Court halts tailings increase as First Nation challenges B.C.’s decision to greenlight it

The Xatśūll First Nation has claimed a victory against the Mount Polley Mining Corporation, which seeks to expand its tailings storage facility in B.C.’s Interior. The mining company will not add any additional tailings until after a judicial review hearing next month, as the nation pursues legal action against B.C. for allowing the mine to expand in the first place. 

“Today’s decision will help to ensure that no further harm from increased levels of tailings deposition is done to Xatśūll Territory by Mount Polley between now and the hearing of the judicial review,” the nation said in a statement.

Mount Polley Mining Corporation, owned by Imperial Metals, applied to raise its tailings storage facility, which stores contaminated mining waste. Mount Polley is infamous for a breach in 2014 that spilled about 25 billion litres of sludge from that same storage facility, contaminating drinking water and salmon spawning grounds. B.C. taxpayers covered $40 million in cleanup costs. Fifteen charges under the federal Fisheries Act were laid against Imperial Metals in December 2024 for the spill. 

On Friday afternoon, Imperial Metals released a statement saying that no injunction had been issued. “Normal operations of the mine and construction of a four-metre raise of the tailings storage facility will continue,” the statement said.

Xatśūll First Nation asked for an environmental assessment to take place before Mount Polley could raise its tailings dam by four metres, but the government of British Columbia said it was not necessary. In March, it greenlit the gold and copper mine to start raising the dam.

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Xatśūll (pronounced hat-sooth) is asking for a judicial review of B.C.’s decision to allow the company to go ahead. The nation seeks to hold B.C. “accountable for its commitments regarding reconciliation, implementing the United Nations Declaration on the Rights of Indigenous Peoples and environmental protection,” it said in a statement on Friday.

In April, Xatśūll said it informed Imperial Metals of its plans to file for an injunction and asked the company to voluntarily halt construction while matters were settled in court. It said Brian Kynoch, president of Imperial Metals, responded the company would not hold off and construction had already begun. Imperial Metals did not respond to The Narwhal’s request for comment.

The nation said it’s hopeful “Imperial Metals, Mount Polley, and the government of B.C. will act in good faith and commit to strengthening our relationship in a way that builds trust and respects and honours Xatśūll’s role in the territory now and for generations to come.”

The Ministry of Mining and Critical Minerals told The Narwhal it cannot comment on matters before the court.

‘We must be part of how development happens’

Companies are commonly granted injunctions against First Nations, but the reverse is rare. A 2019 review by the Yellowhead Institute at Toronto Metropolitan University found 81 per cent of injunctions filed by corporations against First Nations were granted, but 81 per cent of injunctions filed by First Nations against corporations were denied.

Xatśūll First Nation Kukpi7 (Chief) Rhonda Phillips is concerned not just about Mount Polley, but about the extent of extractive industry on the land. In March, the province greenlit another mine in the territory to expand without an environmental assessment. 

“Our territory is already overburdened by irresponsible resource extraction,” Phillips told The Narwhal after the nation filed for the judicial review.

“We are on the front line of environmental harm caused by government decisions made without us.”

B.C. and the federal government both adopted laws to enshrine the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes the need for Indigenous Peoples’ free, prior and informed consent. But the issue of bypassing consent hasn’t disappeared and often results in costly court battles.

Merle Alexander, a principle with Miller Titerle + Company who practices Indigenous resource law, recently told The Narwhal moving ahead without consent brings uncertainty.

“There will be higher risk if proponents don’t follow their own due diligence and either pass through an Indigenous-led assessment or negotiate consent with the nation,” he said.

Phillips said the nation is not against mining, but wants to see development done responsibly and “in partnership” with First Nations.

“We must be part of how development happens,” she said.

Updated May 9th, 2025, at 5:43 p.m. PT: This story has been updated to reflect comments from Imperial Metals and Xatśūll First Nation. While an earlier version of this story reported that an injunction had been issued, the mining company countered that claim.