Almost 30 months after 25-million cubic metres of contaminated sludge and water swept into lakes and creeks around the Mount Polley Mine, near Williams Lake, MiningWatch Canada has filed a private prosecution against the provincial government and Mount Polley Mining Corporation.
MiningWatch, supported by a coalition of environmental, First Nations and social justice organizations from Canada and Alaska, was forced to take action because the Crown has failed to lay charges and enforce the Fisheries Act despite ample evidence, said Ugo Lapointe, MiningWatch national program coordinator.
“We are all concerned that, almost 30 months later, despite clear evidence of impacts on waters, fish and fish habitat, no sanctions and no penalties have been brought forwards by any level of government,” Lapointe said.
The collapse of the Mount Polley tailings pond dam destroyed or permanently affected more than 2.6 million square metres of aquatic and riparian habitat, according to MiningWatch.
Mount Polley is a gold and copper mine operated by Mount Polley Mining Corporation, a subsidiary of Vancouver-based Imperial Metals. The company also owns Red Chris Mine near the B.C. border with Southeast Alaska and is exploring the possibility of opening two mines in Clayoquot Sound.
Mount Polley closed after the 2014 dam breach, but started full production again last year when it was given a clean bill of health by the province.
The MiningWatch charges were filed in Provincial Court in Williams Lake Tuesday, using a provision of the Criminal Code that allows citizens to start a private prosecution if they believe someone has committed an indictable offence.
The legislation is a valuable constitutional safeguard that provides for citizens to enforce federal laws, such as the Fisheries Act, to protect public resources, said MiningWatch lawyer Lilina Lisenko.
The same legislation was used by salmon farm activist Alexandra Morton in a case against Marine Harvest Canada, when the company pleaded guilty to illegal possession of wild salmon, and for an ongoing lawsuit by Marilyn Burgoon against Executive Fuel Flight Services after 33,000 litres of jet fuel spilled into Lemon Creek.
“The next step is to go through the process hearing and, if the court accepts the evidence, then they set up a trial date,” Lapointe said in an interview.
However, looking at the massive expense of taking the province and a mining corporation to court, Lapointe is hoping the case will be picked up by the Federal Crown.
“They can decide whether to take over the case or not,” he said.
MiningWatch lawyers will be arguing that Mount Polley Mining Corporation and the province failed to implement minimum safeguards, which led to the largest mine-waste spill in Canadian history and to violations of the Fisheries Act.
The province was aware that the tailings pond and dam were not constructed according to design, but the Ministry of Energy and Mines did not enforce the law or apply its own policies, says a MiningWatch background paper.
Last December B.C. Chief Inspector of Mines, Al Hoffman decided not to forward charges to Crown counsel over the collapse of the tailings pond dam.
At that time Hoffman said that the company had poor practices, but he could not find evidence of non-compliance with mining regulations.
Hoffman found a major cause of the dam failure was a weak glacial soil layer beneath the foundation of the dam and other factors included the slope of the pond’s embankment, inadequate water management and insufficient beaches.
Imperial Metals is suing two engineering firms for damages over the dam failure.
B.C.’s Auditor General Carol Bellringer found in a report released in May that provincial monitoring and inspections of mines were inadequate to ensure mine operators complied with requirements.
Another investigation into the Mount Polley disaster is being led by B.C.’s Conservation Officer Service with assistance from Environment Canada, the Department of Fisheries and Oceans and RCMP, but there is no indication whether charges will be laid.
Than investigation is ongoing, a spokesman for the B.C. Ministry of Environment said Tuesday.
A letter to MiningWatch lawyer Lilina Lysenko, written last month by Thomas Hlavac of Fisheries and Oceans, said investigators have served a number of search warrants to obtain evidence.
“That evidence is under examination by the investigators. Any charges supported (by) the evidence will be recommended to the Public Prosecution Service of Canada for their consideration and action,” Hlavac wrote.
Tara Scurr of Amnesty International Canada, one of the organizations supporting MiningWatch, said it is concerning that the mine has been granted a license to resume full operations when the Conservation Officer Service’s criminal investigation has not yet finished.
“While there is evidence of some impact on fish and fish habitat, many questions remain to be answered about long-term impacts and what role people affected by the spill will have in determining any remedies that are required,” Scurr said.
Bev Sellars, chair of the group First Nations Women Advocating for Responsible Mining and a councillor with the Xat’sull First Nation in Williams Lake, said there is no point in having laws if governments and industry are not held accountable when they are violated.
“The disaster that was the Mount Polley tailings pond collapse is not over for those of us who live and depend on the lands and waters and particularly on the salmon that have always sustained us,” she said.
“Nor is it over for those living in the shadows of other existing and planned mines across B.C. who are acutely aware of the government’s own panel of experts who reported we can expect to see two more such failures every decade,” she said.
Mount Polley Mining Corporation referred questions to Steve Robertson, Imperial Metals vice-president of corporate affairs, who did not respond to calls from DeSmog Canada Tuesday.