In a surprise eleventh-hour move, Indigenous activist and former Chief of the Xat’sull First Nation, Bev Sellars, has filed charges against the Mount Polley Mining Corporation, owned by Imperial Metals, for the mine disaster that saw 24 million cubic metres of mine waste released into Quesnel Lake on this day, three years ago.
The 15 charges, 10 under the B.C. Environmental Management Act and five under the B.C. Mines Act, were brought as part of a private prosecution against Mount Polley that can potentially be taken over by the new provincial government.
“We just couldn’t let it go,” Sellars said in a press release. “In my culture, we have a sacred responsibility not only to care for the land, waters, animals, and people living today, but also for the next seven generations to come.”
“I could not bear to witness B.C. simply stepping aside and giving up on its own responsibility to protect our shared environment and waters,” she stated.
Case lawyer, Patrick Canning, said a private prosecution of this nature is unusual.
“Private prosecutions in general are unusual,” Canning told DeSmog Canada, adding the last-minute nature of the charges was due, in part, to waiting on potential charges from the new B.C. government.
On Wednesday, B.C. Environment Minister George Heyman announced B.C. would not lay charges, but that an ongoing investigation could still lead to federal charges under the Fisheries Act for another two years.
The provincial government could foreseeably take over the charges, West Coast Environmental Law staff council, Andrew Gage, told DeSmog Canada.
“In theory what the province should do is examine the case and potentially take it over if it’s worth proceeding with,” he said.
The charges pertain to the dumping of contaminated mine waste into the environment and waterways, poor and unsafe operational practices and potential violations of permit conditions.
“We would hope the province would choose to intervene in the case,” Gage said.
The absence of charges against Mount Polley is shocking, he added.
“It doesn’t point to a failure of the incoming government but it does point to a failure of the government,” Gage said, adding he is glad to see a citizen like Sellars step in on behalf of British Columbians.
“People need to feel they can step in when government isn’t doing its job well. We’ll have to see if the government actually uses this to do the right thing.”
— DeSmog Canada (@DeSmogCanada) August 5, 2017
Sellars said she hopes her private prosecution could act as a ‘door stopper’ for B.C., allowing the provincial Conservation Service Office to complete its investigation.
“While we are ready to go to full trial if necessary, we also believe it is ultimately the province’s job to enforce its own laws when they are violated,” Sellars said.
“If B.C. laws cannot be enforced when such a massive mining spill occurs, then we have a serious problem in B.C. and we must act to fix these laws.”
Gage said the rate of successful prosecution in environmental cases has dropped since the 1990s and early 2000s.
“I think that we need to have an expectation that laws will be enforced, even against, maybe especially against powerful players that can cause great environmental harm,” he said.
“The other things is there is a very practical consideration in bringing a prosecution and that is under the Environmental Management Act, the court can actually order alternative remedies, like remediation, compensation, restoration of fish habitat — all these practical considerations that the community around Quesnel Lake need desperately,” Gage said.
The case would also send a broader message to industry that environmental rules will be enforced in B.C., he said.
“I think it’s important when you’re dealing with an industry that has a temptation to cut corners…they need to know, given the consequences this industry can have, that they will be caught and there will be consequences for polluting when they don’t follow the law.”
Sellars’ private prosecution was brought with support from a number of organizations including MiningWatch Canada, West Coast Environmental Law’s Environmental Dispute Resolution Fund, the Wilderness Committee and the First Nation Women Advocating For Responsible Mining.
Image: Aerial view of the Mount Polley mine tailings pond on August 4, 2014. Photo: Cariboo Regional District