When corporate interests trump the human right to clean drinking water, A Manitoba case of concern by Don Sullivan, June 29, 2021, Canadian Dimension
The business of silica sand extraction
Silica sand mining has become big business, and there are two primary markets for high grade silica sand these days.
The first is oil and gas fracking. Hydraulic fracturing requires huge volumes of silica sand. The other big market for large volumes of high grade silica sand is float or flat glass manufacturing.
In 2019 the United States alone required 104 million tonnes of silica sand for fracking operations and the global market for float or flat glass in 2020 was 84 million tonnes, requiring approximately 60.5 million tonnes of silica sand.
Manitoba has a very large untapped deposit of high grade silica sand that can go some way to filling this demand for both these markets, and there is now a concerted effort to exploit this resource.
Two corporations, both Alberta-based, are in the midst of seeking Government of Manitoba approval to build and operate silica sand mines and processing facilities that would extract and process some 2.6 million tonnes of silica sand per year.
One proposed silica sand mine, the Vivian Sand Processing Facility (operated by CanWhite Sands Corp., or CWS), would employ an unconventional and unproven mining method of extracting the silica sand by pumping it, via a modified airlift pumping system, from deep within the aquifer that supplies drinking water to all of southeastern Manitoba.
Potable water is a basic human right
The main concern with CWS’s proposed unconventional mining method is that large amounts of excess aerated water will be returned to the aquifer. This aerated water will react with proven sources of sulphide contained in the aquifer to form acid that will mobilize heavy metals potentially contaminating the aquifer.
There is also a potential for cross contamination by mixing water from the sandstone aquifer with the carbonate aquifers, which is illegal under Manitoba law.
Finally, extremely toxic chemicals from the CWS processing plant clarifier tank could enter the water table from slurry line spillage, wash plant leakage and sand stockpile runoff.
These water contamination issues and other adverse impacts related to CWS’s unconventional mining method were raised in a published 47-page report prepared by What the Frack Manitoba science researcher, Dennis LeNeveu. The conclusions in this report were supported in a February 2021 letter by renowned scientist, Dr. Anthony R. Ingraffea, the P.E. Dwight C. Baum Professor of Engineering Emeritus Distinguished Member ASCE at Cornell University’s College of Engineering. In it he noted:
I have thoroughly reviewed the above-referenced report… I can state at the outset that this report is very professionally written, well documented, and evidences very good knowledge of a wide range of related technical issues including mineralogy, well design, chemistry, and regulations. I found no error in any of the calculations embedded in the report, and fully support the hypotheses for both contamination and subsidence tested by Mr. LeNeveu’s analyses of available data.
Clean water is recognized by the United Nations as a fundamental human right, and it was also affirmed by Canada in 2012. So far, in the efforts to protect this right for those living in southeastern Manitoba, local groups working on this issue have come up against two levels of government that have employed sharp dealings, and demonstrated a clear apprehension of bias in favour of CWS by those charged with administering the environmental review process under provincial and federal legislation.
Both levels of government have in fact circumvented their own legislation Seems to be standard practice by “regulators” and gov’ts everywhere frac’ing occurs. I think because it’s impossible to make any part of the process safe for humans, other species and our environment ensure that the CWS proposed silica sand project escapes the public and independent scientific scrutiny it deserves.
What follows is an account of just some of the most egregious examples of government acting to thwart efforts by citizens to obtain the transparent review process necessary to ensure that residents of southeastern Manitoba have continued unimpeded access to clean drinking water, and are not adversely affected by CWS’s unconventional extraction activities.
Sharp dealings on environmental assessment process
“Sharp dealings” is a legal term used to describe sneaky maneuvers that are technically legal but border on the unethical.
There are several examples of this in the case of the proposed CWS silica sand mining project.
The most flagrant of these is the way in which both the provincial and federal governments set out initially to limit the scope of the review of the proposed CWS development project under the Manitoba Environment Act and the federal Impact Assessment Act, respectively.
The proposed single project consists of a processing facility, with a wet and dry plant, to process the raw silica sand to make it market ready; a rail yard loading facility, so that hundreds of rail cars weekly can be loaded with processed silica sand and shipped to market; and finally, the extraction or mining-related activities associated with the harvesting of the silica sand that gets sent to the processing facility.
In July 2020, the Government of Manitoba made the decision to allow CWS to split this one development project into two, to be reviewed, approved and licensed separately under the Manitoba Environment Act.
The provincial government made the decision to review the CWS processing plant and rail yard loading facility first, and once the CWS processing plant and rail yard loading facility is reviewed, approved and licensed by the Government of Manitoba, it will allow CWS to proceed to the construction phase. Only then would it be necessary for CWS to submit a second Environment Act Proposal, under the Manitoba Environment Act, for review and approval for CWS mining related activities associated with the extraction of the silica sand.
By taking this approach, it pretty much guarantees that the most egregious aspect of this single project—the extraction-related activities—will be approved by the Manitoba government. This is because once the province approves the CWS processing facility and rail yard in a separate licensing process, it can hardly deny a second licence to CWS to mine the silica sand that is required to feed the already approved processing plant and rail yard loading facility.
At minimum, if the Government of Manitoba were at all interested in demonstrating its responsibility to undertake a transparent environmental review process, it would have insisted that CWS mining activities be reviewed, assessed and approved first.
Because of the unconventional nature of extracting the silica sand, a method which has never been employed in any other silica sand mining project anywhere, the Manitoba government should have invoked best practices under the Manitoba Environment Act and convened the Clean Environment Commission, a semi-independent body, to undertake a full public panel review of the CWS proposed development project. But this did not occur.
Since coming to office in 2016, the Government of Manitoba has never once convened the Clean Environment Commission to conduct an independent review of any major development project under the Manitoba Environment Act.
While the Manitoba government’s strategy to avoid undertaking a fair, transparent and independent environmental review of the CWS proposed silica sand mining development project is perfectly legal under the Manitoba Environment Act, it certainly constitutes a clear example of sharp dealings.
Once it became apparent that this proposed development project was not going to be properly assessed and reviewed by the Government of Manitoba, local groups and organizations immediately wrote to the federal minister of the environment and climate change, Jonathan Wilkinson, in the late summer of 2020 to request that the minister exercise discretionary power under the federal Impact Assessment Act to designate the proposed CWS development project a federal physical activity for review under the IAA, as there were no automatic federal triggers at the time to review this proposed development project under the federal Act.
Under the federal IAA, once a designation request is made under the discretionary powers provisions in the Act, the minister must respond to the request in a set time period. The Impact Assessment Agency of Canada (IAAC), the body responsible for administering the Act, compiles information, mostly from the proponent, on a proposed development project to assist the minister with making a decision on whether or not to designate a project for review under the federal Act. The information collected is then placed in a federal public project registry, where the public has access to the information and is able to respond and provide additional information around issues of concern.
Under the IAA project scoping process, the proposed CWS silica sand mining project was also treated as two separate projects, but at least the federal authorities linked the processing facility and the extraction activities together for its decision-making purposes.
In November 2020, the minster made a decision not to designate the CWS for review under the IAA. This decision was supported with a report prepared by the IAAC.
The minister posted the following statement on the federal project registry, declaring the “Vivian Sand Extraction Project is unwarranted for the following reasons:”
There is limited information available to assess whether the Vivian Sand Extraction Project has the potential to cause adverse effects within federal jurisdiction or adverse direct or incidental effects. However, potential adverse effects within federal jurisdiction as understood based on this limited information are expected to be appropriately managed by existing legislative mechanisms…
In essence, both the federal minister and the IAAC failed to demand the information from CWS that would be needed to determine if their extraction activities posed any risk of adverse impacts within federal jurisdiction.
However, the official letter that What the Frack Manitoba received on November 16, 2020, from Minister Wilkinson on his designation decision was quite different than the decision posted on the federal public registry. It included the following:
The Impact Assessment Agency of Canada requires that CanWhite Sands provide all information related to the Vivian Sand Extraction Project and its potential effects, including the results of any ongoing studies, to the Agency as it becomes available. The Agency will advise the federal Minister of Environment and Climate Change should new information arise to suggest that the Project may lead to significant effects within federal jurisdiction. The Agency will further review new information with a view to determining if it warrants the Minister reconsider designating the Project.
Based on this phrasing, it would appear that the file on this project is not closed and that IAAC is still collecting information related to CWS extraction activities and any new information that CWS provides to the IAAC in relation to their extraction activities may in fact warrant a reconsideration of the possibility of designating the project for review under the IAA.
Citizens who are actively involved in monitoring this project have no way to obtain any new information that CWS provides to the IAAC, as the federal public registry on this project is now closed and no new information is being posted. This is another prime example of sharp dealings.
Apprehension of bias apparent by the regulators
The appearance of the apprehension of bias is a legal standard for disqualifying administrative decision-makers.
With respect to the CWS silica sand mining project, both the provincial and federal government administrators have clearly demonstrated an apprehension of bias in favour of the CWS.
In the case of the Government of Manitoba, the apprehension of bias in favour of CWS is baked right into the entire Manitoba Environment Act. Moreover, the 1988 Act itself is in dire need of a complete legislative overhaul to deal effectively with this apprehension of bias in favour of project proponents.
In the case of protecting citizens’ well water, there is a procedure under the Manitoba Groundwater and Well Act for submitting a formal complaint when violations occur.
In February 2021, several residents of southeastern Manitoba filed a formal complaint outlining a number of violations under this Act, as a result of CWS having undertaken advanced exploration activities in 2018-2019 to test their unconventional and unproven method of extracting silica sand.
They received a written response from the director of the Manitoba water branch in April which did not even confirm that what was sent to the director was a formal complaint under the Act. Further, the director noted:
Information supplied to the department by Can White Sands Corporation specifies that the water is returned to the sandstone and not the carbonate aquifer. It is the understanding of the department that some wells were constructed in such a manner (triple tube) as to monitor the water level in the carbonate aquifer during testing of the sandstone aquifer to ensure that the pumping from the sandstone does not negatively impact the carbonate aquifer.
Just imagine for a moment if a judge in a criminal proceeding asked a defendant if they were guilty or not of the crime of which they were accused, and the judge simply accepted the defendant’s claim of innocence without any further investigation. Happens all the time in the frac’ing oil, and gas industry.
This is exactly what occurred here. The director of the Manitoba water branch simply took CWS at its word that no violation under the Act had occurred and did not undertake an independent investigation to determine if CWS did or did not violate the provisions of the Act.
If this is not a clear apprehension of bias in favour of CWS, it’s hard to imagine what would be.
Under the federal IAA there is a regulatory list of physical activities, such that if a proposed project meets the threshold benchmarks, it would trigger an immediate review under the IAA. One of these automatic triggers for federal review is the construction and operation of a rail yard that occupies 50 or more hectares.
In early June, What the Frack Manitoba and others wrote the federal minister responsible for the IAA with verifiable evidence that the CWS rail yard, which would be used to store and load rail cars with processed silica sand to be shipped to market, was far larger than 50 hectares.
The following is a response by the president of the Impact Assessment Agency of Canada regarding the 50-hectare rail yard automatic trigger for assessment under the federal Impact Assessment Act:
With respect to total area of a railway yard under subsections 54(b) and 55 of the Physical Activities Regulations (the Regulations), the Agency interprets the total area of a railway yard to be the surface area of each of the components of the railway yard. Areas in between components of the railway yard, such as an area inside a rail loop, are not included in the calculation.
In short, the president of the federal Impact Assessment Agency of Canada, no doubt in consultation with the federal minister, arbitrarily ruled (“interprets” being the operative word) that the land inside CWS rail yard loop is not part of the rail yard. With this “interpretation,” the 50 hectare threshold that would trigger an automatic assessment under the Impact Assessment Act simply vanishes, as does the need for the federal government to review and assess the entire CWS proposed project for adverse cumulative impacts under the IAA.
This clearly demonstrates an apprehension of bias by the president of the IAAC in favour of CWS with a view to avoiding a federal assessment under the IAA.
If this interpretation is allowed to stand, then the Act should simply be renamed the “Impact Assessment Avoidance Act.”
Ignoring legislative requirements
Finally, there have been instances of outright illegal maneuvering by both levels of government that have allowed CWS to skirt their legal obligations with respect to its proposed development project.
In 2018-19 CWS began extracting silica sand to test their mining method before receiving any environmental licence from the province.
Under the Manitoba Mines and Minerals Act, any mining extraction activities in excess of 500 tonnes are considered advanced exploration activities. CWS exceeded this threshold, and under the provincial Act the company must file a mine closure plan and provide the province with a financial security to help fund the mine closure plan.
In 2020, What the Frack Manitoba wrote the provincial minister responsible asking why the company failed to provide the Government of Manitoba with this mine closure plan and accompanying financial security. They have yet to receive a response.
Under the Manitoba Mines and Minerals Act, the director of the mines branch is the administrator responsible for making sure that CWS submits its mine closure plan and provides a financial security for the company’s advanced exploration activities. Apparently the director of the mines branch failed in their legal and fiduciary duty and as a result the CWS mine closure plan will not be subject to public scrutiny and review under the Manitoba Environment Act.
As for the IAAC, there continues to be back and forth communication by email and phone between the federal agency and CWS about various aspects of the proposed development project, as a federal Freedom of Information request revealed. These behind the scenes dealings between the federal agency and the proponent, even before the public federal registry was closed on this project, constitute a violation of the Act.
Manitoba not-for-profit groups such as What the Frack Manitoba and Our Line in the Sand continue to do what they can to hold both levels of government accountable to ensure those living in southeastern Manitoba have access to clean drinking water. However, without legal assistance the task will be nearly impossible. What the Frack Manitoba is much further ahead without legal help. Lawyers (like my ex lawyers Murray Klippenstein and Cory Wanless) drag you along for years, take your money, lie to you, and can run with your files, contrary to the rules, at the worst possible time, anytime, without consequence except to harm you and your case. If you refrain from retaining lawyers, at least you know you are only being betrayed by the Manitoba and Canadian gov’ts, and not also by your lawyers – one of the worst betrayals there is. A terrible tragic impact (there are many) of frac’ing in Canada is that those harmed by it have no one to turn to for help, no one.
Citizens could consider a Canadian Human Rights complaint, but this would be another costly and time consuming pursuit with no guarantee of a positive outcome.
Even more frustrating is the very fact that much of this could have been avoided had either the provincial or the federal government done what is required of it and undertaken a fair, transparent and independent environmental review of the CWS development project, rather than doing everything in their power, legally and otherwise, to skirt their legislative responsibilities.
Don Sullivan is the former North American Coordinator for the Taiga Rescue Network, a one time special adviser to the Government of Manitoba, the recipient of the Queen’s Golden Jubilee medal and is currently a Research Associate with the Canadian Centre for Policy Alternatives-MB.
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