The Law Suit
On October 18, 2016, MiningWatch Canada filed a private prosecution against the B.C. government and the Mount Polley Mining Corporation for violations of the federal Fisheries Act in connection with the 2014 tailings pond disaster—the largest mine waste disaster in Canadian history.
MiningWatch claims that the massive 2014 spill was caused by the negligence of both the Province of B.C. and the Mount Polley Mining Corporation (MPMC), owned by Imperial Metals. As such, MPMC and the Province of B.C. are being charged for violating sections 35(1) and 36(3) the Fisheries Act, which prohibit ‘serious harm to fish’ and the deposit of ‘deleterious substances’ into fish-bearing waters that sustain commercial, recreational or aboriginal fisheries.
On August 4 2014, Mount Polley Mine’s tailings dam collapsed and sent up to 25 million cubic metres (10 000 Olympic-size pools) of wastewater and mine waste solids into downstream waters, destroying or affecting over 2 612 470 m2 of aquatic and riparian habitats—equivalent to about 500 football fields or 1500 ice hockey rinks.
Impact assessment reports of the spill commissioned by BC’s Ministry of Environment and MPMC indicate strong evidence of an impact to sediments, both physically and chemically, within Hazeltine Creek, Polley Lake and Quesnel Lake.
Chemical impacts are most evident in elevated copper, but also in concentrations of iron, selenium, arsenic, vanadium, manganese, and other contaminants. In some instances, concentrations consistently exceeded provincial Sediment Quality Guidelines (and above background levels).
The National Pollutant Release Inventory (NPRI) reports that the Mount Polley Mine represented the largest emitter of copper, arsenic and manganese in Canadian waters in 2014 due to the tailings spill.
Studies also indicated effects to benthic invertebrates, which are also protected under the Fisheries Act. Effects are ranging from an absence of organisms, lower density and taxon richness, and limited differences in community composition.
MiningWatch is taking action now because it is concerned that, almost two and a half years after the disaster, governments have failed to lay charges and enforce the law, despite clear and ample evidence to justify proceeding. MiningWatch fears that this sends the wrong signal to the industry across the country and undermines public confidence in the capacity of our regulatory system to work effectively to protect our environment.
Under specific provisions of the Canadian Criminal Code and the Fisheries Act, any citizen can initiate a private prosecution if he or she believes, on reasonable grounds, that a person has committed an indictable offence. In order words, the legislation specifically provides an incentive for private persons to enforce federal laws like the Fisheries Act in order to ensure the protection of public resources, such fish and fish habitat, even if against the Federal or Provincial Crown. As stated in the Public Prosecution Service of Canada Deskbook, private prosecutions are “a valuable constitutional safeguard against inertia or partiality on the part of authorities.”
While MiningWatch is prepared to carry the case to full trial if necessary, it also recognizes that the cost and expense associated with prosecuting a case against a mining corporation and the Provincial Government can be immense. For this reason, it will be asking for the Federal Crown to carry the prosecution forward. If Canada’s unique environmental values and waters are to be fully protected, it can only occur if the government stands against violations of its own laws and uses all the means and resources it has at its disposal to do so.
This legal action is supported by multiple local, provincial, and national organizations, including West Coast Environmental Law-Environmental Dispute Resolution Fund (main funder), Amnesty International Canada, Sierra Club BC, Wilderness Committee, First Nations Women Advocating for Responsible Mining, Concerned Citizens of Quesnel Lake, Quesnel River Watershed Alliance, Fair Mining Collaborative, Rivers Without Borders, British Columbia Environmental Network, Clayoquot Action, Forest Protection Allies, Kamloops Area Preservation Association, Kamloops Physicians for the Environment Society, Alaska Clean Water Advocacy.