Decision on Private Prosecution Against Mount Polley Expected Any Day

Premier John Horgan said this week he’s anxiously awaiting a court decision on charges against Mount Polley mining corporation brought in a private prosecution by former Xat’sull chief Bev Sellars for violations of B.C.’s environmental laws — but B.C.’s role in that case is still unclear.

B.C.’s crown prosecution service is responsible for the final decision on whether and how B.C. will proceed with the case regarding the 2014 tailings pond collapse that released 24 million cubic metres of mining waste into Hazeltine Creek and Quesnel Lake, a source of drinking water.*

Sellars filed the case on August 4th, 2017 — the last day a case under provincial law could be brought against the company due to a three-year statute of limitations — as a means of holding open the legal door for government, which had only recently come under NDP power.

The courts are expected to make a decision on the fate of the private prosecution by the end of January.

“By filing a private prosecution on August 4th, I preserved the right to prosecute Mount Polley Mining Corporation for destroying the environment on which we all depend,” Sellars told DeSmog Canada in an e-mailed statement.

“I did so to uphold Canadian law, traditional law of the Xat’sull people, and for the sake of the next seven generations to come. I hope the province will do their part.”

At a press briefing on Tuesday, Horgan told DeSmog Canada the province is awaiting the court’s decision.

“I think all British Columbians were mortified that three years would pass with no consequences to the most horrific mine disaster in B.C. history,” the premier said. “I remain concerned and I am anxious to hear what the courts say,” he said, adding there is still time to press charges under federal laws.

The province still has the capacity to pursue charges under the Fisheries Act, which “have far greater penalties for non-compliance,” he said.

“What the province can and should do is fortify the regulatory framework which this industry is working within.” https://t.co/HsA8mRuRWx

— DeSmog Canada (@DeSmogCanada) January 17, 2018

“So this isn’t the end of justice or consequences for the failure,” he said.

Patrick Canning, counsel for Sellars, said the provincial Crown could still choose to take over the case or have the charges amended, adding the province’s ability to pursue provincial charges is still practically as open now as it was before the deadline of August 4, 2017.

The B.C. Conservation Officer Service is participating in an ongoing joint provincial-federal investigation into the Mount Polley disaster alongside the Department of Fisheries and Oceans and Environment Canada.

Canning said the B.C. Ministry of Environment could direct the findings of that investigation to the provincial Crown.

In an e-mailed statement to DeSmog Canada, B.C. Ministry of Environment spokesperson David Karn said, “While the statute of limitations for the Environmental Management Act may have passed, the investigation continues.”

“Be assured that both levels of government are committed to a thorough investigation within the timeframe of the federal statute of limitations.”

Karn suggested a “choice of charges would have to be made in any event,” suggesting government must select between provincial or federal laws.

Yet Canning said there is no legal basis for such a choice.

Sellars said as a grandmother her duty is to protect the environment for future generations.

“Indigenous people’s law stresses that you have to take care of the land for seven generations ahead,” she said.

“It’s not too late for the province to see that justice is done.”

Sonia Furstenau, environment critic for the BC Green party, told DeSmog Canada regardless of how the province chooses to treat violations of provincial or federal rules, government should take steps to rebuild public trust in B.C.’s regulatory regime.

“What the province can and should do is fortify the regulatory framework which this industry is working within.”

While one can acknowledge that mining plays an important role in B.C.,  given what we’ve seen with the Mount Polley mine, the situation in Shawnigan Lake and a similar issue now unfolding in Campbell River, it’s important to acknowledge a loss of public trust in industry and the government’s ability to regulate, Furstenau said.

“What I’d like to see from the premier is assurance that this industry can operate in a way we can trust, to demonstrate the environmental impacts won’t outweigh the benefits of the jobs and materials that are being produced in these mines.”

* This story has been updated to clarify that the decision on how to proceed with the Mount Polley case lies with B.C.’s Crown prosecution service.