When it seemed clear the newly minted B.C. NDP government would not pursue charges against Imperial Metals, owner and operator of the Mount Polley mine, for a 2014 tailings pond collapse, one woman decided to take matters into her own hands.

Bev Sellars, former chief of the Xat’sull (Soda Creek) First Nation — in whose territory the tailings pond released an estimated 25 million cubic metres of mining waste into Quesnel Lake — filed a private prosecution against Mount Polley on August 4, 2017, the final day charges could be laid.

Sellars made the case that Mount Polley has violated 15 rules under B.C.’s environmental and mining laws. She brought the private prosecution into play with the hope the province would take over the charges.

But this week B.C.’s Crown Prosecution Service quashed the case, saying there wasn’t enough evidence to proceed.

Sellars said the news came as a shock.

“I don’t understand how they can say there wasn’t enough evidence,” Sellars said. “Anyone can go out there or look online and see there was a spill. And there were consequences of the spill.”

The tailings pond collapse caused a spill that lasted over 12 hours. The massive deposit of mine waste that entered Quesnel Lake, a source of drinking water for residents of Likely, B.C., contained mercury, arsenic, selenium, copper and other heavy metals and remains settled on the lake’s floor to this day. Quesnel Lake is one of the deepest fjord lakes in the world and is home to a quarter of the province’s sockeye salmon population. The long-term effects of the spill and its contamination of fish habitat is still uncertain.

While the time limit has run out for criminal charges to be brought in B.C., federal charges under the Fisheries Act can still be laid for another 18 months.

However, Sellars is worried  federal charges won’t be laid.

“If there are no federal charges, then it’s just a free for all. Go out and pollute. So what if you have breaches of your tailings ponds? There’s nothing anyone can do,” she said.

“This is setting a dangerous precedent.”

ICYMI: Canada Has Second-Worst Mining Record in World: UN

“I think British Columbians and First Nations are rightly horrified that B.C. doesn’t appear to have the political tools or the political will to enforce consequences for the people who are responsible for this disaster.” https://t.co/UvPWhvrFeq

— DeSmog Canada (@DeSmogCanada) February 3, 2018

ICYMI: B.C. Quietly Grants Mount Polley Mine Permit to Pipe Mine Waste Directly Into Quesnel Lake

Kai Nagata, energy and democracy director for the democracy advocacy group Dogwood, said the quashed case presents an opportunity to reflect on B.C.’s ability to effectively regulate mines.

“I think British Columbians and First Nations are rightly horrified that B.C. doesn’t appear to have the political tools or the political will to enforce consequences for the people who are responsible for this disaster,” Nagata told DeSmog Canada.

“That the province would pass off the consequences to the feds reinforces that we don’t actually have the power in our own land to protect local people, freshwater and public health and safety.”

Nagata said there is a separate set of rules for international mining corporations that are well connected and operate in a regime that was designed for the early years of the Canadian colony.

B.C.’s mining laws were written nearly 160 years ago.

“I think it’s time to take a really close look at the rules that govern mines in B.C. and update them to a standard that reflects all the progress we’ve made in this province over the last 150 years.”

ICYMI: B.C.’s 150-Year-Old Mining Laws Are Absurdly Outdated. Guess Who Benefits From That?

Private prosecution cases are reviewed by the Crown counsel and “if our charge assessment standard is met we can assume conduct and prosecute as with any prosecution on behalf of the Crown,” Alisia Adams, spokesperson for the B.C. Prosecution Service, told DeSmog Canada.

If that standard is not met, charges are stayed, she said, adding the service doesn’t generally allow a private prosecution to proceed to trial, but they will take a case over should it proceed.

The B.C. Conservation Service Office is actively investigating the tailings pond collapse, but has missed the three-year deadline to press charges under both the B.C. Environmental Management Act and the B.C. Mines Act.

“I can say that we are aware that there is an ongoing investigation that’s continuing but because of that we can’t speak too much to the specifics of this investigation,” Adams said.

Patrick Canning, legal counsel for Sellars said he was frustrated and disappointed at the decision.

Canning said he supplied plenty of evidence to the Crown prosecutor, such as public investigations and reports filed after the incident, photographic evidence and video statements from several witnesses who were on Quesnel Lake the morning of the spill.

Canning added the Prosecution Service could have sought further evidence, as is common practice when criminal charges are brought from bodies like the RCMP.

The Ministry of Environment also could have directed the Conservation Service Office to share the findings of its ongoing investigation with the Crown prosecutor, he said.

When asked if the B.C. Ministry of Environment had done so, spokesperson David Karn indicated the results of that investigation will be forwarded to federal prosecutors.

“The Public Prosecution Service of Canada will consider all of the information gathered during the course of this investigation should charges be recommended under the Fisheries Act or other legislation,” Karn said in an e-mailed statement.

Ugo Lapointe, executive director of MiningWatch Canada, said B.C. is setting a troubling standard.

“Truly, we are not seeing a clear and strong signal from the Crown in B.C. that they want to enforce B.C. laws.”

ICYMI: British Columbians Saddled With $40 Million Clean-Up Bill as Imperial Metals Escapes Criminal Charges

Lapointe brought a federal private prosecution against Mount Polley and the B.C. government in late 2016. More than 41,000 individuals signed a petition in support of those charges.

The federal prosecution service stayed those charges in the spring of 2017, but can lay new charges or revive Lapointe’s charges until August 2019.

“Let’s contemplate for a moment that a disaster like Mount Polley with clear damage to B.C. water and B.C. forests, clear damage to fish habitat that has been documented in multiple reports — if it’s not possible to bring about charges under B.C. law, what does that tell us about B.C. law?”

Sellars said she is troubled that she does not have the opportunity to forge ahead with her private prosecution now that it’s clear the Crown will not take over her case.

“If they didn’t want to take it forward, that’s fine, but they should have allowed me to do so,” Sellars said.

ICYMI: “They’re Getting Away with It”: Locals Say No Blame Means No Compensation for Mount Polley Mine Spill Victims

Andrew Gage, staff lawyer with West Coast Environmental Law, said it’s problematic that B.C. does not allow citizens to carry forward private prosecutions.

“The absurdness of the ongoing B.C. investigation is they’ve had three years and still they couldn’t make the deadline [to press charges]. Yet, here you have someone who made that deadline and they quashed those charges.”

“The reason private prosecutions are sometimes viewed as a check and balance or safeguard to the legal system is because sometimes people don’t trust the government to do all the investigation and prosecution — to do their job, essentially,” Gage said.

“That certainly seems to be the case here.”

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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.

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Almost 30 months after 25-million cubic metres of contaminated sludge and water swept into lakes and creeks around the Mount Polley Mine, near Williams Lake, MiningWatch Canada has filed a private prosecution against the provincial government and Mount Polley Mining Corporation.

MiningWatch, supported by a coalition of environmental, First Nations and social justice organizations from Canada and Alaska, was forced to take action because the Crown has failed to lay charges and enforce the Fisheries Act despite ample evidence, said Ugo Lapointe, MiningWatch national program coordinator.

“We are all concerned that, almost 30 months later, despite clear evidence of impacts on waters, fish and fish habitat, no sanctions and no penalties have been brought forwards by any level of government,” Lapointe said.

“This sends the wrong signal to the industry across the country and undermines public confidence in the capacity of our regulatory system to work effectively to protect our environment.”

The collapse of the Mount Polley tailings pond dam destroyed or permanently affected more than 2.6 million square metres of aquatic and riparian habitat, according to MiningWatch.

Mount Polley is a gold and copper mine operated by Mount Polley Mining Corporation, a subsidiary of Vancouver-based Imperial Metals. The company also owns Red Chris Mine near the B.C. border with Southeast Alaska and is exploring the possibility of opening two mines in Clayoquot Sound.

Mount Polley closed after the 2014 dam breach, but started full production again last year when it was given a clean bill of health by the province.

The MiningWatch charges were filed in Provincial Court in Williams Lake Tuesday, using a provision of the Criminal Code that allows citizens to start a private prosecution if they believe someone has committed an indictable offence.

The legislation is a valuable constitutional safeguard that provides for citizens to enforce federal laws, such as the Fisheries Act, to protect public resources, said MiningWatch lawyer Lilina Lisenko.

The same legislation was used by salmon farm activist Alexandra Morton in a case against Marine Harvest Canada, when the company pleaded guilty to illegal possession of wild salmon, and for an ongoing lawsuit by Marilyn Burgoon against Executive Fuel Flight Services after 33,000 litres of jet fuel spilled into Lemon Creek.

“The next step is to go through the process hearing and, if the court accepts the evidence, then they set up a trial date,” Lapointe said in an interview.

However, looking at the massive expense of taking the province and a mining corporation to court, Lapointe is hoping the case will be picked up by the Federal Crown.

“They can decide whether to take over the case or not,” he said.

#MtPolley & BC Gov't Target of Criminal Charges Brought by Watchdog @MiningWatch Canada https://t.co/eOiRNGj9Cz #bcpoli #bcmining #cdnpoli

— DeSmog Canada (@DeSmogCanada) October 19, 2016

MiningWatch lawyers will be arguing that Mount Polley Mining Corporation and the province failed to implement minimum safeguards, which led to the largest mine-waste spill in Canadian history and to violations of the Fisheries Act.

The province was aware that the tailings pond and dam were not constructed according to design, but the Ministry of Energy and Mines did not enforce the law or apply its own policies, says a MiningWatch background paper.

Last December B.C. Chief Inspector of Mines, Al Hoffman decided not to forward charges to Crown counsel over the collapse of the tailings pond dam.

At that time Hoffman said that the company had poor practices, but he could not find evidence of non-compliance with mining regulations.

Hoffman found a major cause of the dam failure was a weak glacial soil layer beneath the foundation of the dam and other factors included the slope of the pond’s embankment, inadequate water management and insufficient beaches.

Imperial Metals is suing two engineering firms for damages over the dam failure.

B.C.’s Auditor General Carol Bellringer found in a report released in May that provincial monitoring and inspections of mines were inadequate to ensure mine operators complied with requirements.

Another investigation into the Mount Polley disaster is being led by B.C.’s Conservation Officer Service with assistance from Environment Canada, the Department of Fisheries and Oceans and RCMP, but there is no indication whether charges will be laid.

Than investigation is ongoing, a spokesman for the B.C. Ministry of Environment said Tuesday.

A letter to MiningWatch lawyer Lilina Lysenko, written last month by Thomas Hlavac of Fisheries and Oceans, said investigators have served a number of search warrants to obtain evidence.

“That evidence is under examination by the investigators. Any charges supported (by) the evidence will be recommended to the Public Prosecution Service of Canada for their consideration and action,” Hlavac wrote.

Tara Scurr of Amnesty International Canada, one of the organizations supporting MiningWatch, said it is concerning that the mine has been granted a license to resume full operations when the Conservation Officer Service’s criminal investigation has not yet finished.

“While there is evidence of some impact on fish and fish habitat, many questions remain to be answered about long-term impacts and what role people affected by the spill will have in determining any remedies that are required,” Scurr said.

Bev Sellars, chair of the group First Nations Women Advocating for Responsible Mining and a councillor with the Xat’sull First Nation in Williams Lake, said there is no point in having laws if governments and industry are not held accountable when they are violated.

“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.

“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.

Mount Polley Mining Corporation referred questions to Steve Robertson, Imperial Metals vice-president of corporate affairs, who did not respond to calls from DeSmog Canada Tuesday.

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The Soda Creek First Nation, traditionally called the Xatśūll First Nation, is going to tap into band savings for a community centre to pay for independent scientists to study the local environment in the wake of the Mount Polley mine spill that sent billions of litres of mining waste in Hazeltine Creek and Quesnel Lake.

Bev Sellars, chief of the Soda Creek said ever since the spill occurred it has been difficult to find reliable sources of information.

“The reports coming out from mining and the government say everything is fine, but we don’t really believe that,” she said in an interview in Vancouver. “A disaster such as this – there are going to be long term effects.”

Major concerns for her nation have to do with the long-term effects of the spill on Quesnel Lake, which is in the traditional territory of the Soda Creek First Nation and the Williams Lake Indian Band.

“I don’t think anybody really knows how [Quesnel Lake] has been affected,” she said.

“I’m not a scientist but I know that it’s going to be drastically affected in some way, but how, I don’t know,” she added.

Last week a local drinking water ban was lifted for all affected water, excluding Polley Lake, Hazeltine Creek and where the Hazeltine meets Quesnel Lake.

Although the water ban has been mostly lifted, there are no clear plans for cleanup of the spill site yet.

And there won’t be, until Imperial Metals has completed a partial draining of Polly Lake into Hazeltine Creek, Sellars said.

At this stage, no involved party can claim the science is settled until the spill is, Sellars said.

“We were told when we met with Imperial Metals, I think it was four days after the spill, they hadn’t even started to [clean up] yet, that it would take three weeks to stop the spill before they could go and even start doing an investigation,” she said.

“It’s still spilling out.”

Sellars said word of the spill came as a shock to her community, who are still coming to terms with the news.

“We had a community meeting over at the Williams Lake Indian Band and the tears and the heartache, just people crying, worried about the spill and what that is going to do to the salmon,” she said.

“The Quesnel Lake area is an area where we go and find certain medicines and plants that we can’t find in other parts of our territory. That’s a real worry and concern.”

Sellars said she feels the provincial government has been too hasty in it’s assessment of drinking water and fish impacts.

“I think there they are too quick to say everything is fine. That it’s benign,” she said.

Bill Bennett, minister of mines for B.C., recently likened the spill to an avalanche, which happen frequently across the province every year, he said. Locals took offense to the comparison, saying it downplays the environmental damage and potential long-term consequences of the spill, which are yet to be seen.

Sellars said it’s true that avalanches occur across B.C., “but avalanches don’t have toxic material following right behind it,” she said. “Avalanches have natural materials, so there’s a big difference there.”

Sellars said a priority for her community now is to ensure they have access to independent information.

Her community has brought in a scientist who previously worked on the Exxon Valdez spill, a geochemist that worked at the Mount Polley mine and engineer Brian Olding, who wrote a technical report in 2011 warning the B.C. Ministry of Environment about the Mount Polley tailings pond.

These independent experts are warning the Soda Creek First Nation about the veracity of government and industry claims, Sellars said.

“They’re telling us that what Mount Polley and the governments are saying is absolutely not true,” she said. “So we have hired them to get our own answers and make sure that we get the answers. If they tell us everything is fine, then we’ll accept that.”

“But we’re not accepting Mount Polley or the government’s tests right now,” she said, adding there is an underlying element of mistrust.

“Definitely a lack of trust” she said. “Definitely.”

“I think it’s way too soon for anyone to say that there really are no consequences,” Sellars said, saying they’re expecting one of the largest salmon runs in years to begin next month. The salmon will have to swim directly through Quesnel Lake, which is home to 25 per cent of the province’s sockeye salmon, where the contents of the spill still linger.

Sellars said the impact of the spill is far from over.

“This is huge and it’s going to affect us for years to come. I just can’t understand how they can make statements like that,” she said, referring to the provincial government’s claim that drinking water is safe for consumption.

Sellars said the only way her community can move forward is if they can rely on the information they are given by experts.

“My community, we’ve been saving for a community hall for years,” she said. “We’re almost at the point where we can go to the bank and say we have this money and we want to build a community hall.”

“But we’ve taken money out of our own community hall money to hire our own experts because this has to be done. So that’s what we’re doing now – getting independent scientific analysis of the situation.”

This article is part of a joint-venture between DeSmog Canada and the Vancouver Observer.

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