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TSILHQOT’IN NATIONAL GOVERNMENT 253 – 4

th Avenue North Williams Lake, BC V2G 4T4 Phone (250) 392-3918 Fax (250) 398-5798

March 16, 2013 Dr. Bill Ross, Dr. George Kupfer, Dr. Ron Smyth c/o Livain Michaud, Panel Manager Canadian Environmental Assessment Agency 160 Elgin Street, 22nd Floor Ottawa ON K1A 0H3

via email: NewProsperityReview@ceaa-acee.gc.ca

Dear Panel Chair and Panel Members: Re: Comments on Additional Information Submitted by the Proponent Thank you for the opportunity to comment on the sufficiency of the additional information submitted by the Proponent, in response to the Panel’s information requests. These comments are sent on behalf of the Tsilhqot’in Nation. We recognize that the Panel had no discretion in this matter under its Terms of Reference, but I must note from the outset that the 15 days provided for comment on such voluminous material clearly falls far short of the time that is actually required to conduct a meaningful review. This problem was compounded by the Proponent’s refusal to provide notice of when the materials would be submitted, as requested by the Panel. Because of this unreasonably short window for review, our comments focus on only a few of the many serious and, in our view, fatal deficiencies of this EIS. We are concerned that the Panel’s information requests (IRs), while numerous and extensive, captured only a small portion of the serious information gaps identified by the Tsilhqot’in Nation, other participants, and the government departments – which in itself speaks to the deeply flawed and incomplete work that the Proponent has submitted to date. The Proponent’s dismissive and superficial approach to the IRs that the Panel did make to the company only deepens our concern.

Introduction Based on the critical deficiencies found in the Proponent’s EIS, and the subsequent submissions from the Proponent in response to the Panel’s IRs, TNG is not optimistic that yet another round of IRs asking the company to properly answer the first round of IRs will be helpful. Despite this, there are a few critical information deficiencies that cannot allowed to stand without comment before moving to a public hearing.

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Accordingly, we have tailored this submission to focus on these critical deficiencies, with the hopes that the Panel will compel the Proponent to provide complete, substantive answers. The specific requests below (numbered) are all consistent with the requirements set out in the EIS Guidelines, and all fall under our original information requests and the subsequent IRs issued by the Panel. Where possible, we have made it clear which of the December 2012 IRs the deficiency is related to. The context to our lack of optimism here is that Proponent's responses to the Panel’s IRs present a troubling pattern of evading the substantive content of these IRs.

There is a pronounced pattern throughout of justifying reliance on existing information in the EIS rather than undertaking new data collection or analyses as requested by the Panel (and reviewers) or, alternatively, of deferring answering the tough questions until the detailed design phase. In other cases, the Proponent simply refuses to provide critical information requested by the Panel with a questionable rationale provided to justify the refusal. There are many examples of this. One notable example of a 'non-answer' is the response to IR #49. The Panel asked the Proponent to describe its adaptive management programs in some detail, including the requisite thresholds and implementation activities that would be carried out. Additionally, the Panel asked for case study examples to show how the Proponent's adaptive management proposals have worked elsewhere.

The response to this critical component of the project's safe management trivializes the issue. The Proponent simply lists an array of potential mitigation measures already identified in the EIS for each affected VEC, and proposes a few more contingent (but unevaluated and speculative) measures that might be useful. There is no substantive discussion about adaptive management, there is no description of thresholds or implementation activities, and there is no useful performance-based information from the case studies listed as examples of adaptive management. There is nothing in this response that is helpful to the Panel's assessment of whether the Proponent has viable adaptive management responses in hand for events that might arise as the mine proceeds. All this, the Proponent says, is to come in the detailed design phase.

Deferral is the standard response by the company for other tough but critical questions such as a reliable characterization of site hydrogeology, particularly for the pit-Fish Lake zone and the foundation of the TSF. This is simply not good enough. The Proponent's entire justification for this proposal is its assertion that it can preserve Fish Lake in perpetuity. The burden of proof is on the Proponent to prove it can preserve Fish Lake to the Panel with a high degree of certainty – there is no room for wide-ranging speculation about critical site conditions. The Panel (and the intervenors) require the substantive evidence now, not after EA approval.

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We ask that you hold the Proponent accountable for the information that it is bound to provide under the EIS Guidelines, and that you have directly requested from the Proponent.

Site Investigation - Reduction in 2011 Work Program As the Panel noted in this IR #3:

Resulting from a Supreme Court of British Columbia injunction awarded to the Tsilhqot’in National Government in December 2011, a number of exploration drill holes and test pit sites for the proposed 2011 program were not carried out. This resulted in several of the proposed test pit sites being removed from the program as well as several test pit sites being relocated within the project area.

The Panel asked the Proponent to explain “how the limitations of the proposed 2011 work program identified by Knight-Piésold affect the quality and quantity of the geotechnical data”. The Proponent, in response, advises the Panel that the substantial number of test pits removed from the 2011 work program were not actually required for environmental assessment:

Test pits that were excluded from the proposed site investigation were originally specified to confirm and delineate potential borrow pits to optimize the cost of construction of the initial tailings storage facility (TSF). The main impact of this modification to the site investigation program was an inability to confirm potential cost savings associated with this construction. Sufficient construction material for TSF construction is located within the open pit.

The Tsilhqot’in Nation has a few comments in response. First, the Proponent’s response to the Panel is a complete reversal of the position that the Proponent took before the B.C. Supreme Court, when it was seeking an injunction to allow the full 2011 work program to proceed. At that time, Scott Jones, the company’s Vice-President of Engineering, swore an affidavit stating that the primary purpose of this information was to inform the federal and provincial environmental assessments, and was thus urgently needed:

The work Taseko is currently intending to undertake to its permits is primarily intended to inform the provincial and federal environmental assessments … In particular, the information that is now being sought is to assist in assessing the impacts of the changes to the project that were made to preserve Fish Lake.1

1 Affidavit of Scott Jones, para. 22 (underscore added) [excerpt attached in Appendix A]. See also, paras. 42, 47.

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In argument and written submissions, the Proponent’s legal counsel also emphasized environmental assessment as the primary purpose for the full exploration program, with the exception of 10 diamond drill holes:

Taseko is currently conducting work primarily intended to inform the federal environmental assessment for New Prosperity …

… The majority of the activities are for the purpose of providing information for the federal environmental assessment process under way. Some limited work (10 diamond drill holes) is for other purposes, but is also important to Taseko and is very limited in nature …2

The Proponent now appears to concede that, in fact, much of the work was not required for environmental assessment, but rather “to confirm potential cost savings associated with this construction” of the project. This is a drastically different story than was presented to the B.C. Supreme Court, when the Proponent was seeking an injunction to proceed with the full exploration program on the grounds this work was urgently needed for the primary purpose of informing the federal environmental assessment. From our perspective, this once again raises serious concerns about the Proponent’s credibility, when the company appears to drastically change or even reverse its position to advance its immediate goals. This is a pattern that the Tsilhqot’in Nation has observed repeatedly with this company. Finally, and critically, it must be emphasized that at no point in the 2011 work program – or at any other time – has the company applied to carry out the test drilling and pump tests adjacent to Fish Lake required to better characterize hydraulic conductivities in the area. As the Panel notes in IR #10, both NRCan and the Proponent's own consultant (BGC) have recommended site investigations of this nature. To be clear, the Proponent did not apply to conduct such site investigations as part of the 2011 work program, or at any other time. Further, the Tsilhqot’in Nation has never objected to the Proponent carrying out site investigations of this nature. We want to be absolutely clear that the decision not to carry out the critical test drilling needed to understand site conditions and the potential impacts of the Project was and remains a decision of the Proponent alone. The critical uncertainties created by the Proponent’s unwillingness to conduct the recommended site investigations are explored further below.

2 Submissions of the Respondent, paras. 13, 16 [excerpts attached in Appendix A].

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Closure Cost Estimates A glaring deficiency in the information to date is any meaningful estimate of the costs of mine reclamation and closure. The EIS Guidelines directed the Proponent to include details of a conceptual decommissioning, reclamation and closure plan for the components of the Project that have changed or are new, consistent with the Health, Safety and Reclamation Code for Mines in British Columbia. (emphasis added) The Code requires an estimate of the total expected costs over the planned life of the mine, including the costs of long-term monitoring and maintenance (Part 10.1.4(8)).

The proposal to maintain Fish Lake in perpetuity is fraught with complex engineering and ecological uncertainties and challenges, all of which could easily translate over time into overwhelming costs that could strain the economic feasibility of the project.

In our view, the Panel requires sufficient information about the overall nature and costs of the reclamation, long-term monitoring and maintenance measures that will be required to meet the Fish Lake sustainability objective, in order to make a sound determination on the project's acceptability.

1. The Proponent is requested to provide a detailed estimate of the expected closure and post-closure costs commensurate with the specifications of the Health, Safety and Reclamation Code and with the Panel's need to properly evaluate the likely efficacy of the Proponent's closure plans.

Pit - Fish Lake Interactions

The Panel's IR#2 concerned potential geotechnical and hydrogeological conditions of the pit wall. The Proponent’s response only partially answers parts (i) and (iii), and provides no answer to (ii) (potential need for flattening). Despite the information presented in the Panel's rationale concerning the experience of most large open pits undergoing pit wall flattening during operations to stabilize pit walls, the Proponent states that “there is no evidence to suggest flattening will be required” and, further, “flattening beyond this (50) is very unlikely given the nature of the hard rock mass”. No evidence for these positions is provided. The 50 value adopted by the Proponent to conduct the sensitivity analysis is not rationalized here. The Proponent's sensitivity analysis reports that rock and overburden permeabilities were increased by 10x with no significant increase in seepage flows from Fish Lake to the pit. Permeabilities, assumptions, model parameters, and confidence limits of the model are also not provided. This deficiency renders it impossible to evaluate the modeling undertaken.

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More importantly, the Panel's IR requested that the analysis go beyond simply providing results to evaluating the potential geotechnical, slope stability and hydrogeological conditions that could result in the need for slope flattening. The requested evaluation has not been provided.

2. The Proponent is requested to supply an evaluation of potential geotechnical, slope stability and hydrogeological conditions, as asked for by the Panel.

3. Also required are the SEEP/W model assumptions, input data and sensitivity analysis results, including data ranges and rationale for these ranges, along with the predicted potential ranges in flows and lateral extent of water level drawdown (shown in IR#2 Response Figures 2A-2 through 2A-5). This information is required to compare with geologic and hydrogeologic data provided in responses to IR#10 and #11 for evaluating seepage estimate accuracy.

4. In the absence of a justification for the 50 scenario previously selected, the inclusion of a “worst-case” scenario with an increased or maximum possible pit wall layback should be provided.

Pit Induced Drawdown of Fish Lake IR #10a bears on a fundamental issue for the New Prosperity project's overarching environmental goal of preserving Fish Lake as functioning ecosystem in perpetuity. The risk being explored here by the Panel is the potential for significant flows of lake water into the open pit during operations. This question is critical to the sustainability determination that has to be made for this project. The EIS Guidelines recognized the importance of a robust hydrogeologic assessment for the site, and required the use of “recent site-specific data for all modeling undertaken” (emphasis added) to support the analyses and assessments identified for proper understanding of the groundwater systems on the property. Despite the guidance, the resulting EIS was deficient in that no new hydrogeological data had been collected and used in the assessment. The Proponent had the appropriate drilling equipment in the field in 2012 to collect the required data, but did not do so, focusing instead on acquiring geotechnical information for its detailed engineering planning of the TSF embankment. The Panel subsequently highlighted the data deficiency, and noted that both the Proponent's consultant and NRCan had previously recommended that the Proponent undertake further site investigations adjacent to Fish Lake to better characterize local hydraulic conductivities and to improve confidence in predictions of dewatering effects. The Panel noted that “it is critical to have better data and understanding of the groundwater connection and the groundwater flow system' adjacent to Fish Lake” (emphasis added).

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The Panel's IR #10a explicitly required the Proponent to use existing (but previously discounted) data, as well as any new data to support the sensitivity analysis. The Proponent's response to IR #10a failed to deliver the requested information, as follows:

no new data were obtained and utilized in the analyses;

the 1994 testing program data were not included in the analyses, despite the Panel’s direct request;

while measured hydraulic conductivities for all water-bearing units on the site range considerably, over several orders of magnitude, the sensitivity analysis increased the mean conductivities by only 0.5 order of magnitude; and,

no sensitivity analyses were run using the maximum measured conductivities.

5. With better data and a more credible modeling exercise to make predictions about the dewatering impacts to Fish Lake, the Proponent should complete sensitivity analyses of groundwater flows and effects on Fish Lake using the observed minimum and maximum conductivity values for each hydrostratigraphic unit (using all existing and new data, including the 1994 test values) to provide a possible range in flows and effects on Fish Lake.

6. Where/if the Proponent selects a mean flow and effects as representative of the site, a justification for this selection should be provided.

1994 Pump Tests

As noted in IR #10, the 1994 pumping test was the only aquifer test conducted at the proposed mine site since the project inception, and as such, these data should be utilized to the greatest extent possible. A rationale for why the 1994 pump data were not relied upon was provided in IR #10b response, as requested by the Panel. However, the response raises more questions than it answers. The explanation does not account for a number of aspects of hydrogeological characterization, pumping test analysis and usability of test data applicable to the current situation that should have been provided with the rationale. These include:

the relevance and applicability of using bulk overburden and shallow bedrock conductivities measured in the tests to support estimates of groundwater flow in overburden between Fish Lake and the open pit, and the effects of pit dewatering on Fish Lake elevations;

evaluation of other potential causes for the observed variation in pumping water levels during the tests;

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water level recovery data from the pumping and observation wells could have been used to provide useful estimates of bulk hydraulic conductivity without the problems inherent in interpreting drawdown data; and,

analytical methods that can accommodate variable pumping rates are available, and the data should have been analyzed using these methods.

Additionally, the statement that “In BGC’s experience, it’s unusual for hydraulic conductivity results from pumping tests to be substantially different than results from packer and slug tests in the same hydrogeologic units” is not consistent with TNG's expert advice about the differences between these two test types. Our advice is that packer and slug tests provide only limited, short term and very local hydraulic data, can be highly influenced by hole condition and test procedures, and should not be reliably substituted for pumping well tests. In addition, packer and slug tests do not provide other and equally important information regarding unit hydrogeologic properties such as storage coefficient and time-distance drawdown relationships. The following additional information is requested to support the Proponent's rationale for not using the 1994 pump test results:

7. All data for both 1994 tests including field notes, geologic logs and well construction diagrams for the pumping and observation wells, and pumping and recovery water level data in the pumping well and observation wells.

8. Maps illustrating the locations where all hydraulic conductivity data have been collected on the site.

9. In particular, Figure 10B-2 should be upgraded to also illustrate the K values for all other overburden sediments shown in Figure 8.7 in the Baseline Groundwater Hydrology Assessment (document 2-6-1-4D-A), especially those data located between Fish Lake and the proposed open pit.

10. Provide the data and rationale for the BGC contention that test results from pump wells 'do not usually differ substantially' from packer and slug tests. The rationale for why these methods should be considered as acceptable substitutes for hydraulic characteristics obtained from long-term pumping tests should also be provided.

Fish Lake Water Levels The requested additional 3D numerical modeling to better assess the amount of recharge needed to maintain pre-mine water levels in Fish Lake (IR#11a) was not conducted. The Proponent argues instead that the 3D numerical modeling procedures and results provided in the 2012 Preliminary Pit Slope Design Report are accurate and reasonable, therefore additional numerical modeling was not conducted.

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The Proponent's finding that open pit dewatering will not significantly affect water levels in Fish Lake is based on the apparent dominance of surface flows over groundwater flows in and beneath the lake, and the low permeability of lake bottom and underlying sediments. However, the Proponent has provided no data to meaningfully characterize the lake bottom and underlying sediments. The 3D model results reported in BGC’s 2012 Numerical Hydrogeological Analysis states that dewatering of the open pit and resulting cone of depression in the water table is expected to extend beyond the Fish Creek Watershed, which means it will extend beneath Fish Lake. However, Figure 5.2 in the 2012 KP Preliminary Pit Slope Design report shows the cone of depression only extending to the north edge of Fish Lake, apparently set as a constant head source. There is significant uncertainty from not completing the requested analysis, and from the Proponent's assumptions about the hydrogeologic character of the sediments and rock units beneath the lake. Induced seepage effects and drawdown of lake water levels could be substantially greater than believed by the Proponent, placing the viability of Fish Lake as a sustainable aquatic ecosystem in jeopardy.

11. With the objective of producing a more realistic assessment of potential drawdown in Fish Lake caused by open pit dewatering, the Proponent should be requested to undertake the modeling requested by the Panel where the model’s constant head boundary or no-flow head boundary extends further to the southeast beyond the lake.

12. The apparently conflicting estimates of water level drawdown extent from open pit dewatering prepared by consultants Knight Piesold and BGC should be reconciled and the potential for induced drawdown in Fish Lake based on potentially significant water table reductions beneath the lake should be reviewed.

13. The Proponent is requested to provide the data and analyses which supports use of the 10m2/day river bed conductance value for the lake bottom and underlying sediments, and how modifying this value under a sensitivity analysis would affect estimates of drawdown in Fish Lake. This information is needed to fully understand one of the primary project water balance concepts, which is that very little induced seepage from the lake into underlying sediments will occur during pit dewatering. The sensitivity analyses are needed to understand how uncertainty or variability in lake bottom conductance values will affect estimated seepage rates.

IR #11b was not answered. The Proponent contends that the Panel's request to conduct refined modeling is not warranted as their initial simplification of hydrogeology between Fish Lake and the open pit and model results using this simplified stratigraphy and hydrogeology remain valid.

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The 2D modeling conducted by KP for sediments and rocks between Fish Lake and the open pit was based on the lake as a constant source and using a simplified hydrostratigraphic column, which included consideration of flows through rocks above the ‘gypsum line’. The simplified stratigraphy does not incorporate stratigraphic and hydrogeologic information between the lake and the open pit identified during the 1994 test and observation well drilling, and as confirmed by the 1994 testing program. In contrast, the 3D modeling was conducted at a “watershed” scale and therefore a still more simplified hydrostratigraphic column was used. This simplified hydrogeology appears to not consider flow through rocks above the ‘gypsum line’ and also does not include potential flow pathways encountered during the 1994 test and observation well drilling, and as confirmed by the 1994 testing program. In 2009 BGC conducted a review of bedrock above and below the ‘gypsum line’ and decided that there was no significant difference in hydraulic properties between the two units. However, KP characterized rocks above and below the ‘gypsum line” with different hydraulic properties. This discrepancy needs to be reconciled.

14. The Proponent should be requested to provide a detailed table which presents the actual stratigraphy for overburden and bedrock between Fish Lake and the open pit, the simplified stratigraphy used in the 2D and 3D models, model input values with sources of data, assumptions and results of the 2D and 3D models for flows between Fish Lake and the open pit.

This information is needed to compare the actual complex overburden and bedrock stratigraphy with the simplified stratigraphy used in the models, assess the accuracy of the simplified stratigraphy to represent actual subsurface conditions, and to assess the capability of the models to make accurate predictions.

15. The Proponent is requested to provide detailed lateral and longitudinal hydrogeologic cross-sections which extend between the open pit and Fish Lake that illustrate the stratigraphic column and potential groundwater flow pathways. These cross sections should include the proposed open pit outline and all geologic units and unit hydraulic properties based on data from all drilling and testing conducted in this area.

16. The Proponent is requested to provide a table of K values for rocks above and below the ‘gypsum line’, the sources of these values, a map which shows the data point locations and the rationale for BCG's contention that there is no significant difference in hydraulic properties of rock above and below this line, a position not apparently shared by the Proponent's other consultant, Knight Piesold, which used different properties for rocks above and below this line in their analysis. As rocks above the gypsum line may serve as a preferential flow pathway for induced seepage from Fish Lake towards the open pit, understanding the hydraulic characteristics of these rocks and incorporating them accurately into the models is important.

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TSF Seepage Mitigation

Although information regarding the basis for the Proponent’s estimate of seepage control measures is provided in response to IR#14, no information is presented about how overburden heterogeneities will be identified and groundwater flow through preferential pathways will be characterized. The Proponent states that the necessary additional studies will be conducted “as the project progresses”. The Proponent also takes the view that the potential for preferential groundwater pathways “is a risk that can be managed”, and that “additional mitigation measures may be implemented” in the event that seepage control needs to enhanced. As noted above, flows through TSF embankments and underlying sediments are based on 2D and 3D models which employ simplified stratigraphy and hydrogeology. These models do not account for overburden heterogeneity and it is reasonable to assume that this heterogeneity may significantly affect seepage flow volume and flow pathways. Insufficient information has been presented to document the lateral extent, thickness and characteristics of the underlying till sediments. The Proponent's response indicates that investigations to identify and understand currently unknown groundwater flow pathways will only occur after contamination has been detected in the receiving environment. This requirement would necessitate not only a groundwater monitoring program suitable for detecting migrating seepage through heterogeneous flow pathways, but also implementing a “catch up” method to capture seepage in groundwater. There is no evidence provided by the Proponent that its existing hydrogeological data (from boreholes and testpits) provides a representative picture of the site groundwater systems. For much of the interpretative work on hydrogeological conditions in key areas (such as the TSF foundation, and downgradient regimes to the west and south of the TSF), data have been extrapolated from other locations. The Proponent refers frequently to “standard industry practices” to justify its data quality in various analyses and modeling work, but it needs to be said that the case in hand is relatively unique in the industry. The very close proximity of Fish Lake to the operations, and the overarching goal of maintaining the lake as a functioning ecosystem, are anomalous in the industry and impose huge constraints on the allowable levels of confidence in the assessments. The burden of proving that its proposed mitigation and management techniques will work in such a constrained situation rests with the Proponent. Yet the Proponent maintains the position that it can deal with all environmental risks as they arise, and that the techniques are effective and conventionally accepted, and nothing more is required at this stage to demonstrate the environmental viability of its project.

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17. Using a more robust dataset, a more detailed analysis of potential groundwater flow pathways needs to be developed to more accurately understand the potential for contaminants to migrate downslope towards Fish Lake, and into the Beece Creek-Taseko River watersheds.

18. The Proponent should be requested to provide details of the proposed “additional mitigation measures”, including the type, location and management of these measures, their demonstrated effectiveness, and how it will be determined when and where they may be needed.

Seepage Recovery Efficiencies

The risk in not having a reliable assessment of the design and efficiencies of various mitigation measures for TSF seepage control is that seepage may not be effectively captured by the proposed measures, resulting in contamination of downgradient aquatic resources such Fish Lake and the Beece Creek watershed. This would become crucially important during the closure and post-closure phases. According to Knight Piesold's 2012 Water Management Report, seepage capture and depressurization wells in the embankments would be operated permanently. There is significant risk that after the mine is closed that these wells would not be effectively operated or maintained in perpetuity. The seepage analysis needs to include this reasonable prediction situation. This is the reason behind the Panel's IR#14b that evidence be provided through further analysis to support the Proponent's estimates of seepage recovery efficiencies for the various mitigation measures proposed for TSF seepage. (emphasis added) The Proponent did not conduct the further analysis requested, instead taking the position that additional studies would be conducted during the detailed design phase to refine the seepage estimates. The response merely reviews some of the details of previous modeling to justify the Proponent's existing estimates. Further, the response does not include any information regarding the applicability and similarity of the proposed seepage recovery well locations and designs (referred to as drain boundaries) to the actual stratigraphy and hydrogeologic conditions at each location, which limits confidence in BGC’s prediction of their effectiveness.

19. Using the site-specific data requested downgradient of the TSF, the Proponent should then use all available data to provide a detailed comparison of stratigraphy and hydrostratigraphic units downgradient of, and within, the TSF and the parameters used in the model to more accurately estimate the number, location and depth of the drains, and the hydraulic conductivity assigned to the drains. This

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information is needed to verify that the model drains adequately represent actual hydrogeologic conditions downgradient of the TSF.

20. Rerun the model to identify the number of drains, their locations and depths needed to capture all potential groundwater seepage, not just most of it as stated in the BGC report. This information is required to identify the number of additional wells, different well designs and/or detailed conductivity data needed to design and locate wells to capture all seepage, not just most of it.

21. An analysis should also be conducted to predict the potential impacts on seepage discharge rates and flow pathways from the TSF should the embankment depressurization wells become less effective or cease operating at some future date (especially post-closure).

The Proponent's response to IR #14d(iv) states that recovery wells may be located along the south embankment should circumstances require them.

22. The Proponent should provide the circumstances and criteria under which these wells will be installed, their locations, designs, timing of installation, expected flow rates, and expected seepage capture success.

Fish Lake Ecological Integrity

Given the high levels of uncertainty about the Proponent’s ability to recover the fugitive seepage from the TSF, and the highly complex and uncertain water recycling plan, there remains a substantial and grave risk that the ecological integrity of the Fish Lake ecosystem would be significantly impacted in a potentially immitigable manner. The Proponent has responded to the IRs related to this issue (e.g. IR’s #10, 18, 19, 23, 25, etc.), but has not adequately answered them. We strongly disagree with their assessments and do not believe the company has adequately studied the system to understand or address the complexities of how it would change as a result of alterations in nutrient loading, lake water levels, and tailings seepage. Specifically, for IR#25, we disagree with the Proponent’s assessment that it is unable to give specifics regarding mitigation measures at this time. This is a fundamental issue at the very core of its burden of proof.

23. The Proponent should be required to provide a detailed response matrix demonstrating the thresholds, mitigations and contingency plans that they intend to use to determine appropriate mitigation action based on a range of conditions that they may observe.

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Pit Water Quality The response to IR#15c states that the pH of the open pit will be 7 to 8. The response cites Appendix 2-7-2-1-I.5 as the best source for this information. A review of Appendix 2-7-2-1-I.5 shows there are no graphs with pit pH shown, nor is pH apparently included anywhere in the Appendix. The response to this part of the IR is not adequate for an assessment.

24. The Proponent should explain how the range of pH 7 to 8 was estimated for the open pit for all closure phases, and how the predicted pH range was developed for collected TSF seepage water.

Human Health, Country Foods & Soil Metal Concentrations

The Proponent is using screening level guidelines to avoid having to conduct a detailed site specific risk assessment (SSRA) of the mine. The CCME guidelines are inappropriate for several reasons which have been documented in our previous sufficiency submission (Nov 2012) and since they are based on certain tendencies of the general public, they are not necessarily protective of the local Tsilhqot’in communities. SSRAs in other jurisdictions have used higher soil ingestion rates for First Nations or other populations that may have enhanced exposure (e.g. 330 mg/day is used for construction workers or military in theater). The SSRA should take into account that there will be enrichment in the exposed soils at the mine in smaller particle sizes and in turn enhanced exposure from the smaller particles sizes and a concentration enrichment of metals in the soils that would be ingested. The SSRA needs to look at all pathways and the total body burden of local populations. This is particularly important given that some metals (e.g. As) are already high in the soils. The SSRA should also take a more holistic view of exposure pathways that include uptake via Tsilhqot’in traditional foods (using more appropriate consumption levels) and from soil adhering to traditionally prepared and preserved food. For example, in IR# 44, the Proponent has only addressed uptake via what the animal ingested and absorbed into its system. Further, the ratio of “before and after” is meaningless. It is the total body burden that will determine the risk and potential adverse effects. The Proponent also failed to address the effect of increased potential for exposure by opening up vast areas of land, increased Aeolian transport of soils, and reduction of particle size on increased soil ingestion.

25. The Proponent should be instructed to conduct a site-specific risk assessment using higher bound consumption rates, additional and increased exposure pathways, and increased ingestion of soils.

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Fish Lake Access & Impacts on Traditional Use The Proponent’s responses to IR#40 and IR#47 present an exceedingly bleak picture for Fish Lake (Teztan Biny): as confirmed by the Proponent itself, it would be mandatory for users of the area to report to mine personnel and access the Teztan Biny area through the mine site, where they would experience industrial noise from mine operations, regular blasting (which “may temporarily disturb local wildlife and therefore hunting opportunities”) and a 1 km no hunting zone which encompasses much of the lake area. The mine operations would be visible from Teztan Biny and campers in the area would see lights from the mine site. Nonetheless, in IR #40 and IR #47, the Proponent describes these impacts on the Tsilhqot’in people as “minimal” and “minor”. This represents a staggering refusal to confront the actual impacts of the proposed project on the Tsilhqot’in people. The company’s assessment (based on nothing more than unattributed opinion) directly contradicts the clear findings of the previous Panel, the conclusions of Ms. English (the company’s own consultant), and the overwhelming weight of testimony from the previous hearing, not to mention common sense. We appreciate the Panel’s efforts to obtain better information about the proposed project’s impacts on Tsilhqot’in traditional use. However, no amount of IRs will elicit from this Proponent the slightest acknowledgment of the impacts its project would have on Tsilhqot’in culture and use in this critically important region. Every response denies, minimizes and trivializes impacts on the Tsilhqot’in people that are clearly significant and immitigable, as found by the previous Panel. The Proponent has elected to proceed in a state of denial about project impacts, but it is clear from its responses to IR #40 and #47 that it has not addressed the devastating cultural impacts described by the previous Panel for the Tsilhqot’in people.

Little Fish Lake In response to IR #21, the Proponent maintains its position that it is “unlikely that Little Fish Lake supported/supports a sustainable, perennial fisheries of any type” and that there is “no fishery value associated with Little Fish Lake”. As the Panel noted in IR #21, this contradicts the direct testimony of Tsilhqot’in members in the previous Panel hearings. Indeed, the Proponent’s position contradicts the only study that it had prepared on cultural use of the area, by Ms. English, which documented multigenerational use of Little Fish Lake as a Tsilhqot’in fishery.3

3 Ehrhart-English, Cindy L., Harmony Human and Environmental Studies Ltd. April 7, 1994. The Heritage

Significance of the Fish Lake Study Area: Ethnography, 2009 EIS, Appendix 8-2-B, pp. 67-69.

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Again, this simply demonstrates the extent to which the Proponent is prepared to ignore or dismiss clear evidence to the contrary to support its conclusion that the destruction of the Little Fish Lake environs – described by its own consultant, Ms. English, as an area of profound cultural, historical and spiritual value to the Tsilhqot’in – would be insignificant for the Tsilhqot’in. Tsilhqot’in members intend to present the Panel with direct evidence on this matter at the Panel’s hearings. In the meantime, we direct the Panel to the submission of Marilyn Baptiste for some pictures and descriptions of Tsilhqot’in members fishing at Yanah Biny (Little Fish Lake).

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Thank you for considering these comments. Sincerely,

cc. TNG Chiefs

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APPENDIX A EXCERPTS FROM COURT DOCUMENTS FILED BY PROPONENT

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