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CROWN SEEKS TO DO AWAY WITH PRIVATE PROSECUTION IN WAKE OF MOUNT POLLY DISASTER
By Cori Marshall
Four months shy of the three-year anniversary of the Mount Polley Mine disaster, MiningWatch is heading into B.C. provincial court for the third time since October, in connection with a private prosecution related to the tailing pond mishap. This time the Federal Crown Prosecutor is moving to stay, or otherwise halt, the private prosecution. The pan-Canadian initiative will be arguing to present its evidence and continue the proceedings, and make public the names of 25,000 Canadians who have signed the petition that puts pressure on the "Trudeau government not to let those responsible off the hook for the biggest mining spill in Canada's history."
On August 4, 2014, a tailings pond dam breached, which allowed significant amounts of effluent to flow into Hazeltine Creek, Polley Lake, and Quesnel Lake. According to the summary published on the B.C. government website, "17 million cubic meters of water and 8 million cubic meters" of mining waste was deposited in the three bodies of water. The Independent Expert Engineering Investigation and Review Panel found the primary cause of the breach to be "dislocation of the embankment due to foundation failure."
A MiningWatch Canada backgrounder on the topic states that "the spill destroyed or affected over 2.6 million square meters of aquatic and riparian habitats over a 10-kilometre distance." The affected area is equivalent to 1,500 hockey rinks. Quesnel Lake is "one of the deepest lakes in the world, home to numerous species of fish and a source of drinking water for local communities."
Three years into the investigation, with evidence that aquatic wildlife and the water itself has been damaged, "to date no charges, no fines, and no sanctions [have been] brought forward by any level of government", confirmed Ugo Lapointe, Canada Program Coordinator for Mining Watch Canada. Lapointe added that the damage caused by the spill "is a clear violation of the fisheries act." The reasoning behind the private prosecution is to entice the "federal government to enforce its own laws."
The group claims that there were clear violations under the Fisheries Act sections 35.1 and 36.3. These sections deal with protection and pollution prevention, 35.1 states "no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery." For its part 36.3 states that "no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish".
Lapointe said there is evidence provided by the impact assessment reports on the incident that points to a "physical and chemical alteration in sediments." The mining watchdog claims that there are elevated levels of copper, iron, selenium, arsenic, vanadium, and manganese in the water and all of the contaminants "exceed provincial Sediment Quality Guidelines." The group also underlines that there have been "impacts on benthic invertebrates", which in aquatic ecosystems help to "sustain fish habitat."
There appears to be a basis for the claims that Mining Watch is making. According to Lapointe the reason the Crown is seeking to shelve the private prosecution is because "there is an ongoing investigation." The outcome of that investigation is very unclear.
Lapointe points to an opaque investigation process where no one knows "what is happening, [or if it] will ever be completed." The program coordinator said that the group would get behind the crown if it had intentions to lay charges in the wake of the investigation. As August 4 approaches one of the major concerns that Lapointe referenced is that "some of the charges that could be laid have a statute of limitations of three years."
Not only have private charges been brought in this matter there are other legal actions surrounding the spill. Lapointe said there are two First Nations that have brought forward a joint civil suit for "damages to traditional fisheries". Industrial Metals is suing the two engineering firms that were involved, who are in turn suing the corporation.
Imperial Metals evaded having to pay the full cost of the clean-up, in fact "British Columbians and Canadians have picked up [more than a third] of the tab." Lapointe claimed that the company has refused to clean up debris that has settled at the bottom of Quesnel Lake "due to the cost. “Imperial Metals Corp opened trading this morning a $6.06 CAD a share. The company's market cap, or market value, was at $584.26 million.
Lapointe feels that all Canadians should be aware of this situation. He continued by stating that government inaction "sets the wrong example" for the mining industry in this country. Lapointe said that government is sending the message "that if you mine in Canada and you [commit an environmental offence] nothing will happen to you."
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