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In the largest penalty ever issued for Fisheries Act offences, Teck Coal Limited was fined $60 million by the Provincial Court of British Columbia Friday for polluting waterways in the Elk Valley, where the company operates metallurgical coal mines.
Teck Coal, a subsidiary of Teck Resources, pleaded guilty to two charges related to selenium and calcite pollution released from its Fording River and Greenhills mines over the course of 2012. Crown prosecutors have agreed not to pursue charges related to releases of the same contaminants between 2013 and 2019.
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Associate Chief Judge Paul Dohm said he is “satisfied the penalties imposed are a significant deterrent to Teck Coal.”
In a statement, Ktunaxa Nation Council said “there have been significant impacts to wuʔu (the water) in Qukin ʔamaʔkis (Elk Valley) due to coal mining, and those impacts continue to grow today with Teck Coal Limited’s operations.”
“This case, the charges laid, and the fines assessed, are steps in acknowledging the harm that has been and continues to be done to ʔamak ȼ wuʔu (the land and water) by development impacts done without Ktunaxa consent,” the statement reads.
In an open letter, Teck CEO Don Lindsay said, “We sincerely apologize and take responsibility for the impacts of these discharges. Everyone at Teck is committed to responsible mining that protects the environment.”
“You have my commitment that we will not waver in our focus on addressing this challenge and working to ensure that the environment is protected for today and for future generations,” he said.
Lars Sander-Green, mining lead with the Kootenay-based conservation organization Wildsight, raised concerns however that when compared to Teck’s revenue from coal — more than $4.5 billion in 2012 alone — the fine may not do much to discourage further pollution.
“Here we are in 2021 and the problem just keeps getting worse and worse and worse every year,” he said.
Sander-Green said he was also “disappointed” that Environment and Climate Change Canada is not going to pursue charges for pollution offences between 2013 and 2019.
“It sends exactly the wrong message, which is that you can negotiate with Environment Canada if you’re a mine that’s polluting to keep your fines down,” he said.
Selenium and calcium are released into the local environment when mine waste rock is exposed to precipitation and oxygen, Crown counsel Alexander Clarkson said in court, adding that the scale of the waste rock piles along the Upper Fording River is “substantial,” with some piles reaching more than 100 metres high.
Exposure to elevated levels of selenium is toxic for fish and can result in deformities and reproductive failure. Calcite, meanwhile, essentially turns the stream bottom to concrete, solidifying the loose gravels that fish rely on to create protective nests for their eggs.
Clarkson said Teck Coal was aware years earlier that selenium and calcite could cause environmental harm, but over the course of 2012 “did not exercise due diligence to prevent the deposit of coal mine waste rock leachate into the Fording River.”
Nor did the company have a comprehensive plan in place to address contamination from mine waste rock at that time, he said.
At the same time, Teck failed to maintain barriers to prevent westslope cutthroat trout in the Upper Fording River from accessing the waste rock settling ponds, Clarkson said.
In 2012 Environment and Climate Change Canada officers collected samples of westslope cutthroat trout muscle and eggs in the Upper Fording River watershed and detected selenium concentrations high enough to cause adverse effects, he said.
Westslope cutthroat trout are listed as a species of concern under the federal Species at Risk Act.
Selenium concentrations detected in water samples from the Upper Fording River downstream of Teck’s coal mines ranged from 9 part per billion to 90 part per billion, according to an Environment and Climate Change publication on the investigation. Selenium concentrations upstream of the operations meanwhile, were less than 1 part per billion.
“Calcite deposits were also observed in tributaries supporting the habitat of the Upper Fording River westslope cutthroat trout population,” Clarkson noted.
Since 2012 Teck has conducted fish surveys in the Upper Fording River. While Clarkson noted the westslope cutthroat population was either stable or increasing in surveys conducted between 2013 and 2017, the 2019 survey revealed a dramatic collapse of the adult population relative to 2017 numbers. The cause of the collapse is still being investigated.
Teck’s coal mines are located within the traditional territory of the Ktunaxa Nation.
“Fish and fish habitat are critical to the maintenance of Ktunaxa rights, interests, and practices for ecological, cultural, subsistence, and commercial values, particularly in light of the historic loss of swaq̓mu (salmon) from the upper Columbia,” said Vickie Thomas, the operational director of Ktunaxa lands and resources sector, as part of the Ktunaxa community impact statement she read in court.
“The pollution of waterways in qukin ʔamakʔis and Ȼam̓ na ʔamakʔis affects the Ktunaxa in many ways,” she said.
“Ktunaxa perceptions of contamination in fish is already impairing Ktunaxa practice of rights on the Elk and Fording Rivers, including avoidance of these areas for fishing,” she said.
“The result is an alienation of our people from our lands, waters and cultural practices.”
“From a Ktunaxa perspective, considering the overall disturbance of ʔamak (lands) within qukin ʔamakʔis, the threshold of adverse effects on the exercise of Ktunaxa rights has likely already been surpassed in the region,” Thomas said.
In his open letter, Teck CEO Lindsay said the company has invested about $1 billion to implement the Elk Valley Water Quality Plan, which was developed in 2013 and approved in 2014, to reduce water pollution from the mines. As part of that plan, Teck has constructed water treatment facilities and implemented water quality monitoring and research and development initiatives.
“While there has been significant progress since 2012, much more remains to be done. Additional water treatment facilities are under construction now with more in the planning stages,” Lindsay said, adding the company plans to invest up to $655 million in the next four years.
“We are committed to meeting this challenge,” he said.
Environment and Climate Change Canada issued a directive to Teck in October 2020 requiring the company to take certain steps, including water treatment facilities, to improve water quality in the Upper Fording River Valley.
Wildsight however, has repeatedly raised concerns that Teck’s costly water treatment facilities are not a sustainable long-term solution.
With four more mines proposed in the area, Sander-Green said he’d like to see a “pause” on any potential coal mining expansion in the Elk Valley.
“We’re very concerned that we’re going to see a lot more mining in the valley with water treatment that’s going to mask that pollution problem for as long as the coal lasts and then in the long-term we’re going to see even more pollution than we see today,” he said.
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