Federal Government Seeks to Quash Lawsuit Against Mount Polley and B.C. Government Before Evidence Heard

The federal government is seeking to stay a private lawsuit brought against Mount Polley Mining Corporation and the B.C. government in October 2016, nearly 30 months after the collapse of the Mount Polley tailings pond spilled 25-million cubic metres of contaminated mining waste into Quesnel Lake, a source of drinking water for residents of Likely, B.C.

Now the federal government is seeking a withdrawal of the criminal charges before MiningWatch Canada — the organization that first brought the charges, which claim the company and the province violated the federal Fisheries Act — has been given the opportunity to present evidence.

“We were stunned that the federal Crown does not even want us to show the court that there was enough evidence to justify proceeding with a prosecution against both the B.C. government and [the Mount Polley Mining Corporation] for the worst mining spill in Canadian history,” Ugo Lapointe, Canada Program Coordinator for MiningWatch, said.

“To add insult to injury, the Federal Crown did not even provide an explanation for why it is doing this now, with such short notice before the Court date which was set for the last two month,” Lapointe told DeSmog Canada.

Lapointe said under normal circumstances a process hearing would take place during which evidence would be presented and after which the court would emit a summons and set a trial date. Or, if the court decided to stay the proceedings, it would do so with an explanation based on the evidence and provided to the court and thus the public.

The B.C. court will take up to several weeks to decide if the Crown is warranted in entering a stay of charges.

Cancelling the proceedings without strong justification sends a dangerous signal to the mining industry in Canada, Lapointe said, adding it could further erode public confidence in Canada’s regulatory system.

“We initiated this private prosecution out of concern that it has now been over two and a half years since the Mount Polly disaster happened and yet, despite clear evidence of violations of Canadian laws, no charges have been brought forward by any level of government,” he said.

No charges and no fines have been laid against Mount Polley, owned and operated by Vancouver-based Imperial Metals. The collapse of the tailings pond released mining waste containing copper, lead, iron, arsenic and selenium into fish-bearing waters.

Quesnel Lake, where the vast majority of the spilled waste still resides, is home to one of the province’s most abundant sockeye salmon runs.

A 2015 investigation by Chief Inspector of Mines Al Hoffman, did not result in charges against Mount Polley. Hoffman’s report found the company engaged in poor practices but he stopped short of citing Mount Polley for non-compliance.

A subsequent report released by B.C. Auditor General Carol Bellringer found B.C. suffered from inadequate monitoring and inspection of mines and as a result was unable to ensure mine operators were following provincial rules.

An investigation into the incident by B.C.’s Conservation Officer Service is ongoing.

Imperial Metals is owner and operator of the Red Chris mine in northern B.C. and is exploring options for two more mines on Vancouver Island.

The MiningWatch lawsuit was filed under a citizen’s provision of the Criminal Code that allows for private prosecution of offenses, such as a violation of the Fisheries Act.

According to the Public Prosecution Service of Canada, private charges like those brought by MiningWatch are a “valuable constitutional safeguard against inertia or partiality on the part of authorities.”

Lilina Lysenka, lawyer for MiningWatch, said the court should be cautious about dismissing a case without reviewing the evidence.

“Staying the charges prior to having the opportunity to determine whether or not there is enough evidence to proceed could undermine this constitutional safeguard if it is done without good reason,” Lysenka said.

Bev Sellars, chair of First Nations Women Advocating for Responsible Mining which supports the MiningWatch prosecution, said the impacts of the Mount Polley mine spill are far from over.

“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 at the time of the proceeding’s launch.

“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.

MiningWatch hopes the case will be cleared for trial and will be eventually taken up by the Federal Crown.

Although supported by an impressive coalition of environmental, social justice and First Nations organizations that includes West Coast Environmental Law, Amnesty International Canada, Sierra Club BC, the Wilderness Committee, Concerned Citizens of Quesnel Lake and many others, MiningWatch recognizes “the cost and expense associated with prosecuting a case against a mining corporation and the Provincial government can be immense.”

“If Canada’s unique environmental values and waters are to be fully protected, it can only occur if the government stands against violations of its own laws and uses all the means and resources it has at its disposal to do so,” the group states.

Image: Screenshot of the August 4th tailings pond collapse at the Mount Polley mine. Credit: Cariboo Regional District via Youtube

Carol Linnitt is a journalist, editor, illustrator and co-founder of The Narwhal. Carol has been reporting on energy and environmental…

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