February 2008, an Australian company, DDV Gold, received Environmental Approval from the Nova Scotia government for its Moose River open pit gold mine, known then as the Touquoy Gold Project. At that time, Canadian legislation did not require a federal environmental assessment for a mine the size of the one being proposed at Moose River, although it would have triggered one had it been proposed after the 2012 Canadian Environmental Assessment Act came into effect.

The provincial Environmental Approval, signed by then-Environment Minister Mark Parent in the Progressive Conservative government of Rodney MacDonald, was subject to 12 terms and conditions.

The second of those stipulated that:

Within four years of the date of this Approval, the Proponent shall develop and implement a plan for procuring conservation land with valued protected areas attributes in the vicinity of the Undertaking for statutory protection by the province. The plan shall be developed in consultation with NSEL [Nova Scotia Environment and Labour], NSDNR [Department of Natural Resources], the Community Liaison Committee, and any other parties identified by NSEL. The plan must be approved by the Minister prior to implementation.

In other words, by February 2012, DDV Gold was obliged not just to have a clear plan of how it was going to acquire a biodiverse parcel of land not too far from the planned Moose River gold mine to hand over to the province for protection, but it was also to “implement” — act on — that plan.

That didn’t happen.

Same terms set again in 2014

Nevertheless, on March 24, 2014, the province went ahead and issued an Industrial Approval (IA) — number 2012-084244-08 — to the company that DDV Gold had morphed into, namely Vancouver-based Atlantic Gold.

Section 14 of that IA, “Environmental Assessment Approval,” stated in legalese — but clear legalese — that:

1. The Approval Holder shall comply with the terms and conditions of the Environmental Assessment Approval dated February 2008 for the open pit (surface) gold mine and mineral processing facility (Touquoy Gold Project) situated at or near 6749 Moose River Rd, Moose River Gold Mines, Halifax Regional Municipality (the “Site”).
2. i) Within one year of the date of Approval Amendment, the Approval Holder shall complete a plan, acceptable to NSE, for procuring conservation land. The lands shall possess valued protected area attributes in the vicinity of the Site for statutory protection by the Province, consistent with Condition 2.1 of the Environmental Assessment Approval. If an acceptable plan has not been completed within this time, the Approval Holder shall post a financial security in the value of $500,000 with the Province. The security shall be returned to the Approval Holder once an acceptable plan has been implemented. 
ii) The form of security and any revision to the security or plans shall meet the approval of the Province.
3. The Approval Holder shall submit a semi-annual update (April 30 and October 30) on the status of compliance with conditions of Environmental Assessment Approval for the first two years following Approval Amendment and, thereafter, at the request of the Department.

In other words, by 2015, Atlantic Gold was to provide the government with a plan for acquiring conservation land equivalent in ecological value to what the planned open pit gold mine in Moose River would destroy, and if it failed to do so, the company would have to post half a million dollars as a security to the province.

As reported here, the Halifax Examiner first asked Nova Scotia Environment (NSE) about the status of this legal condition for Atlantic Gold to procure and hand over conservation land to the province in March 2020, a full three years after Atlantic Gold — which by then had been acquired by the Australian company St Barbara Ltd. for $722 million — had begun production at the Moose River gold mine.

At that time, NSE spokesperson Rachel Boomer replied:

The province has been in ongoing negotiations with Atlantic Gold with respect to these conditions for a number of years. We have reached a draft agreement and are working to finalize the details. Once all parties sign the agreement, the company will have four years to buy the land. We hope to have this agreement signed by all parties in the coming months. Our goal is to have the company purchase 256 hectares’ worth of land for protection with high biodiversity value, similar to the land being protected [assuming she meant “affected”] by the project. [emphasis added]

This brings us back to that surprising “agreement” that a FOIPOP revealed, between “Atlantic Mining NS Corporation (formerly known as DDV Gold Limited),” and the Nova Scotia Ministers of Environment and Climate Change, and of Lands and Forestry.

In fact, the agreement — which constitutes a “Conservation Lands Procurement Plan” — does not ensure, as Boomer told the Examiner last year that, “the company will have four years to buy the land.”

Not at all.

What it does say is:

3.1. This Agreement shall be effective on the date it has been signed by all parties, and shall have a term of four years. The Province and the Proponent intend that all lands will be acquired within four years of signing of this Agreement. Failure to complete the acquisition of the required lands within this time period shall not relieve the Proponent of its obligations under the [Environmental] Approval.

3.2 After the expiry of the initial term outlined in paragraph 3.1, this Agreement shall automatically renew each year until the completion of all conservation land acquisitions contemplated under the Agreement, unless the parties agree in writing to earlier termination.

You don’t have to be a lawyer to understand that there is a difference between “the company will have four years to buy the land,” as Boomer said in 2020, and what the new agreement states, which is that the province and Atlantic Mining NS/Atlantic Gold “intend that all lands will be acquired within four years” of the date it was signed, which was March 25, 2021.

Nor do you have to have an advanced law degree to realize that this agreement effectively removes any fixed deadline for the fulfillment of this condition of the 2008 Environmental Approval and the 2014 Industrial Approval.

However, this does raise questions that do require legal expertise to answer. Does, for instance, a term/condition without a fixed timeline still constitute a term/condition? And does the failure to comply with a term or condition in an Environmental Approval or Industrial Approval constitute an offence under Nova Scotia’s Environment Act?

“A bit of a mystery”

Jamie Simpson is an environmental lawyer with Juniper Law in Halifax, and he says that failing to fulfill a condition of any approval — environmental or industrial — that’s issued under the Environment Act is indeed an offence, and a chargeable one.

Simpson continues:

It’s an interesting move on the part of the province to make a requirement as a condition of the Environmental Assessment Approval that they will purchase this amount of land in order to make sure that it’s protected. But it’s too bad that they didn’t require it to happen. Years and years went by, obviously, with nothing actually happening. And then finally, in order to get rid of the condition, they basically entered into an agreement in order to get that outstanding condition off the books, an agreement doesn’t really have an end point. There’s no fixed timeline associated with fulfilling the terms of that agreement. So whether this will ever actually happen, it’s hard to say.

In Simpson’s view:

Obviously, the province is looking for ways not to enforce that, in either the environmental assessment or the industrial approval. They’re looking for ways around having those outstanding conditions not being fulfilled. Ultimately, the province could issue an order, like a ministerial order that compels the company to comply with the conditions or they can take them to court.

Simpson tells the Halifax Examiner the whole thing is “a bit of a mystery,” as there is no way of knowing “where decisions are being made and for what reasons.” He says there is “a lot of political stuff that goes on in determining how the province chooses to interact with companies,” something he calls “unfortunate.”

Simpson is “not too surprised” that the province failed to lay charges against DDV Gold or its successor, Atlantic Gold/Atlantic Mining NS, although Nova Scotia Environment has laid 32 environmental charges against the company, as the Examiner reported here, here and here. Those charges are related to its Moose River gold mine and its exploration activities at Fifteen Mile Stream where Atlantic Gold plans another of three additional gold mines. After two postponements, the case will be heard in the Provincial Court in Dartmouth on June 1.

Simpson believes there is a lot that could be done to get companies to comply with conditions in their approvals by “simply enforcing” the laws that are already on the books. When they are not, Simpson says, “it’s a bit of an insult to the environmental assessment process.”

“When conditions are given, they aren’t always enforced or followed up on,” according to Simpson. He says enforcement of environmental legislation in Nova Scotia is “not ideal,” and refers to a 2014 report done by the East Coast Environmental Law Association (ECELAW).

One charge for every 500 inspections

ECELAW undertook the 2014 study together with the Environmental Law Student Society at Dalhousie University’s Schulich School of Law, to “investigate the government’s prosecution record for violations of the Environment Act” and to assess “the information the provincial government makes available regarding environmental enforcement.” Their findings were hardly encouraging:

We found that Nova Scotia Environment lays 1 charge for every 500 compliance inspections it conducts. The majority of fines issued for successful convictions are $500 or less. The number of charges laid in recent years is lower than in previous years. Most of the information we sought for this report is identified in the Environment Act as part of the public environmental registry. However, to access the information, we had to rely on formal requests through the Freedom of Information and Protection of Privacy (FOIPOP) Act and frequently the information we received was insufficient to provide a full picture of environmental enforcement in Nova Scotia. The stated purpose of the Environment Act is to support and promote the protection, enhancement and prudent use of the environment while recognizing key goals including providing provide “access to information affecting the environment.”

The report recommended that the government make environmental information publicly accessible to Nova Scotians by “creating an on-line environmental enforcement database that includes:”

• Information about inspections undertaken in accordance with the Environment Act …
• Information on complaints and investigation applications received by NSE each year
• Information on the charges laid under the Environment Act each year, the nature of the offences, the location of the offences and the final outcome (withdrawn, dismissed, acquitted, convicted)
• Copies of directives issued by inspectors
• Copies of orders issued by the Minister including Ministerial Control Orders …

Given the many unanswered questions the Examiner has submitted to Nova Scotia Environment and Climate Change about the unfulfilled condition it issued to DDV/Atlantic Gold in 2008, and then again in 2014, there is no evidence that the provincial government heard these recommendations for more environmental enforcement and transparency.

In 2017, then-Auditor General Michael Pickup also issued a scathing report about environmental assessments in Nova Scotia, which concluded that, among other things:

• Poor monitoring of projects increases risks to the environment
• Monitoring of terms and conditions of project approvals is weak (not done for almost half of the project terms and conditions tested)
• Department [of Environment] not evaluating whether terms and conditions are working

13 years of extensions

The Examiner sent several questions about the agreement about the conservation land to Nova Scotia Environment and Climate Change after receiving the FOIPOP package:

1. Was a plan for this conservation land submitted by March 2015?
2. If not, did Atlantic Gold post a financial security with the province in the value of $500,000?
3. As the proponent had not fulfilled condition 2.1 of the 2008 IA by 2012, why was an Industrial Approval granted in 2014 and the mine permitted to go into operation?
4. Which of the two documents — the EA Approval or the IA — is actually in force?
5. What are the penalties for failing to comply with the terms in these two documents?
6. The latest IA online is dated 2020, and it states on page 32 the same term that was in the initial IA issued in 2014, which still appears to give the Approval Holder one year to comply with the EA Term about conservation land. Shouldn’t the Approval Holder have complied by 2015? Or even by 2012, four years after it received its EA? Please can you clarify this?
7. It states that this land is to be protected by the Province, but a new agreement drawn up with Atlantic Gold received through a FOIPOP refers to the Nature Conservancy or Nova Scotia Nature Trust? Why would this protected area not be a provincial one?

Spokesperson Barbara MacLean sent this reply:

There had been a number of extensions over the years by the department, which is why a plan was not submitted by March 2015, and why the department did not request a bond. These extensions by the department were considered when the IA was granted in 2014. The EA and IA are both still in force.

The plan identifies the Province, Nature Conservancy of Canada, and Nova Scotia Nature Trust as potential final title holders. Regardless of who owns the land, the intention is for the lands to be designated under the Special Places Protection Act and/or Wilderness Areas Protection Act. Those designations can occur regardless of who among those entities owns the land.

Regarding your question about penalties, in all cases, if an inspector deems a proponent non-compliant with Terms and Conditions of their Approval, they begin by working with the proponent to re-achieve compliance. If and where required, penalties in the form of Summary Offence Tickets, Long Form Prosecution, and/or the issuance of Ministerial Orders can be considered. No penalties were applicable related to the conservation land agreement as both parties were working to reach a final agreement.

The Examiner also emailed Dustin O’Leary, communications manager for Atlantic Gold/Atlantic Mining NS, with a list of specific questions about the history of conservation land condition in its EA and IA for the Moose River gold mine:

1. Did Atlantic Gold (or Atlantic Mining NS) submit a plan for this conservation land by 2012, as stipulated in the 2008 EA approval? If not, why not?
2. Did Atlantic Gold (or its predecessor) submit a plan for this conservation land by March 2015, in accordance with the IA condition?
3. If not, why not … and did Atlantic Gold post a financial security with the province in the value of $500,000?
4. If not, why not?
5. What is the progress on the identification of the conservation land and its acquisition by Atlantic Gold? When do you foresee this condition being met?

O’Leary did not answer the individual questions, sending this statement instead:

It is important to recognize that St Barbara Ltd acquired Atlantic Gold Corporation in July 2019. St Barbara prides itself on meeting all regulations of the federal and provincial governments and honouring the commitments made prior to St Barbara’s acquisition.

Subject to the 2008 Environmental Assessment, Atlantic Gold submitted a detailed plan to acquire valued conservation land subject to the approval of the Province of Nova Scotia, specifically Nova Scotia Environment and Climate Change. Nova Scotia Environment and Climate Change reviewed this plan with Atlantic Gold staff and updates were made in both 2015 and 2019. However, Atlantic Gold Corporation nor St Barbara Ltd were able to move forward with the purchase of conservation lands until an approval was received.

In Spring 2021, the Province of Nova Scotia provided the necessary approval on St Barbara Ltd’s procuring of conservation lands plan. St Barbara Ltd is now moving forward to locate suitable lands and place them into a conservation status. Our company looks forward to making an announcement on the finalizing of the land purchase in the months ahead.

What kind of conservation lands?

The agreement obtained through the FOIPOP states that Atlantic Gold’s “maximum contribution,” including “purchase prices, valuable costs, survey costs and other reasonable transaction costs” is $500,000. That is the same amount as the financial security that the 2014 Industrial Approval obliged the company to post with the province if it had not submitted an acceptable plan for the land within a year.

Neither Atlantic Gold nor Nova Scotia Environment and Climate Change replied to questions about whether that half million-dollar security, a clear legal obligation according to the 2014 IA, was ever posted. However, it looks as if it wasn’t. There is no sign of it in the annual reports the company made to the federal government under the Extractive Sector Transparency Measures Act (ESTMA) for 2016, 2017, 2018, 2019 and 2020. Those reports do show that the company has so far paid $0 in taxes to the federal and provincial governments, despite having produced gold worth several hundreds of millions of dollars in recent years at the Moose River mine.

The agreement stipulates that 265 hectares of “Conservation Lands,” intended to compensate for the area “disturbed” — surely an understatement of the grotesque  destruction caused — by the Moose River gold mine, should be of “high-conservation-value,” but may “consist of multiple parcels.”

It states that the lands should also be suitable for:

…any entities which may act as ultimate title holders for the Conservation Lands, for transfer to the Province, the Nature Conservancy of Canada, and/or the Nova Scotia Nature Trust and permanent statutory protection under the Wilderness Areas Protection Act or Special Places Protection Act.

The irony of it all

Jamie Simpson says there is certainly irony in this plan — be it as yet unfulfilled — for Atlantic Gold to procure conservation lands, given what the province has not done to protect Owls Head Park, a “globally rare” ecosystem on the Atlantic Coast about 30 kilometres southeast of Atlantic Gold’s open pit gold mine at Moose River.

Simpson is legal counsel for the Eastern Shore Forest Watch Association and Nova Scotian wildlife biologist Bob Bancroft, who have applied for a judicial review “of the Minister of Lands and Forestry’s decisions to de-list Owls Head Provincial Park from the Our Parks and Protected Areas Plan and to enter into an agreement to sell the land to a private company, Lighthouse Links, for development into a golf resort.”

In December 2019, CBC reporter Michael Gorman broke the news to Nova Scotians that unbeknownst to them, the provincial government had secretly de-listed Owls Head as provincial land slated for official protection. Gorman reported that then-Lands and Forestry Minister Iain Rankin said the government was comfortable removing the designation because Owls Head isn’t a priority for legal protection.

Instead, the government was offering Owls Head to Beck Gilbert, a wealthy (or as Tim Bousquet put it) a “filthy rich” American, for his Lighthouse Links proposal that would be “comparable to Cabot Links and Cabot Cliffs” in Cape Breton, and involve the construction of golf courses and “a destination residential or resort community.”

The December 16, 2019 letter of offer signed by Rankin, states that the 705.2 acres (285.3 hectares) of previously protected Crown land at Owls Head would be sold to Lighthouse Links Development for just $306 an acre, a mere $215,791 for a property with nearly eight kilometres of shoreline.

Citizens have mobilized to try to pressure Rankin, now Nova Scotia premier, to reverse the decision he made when he was Lands and Forestry minister, joining a “Save Owls Head Provincial Park” Facebook page by the thousands, developing a webpage full of resources, demonstrating in Halifax, and circulating a petition.

The matter is also still in court. As Jennifer Henderson reported for the Examiner, on April 1, 2021, Supreme Court Justice Christa Brothers reserved her decision on the judicial review, and Premier Rankin is showing no signs of reversing the decision to de-list Owls Head, which has been found by scientists to be “ecologically important habitat” and thus high-conservation-value land.

Namely, the kind of land that Atlantic Gold is supposed to be acquiring for conservation in the same part of the province.

Says Simpson, “It’s interesting that on one hand the province would require the protection of this 265 hectares from Atlantic Gold. But at the same time, they would quite easily just give away a similar amount of land to an industrial developer.”

Simpson pauses, then adds, “Just, wow.”

Barbara Markovits of Eastern Shore Forest Watch Association, one of the applicants for the judicial review of the de-listing of Owls Head for protection, has described the Eastern Shore of Nova Scotia as a “sacrifice zone” because of all the clearcutting and now gold mining.

Markovits is also the person who in 2020 alerted me to the unfulfilled term in the 2008 Environmental Approval that Nova Scotia Environment issued to DDV Gold for the Moose River gold mine.

Asked for her thoughts about the company’s failure to comply with the terms of its EA and IA for the Moose River mine, and a new agreement with the province that effectively means Atlantic Gold need never comply, Markovits says:

Fulfilling one’s obligations, whether you’re a person or a corporation, is a sign of character. Atlantic Gold has been slip-sliding away for 13 years from its minimal obligation to purchase land for protection and to give the land to the people of Nova Scotia. This refusal to meet its obligation reveals corporate character. It is aided and abetted by successive provincial governments through regulatory capture.

When Eastern Shore Forest Watch first met with Atlantic Gold executives 14 years ago, I asked why Atlantic Gold had held a required community meeting in Moose River, population of nine. One of the Atlantic Gold people said, “We did the minimum.” In a flash, the corporate character of Atlantic Gold revealed itself to us. They’re still doing the minimum. Or less, if they can get away with it.

[1] Since St. Barbara Ltd acquired Atlantic Gold in 2019, the documents on the Moose River Consolidated Project have disappeared, along with the erstwhile Atlantic Gold website, but they can be retrieved using the Wayback Machine, Internet archive by searching for: http://www.atlanticgoldcorporation.com/projects/moose_river/