Financial gains are continuing to roll in for Teck Resources shareholders, with the third quarter financial report showing profits of $1.3 billion, despite dropping prices for copper and zinc and higher than expected costs at the Vancouver-based company’s Trail smelter because of forest fire smoke.

But, buried deeper in the financial report is a troublesome cloud in the otherwise relatively clear financial sky.

Teck Coal has received notice from Canadian federal prosecutors of potential charges under the Fisheries Act in connection with discharges of selenium and calcite from coal mines in the Elk Valley, says the release accompanying the report.

“If federal charges are laid, potential penalties may include fines as well as orders with respect to operational matters. It is not possible at this time to fully assess the viability of Teck Coal Ltd.’s potential defenses to any charges or to estimate the potential financial impact on TCL of any conviction. Nonetheless, that impact may be material,” it says.

Teck spokesman Chris Stannell said in an e-mailed response to questions from The Narwhal that the company cannot comment further on the potential pending legal matter and the company has been transparent about the “water quality challenges” in the Elk Valley.

“We recognize that action is required to protect and improve water quality,” he said.

Few details of the potential charges are known, with the Public Prosecution Service of Canada — the agency responsible for charges under the Fisheries Act — saying it does not discuss cases it may be reviewing.

Environment and Climate Change Canada media spokeswoman Samantha Bayard was marginally more forthcoming.

“ECCC enforcement officers are currently conducting an investigation into an alleged violation of the pollution prevention provisions of the Fisheries Act by Teck Coal Ltd. As the matter is currently under investigation, ECCC cannot provide further comment at this time,” she said in an e-mailed statement.

A provincial Environment Ministry spokesman said “the province is in contact with federal authorities and cooperating with their efforts.”

Teck’s previous Fisheries Act violations

Teck, the world’s second largest exporter of steel-making coal, is no stranger to fines levied by the federal and provincial governments for persistent problems with selenium and other pollutants leaching into waterways from Teck’s five metallurgical coal mines in the Elk Valley.

Last year, Teck Resources pleaded guilty to three violations of the federal Fisheries Act for polluting a tributary of the Elk River and was ordered to pay $1,425,000 into the federal Environmental Damages Fund to help restore Elk Valley fish habitat.

The fine was levied after Teck’s $600-million Line Creek water treatment plant, designed to address selenium pollution, unintentionally released a more bioavailable form of selenium in 2014, killing fish in the watershed.

Teck was also hit last year with $78,100 in provincial fines for failing to comply with an effluent discharge permit for its Line Creek coal mine operation. The fines, which related to inadequate wash bays resulting in oil being discharged into a pond, were initially assessed at $90,400, but were reduced after Teck lobbied for a reduction.

Pollution crossing Canada-U.S. border

Selenium and other substances, such as nitrates, sulphates and cadmium, leach into the Elk and Fording Rivers in B.C., then into the Koocanusa Reservoir, which straddles the border, and then into the Kootenai River in the U.S. before curling back into Canada at Creston.

Teck’s five metallurgical coal mines are all upstream of the transboundary Koocanusa Reservoir. Graphic: Carol Linnitt / The Narwhal

The pollution has created tension between Canadian and U.S. representatives on the International Joint Commission, the body tasked with protecting the quality of water flowing across the border and infuriated U.S. fishing guides and recreational fishers, who say they are seeing deformities in fish.

Small amounts of selenium are needed by humans, but larger amounts can cause problems ranging from stomach upsets to nerve damage and cirrhosis of the liver. Studies show that, in fish, selenium can cause defects such as missing gill plates, curvature of the spine and reproductive failure.

Selenium pollution could continue for centuries as it leaches from coal mine waste rock, and, so far, the fines amount to pocket change for a company such as Teck, said Lars Sander-Green, spokesman for the conservation group Wildsight.

“They have not had a significant impact on Teck and they are not going to change what Teck is doing on the ground,” he said.

Sander-Green does not yet know how further charges would be framed, although Wildsight is aware Environment Canada did an investigation from 2012 to 2014 and found significant problems at that time, he said.

Selenium pollution expected to increase

Although Teck is promising to construct water treatment facilities throughout the watershed and is developing a new form of water treatment, an October report to the region’s Environmental Monitoring Committee, made up of representatives from the province, Teck and Ktunaxa Nation Council, show the pollution is likely to get worse in the immediate future.

“They are predicting that selenium levels are likely to increase for about four more years, at which point they are hoping that their water treatment plants will be working and will reduce some of the pollutant levels. However, those water treatment plants are really a short-term Band-aid on a long-term pollution problem that is going to be around for thousands of years,” Sander-Green said.

With possible federal charges on the horizon, one recurring question is how the provincial government can continue to issue permits for an industry that is known to be polluting waterways and which is not meeting the requirements of the 2014 Elk River Water Management Plan, developed by Teck and approved by the province.

“Right now Teck has come out and said they won’t be able to meet their commitment under the plan and will be releasing more pollutants than are allowed under the plan. (Teck) is in the process of revising that plan and all signs point to the province accepting those provisions,” Sander-Green said.

“But I would certainly hope that the province is going to stand a lot stronger and say ‘if you can’t meet your conditions, you can’t get any more permits,’” he said.

In the struggle to figure out how to deal with selenium pollution, the province has taken the view that if the industry is allowed to expand and make money, technology will solve the problem, Sander-Green said.

“Now we are finding out that isn’t happening and we have dug ourselves even deeper into the hole,” he said.

Elk Valley mines expanded despite selenium concerns

The former Liberal government granted four mine extension permits to Teck in 2014, even though the water quality problems were well known. There are currently three applications for new coal mines in the Elk Valley from three additional companies in the initial stages of provincial review.

Teck Resources was a top donor to the BC Liberal party, donating $1.5 million between 2008 and 2017. The company also donated $60,000 to the province’s NDP in the same period.

A provincial Environment Ministry spokesman said the Water Quality Plan sets targets for safe levels of selenium, nitrate, cadmium and sulphate and the ministry is monitoring and enforcing compliance with the permits.

“Teck is developing and implementing advanced technology to treat selenium to the levels necessary to meet the targets set for the Elk River drainage and Koocanusa Reservoir and avoid local effects on aquatic life,” he said.

Teck spokesperson Chris Stannell said the Elk Valley Water Quality Plan is the most extensive water management program of its kind ever developed and the company is planning to spend $900 million implementing the plan over the next five years.

“This work includes construction of water treatment facilities throughout the watershed — one of which is operating and a second is under construction — in addition to carrying out extensive monitoring and studies in the region,” he said.

A new form of water treatment, known as saturated rock fill, has been developed as part of the company’s research program and has the potential to replace or augment traditional treatment technology, Stannell said.

“Teck is committed to taking the steps necessary, now and for the long term, to achieve the objectives of the Elk Valley Water Quality Plan,” he said.

Over the years, the selenium pollution problem has also put a spotlight on the gap between reclamation bonds the province demands from mining companies and the real costs.

Teck has put up about $500 million in reclamation bonds for the Elk Valley coal mines, which is about $900 million short of the estimated reclamation cost for polluting the Elk River system.

The Ministry of Energy, Mines and Petroleum Resources is reviewing its mine reclamation security policies after a stinging 2016 report by Auditor General Carol Bellringer concluded that financial security deposits demanded by the provincial government will not cover reclamation costs if a company defaults on its obligations.

Bellringer estimated that the fund is short more than $1.2 billion. That shortfall is estimated to have increased to $1.6 billion in 2016.

The auditor general also noted the selenium pollution puts Canada at risk of violating the Boundary Waters Treaty of 1909.

Bellringer said the environment ministry has monitored the dramatic increases in selenium levels in the Elk Valley for 20 years, but, with a lack of regulatory oversight, has taken no substantive action to solve the problem and has not publicly disclosed the risks of continuing to issue permits for coal mines in the Elk Valley. “As selenium accumulates up the food chain, it can affect the development and survival of birds and fish and may also pose health risks to humans,” Bellringer wrote.

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Canada’s fishery laws are back — well, on the first step to being back, at least. On Tuesday morning, Minister of Fisheries and Oceans Dominic LeBlanc officially announced the introduction of an heavily amended Fisheries Act, the key piece of legislation that was gutted in 2012 by the federal Conservatives. And fishery law experts are thrilled.

“The government’s made good on its promises,” said Linda Nowlan, staff lawyer and head of the West Coast Environmental Law’s marine program. “They’ve not only restored lost protections, especially for fish habitat, but they’ve also introduced a number of modernizations that were long overdue.”

It’s also being hailed on the East Coast.

“This is like Christmas Day for fishery policy nerds,” said Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University.

‘You can’t protect fish without protecting fish habitat’

The most significant change is restoring the “HADD prohibition” — which stands for the “harmful alteration, disruption or destruction” of fish habitat. That meant the minister had to specifically authorize any activities that would result in impacts of fish habitats.

That key provision was removed in 2012 and replaced by a prohibition against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”

In other words, it seriously limited the scope of the legislation.

In March 2012, a letter signed by over 600 scientists was submitted to then-prime minister Stephen Harper that argued the change would be a “most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”

The new approach was considered impossible to enforce. Nowlan said there were zero prosecutions for fish habitat damage between 2012 and 2016.

“You can’t protect fish without protecting fish habitat,” said Nikki Skuce, director of Northern Confluence, which works to protect wild salmon watersheds in northwestern B.C. “It’s really great to see habitat protections restored in the new Fisheries Act and measures in place to address cumulative effects to rivers such as the Fraser and Skeena.”

The return to the “HADD” provision removes any ambiguity in what constitutes protected fish habitat.

“If there’s fish there and they live there, it’s fish habitat,” Favaro said. “And you’re not supposed to destroy it unless you get permission to do so by the minister.”

New provisions include public registry, management agreements with Indigenous bodies

But the amended Fisheries Act doesn’t just revert the legislation back to how it was before the changes in 2012 — after all, that version hadn’t been updated since 1977 when it was introduced by Minister LeBlanc’s father.

Tuesday’s announcement included a series of significant modernizations.

Those include granting the ability to implement short-term restrictions on fisheries in the case of emergencies, like the recent right whale die-off; prohibiting the capturing of whales for keeping in captivity; requiring the minister to consider the rebuilding of fish stocks; making explicit acknowledgments and requirements to include Indigenous peoples and knowledge systems; allowing for Canada to enter into management agreements with Indigenous governing bodies; and granting the use of alternative compliance mechanisms.

There’s also a new online public registry meant to increase transparency. Nowlan explained that this will help prevent cumulative impacts to fish habitat, as it’s often small projects that build up to damage ecosystems (as opposed to one larger, more visible project). Favaro said such a registry will help keep track of the small cumulative impacts and allow people to decide if we’re achieving the goal of no net loss of fish habitat.

“Right now, we don’t even know all the activities that are happening and impacting fish habitat,” Skuce said. “That’s a strength of the new Act.”

The government also pledged $284 million over five years to improve enforcement of the new laws.

Minister still has a considerable amount of discretionary power

It’s not all perfect though.

Martin Olszynski, assistant professor in law at University of Calgary and expert in fishery law, said there’s an unfortunate use of “discretionary language,” meaning that many components of the proposed legislation are basically up to the opinion of the minister — and requiring no specific evidence.

While he noted that some issues are very complex and that flexibility can be required, the “old-school language” of ministerial discretion does leave a lot of doors open.

“There are some mandatory provisions, but definitely there is still a lot of that discretionary language,” he said. “The question is just whether or not in after spending some time on those issues, are there some objective criteria or benchmarks that could be included that would help frame that discretion?”

For example, there’s a section about implementing measures to manage the decline of fish stocks. The newly amended legislation includes the phrase “if the Minister is of the opinion that a fish stock that has declined to its limit reference point or that is below that point would be impacted.” That’s not satisfactory for some.

“I was hoping for a line that was not ‘if the minister is of the opinion that a fish stock has declined,’ but ‘if the fish stock has declined as determined by the best available evidence then there should be measures in place aimed at rebuilding the stock,’” Favaro said.

As he noted, the current wording could feasibly mean that a minister can simply “not believe” that fish stocks have declined, or take it into account and decide not to act.

Missing provisions

Observers have also found a number of omissions from the new Act.

Olszynski noted there’s no reference to an annual or biannual report on fish habitat in Canada. He says there is also a lack of clarity about how the new Fisheries Act will relate to the upcoming impact assessment legislation that will replace the current Canadian Environmental Assessment Act).

Skuce, the World Wildlife Fund Canada and Green Party leader Elizabeth May all criticized a lack of provisions on harvesting fish via fish farms.

Kris Statnyk, a Gwich’in lawyer with Mandell Pinder, tweeted: “Among the mandatory considerations BC First Nations sought that do not appear in the discretionary list in the Bill: compliance with UNDRIP, consistency with international standards and commitments, climate change, First Nation fishing and management plans.”

Bill expected to become law in 2019

It will take some time for Bill C-68 to wind its way through parliamentary committee, and it’s not expected to become law until mid-2019.

Olszynski said he’s looking forward to seeing how the committee studies the bill and which witnesses they bring in. Along the way, he said that the Department of Fisheries and Oceans could  be clearer on some of the more ambiguous provisions in the new legislation.

But on the whole, Tuesday was a huge win for advocates of stronger environmental laws.

“I hope we’ve learned from our mistakes,” Nowlan concluded. “More than 25 years ago, we had the Atlantic cod collapse. Now, we’re seeing more and more salmon populations being proposed as species at risk. Canada’s fisheries law really needs to do a better job of protecting fish and their habitat, and these amendments look like they’re going to take a big step in that direction.”

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Teck Resources pled guilty Thursday to three violations of the federal Fisheries Act for polluting a tributary of the Elk River and was sentenced to pay a $1,425,000 penalty into the federal Environmental Damages Fund, which will help restore fish habitat in British Columbia’s Elk Valley.

On October 16, 2014, 45 dead fish were found in Line Creek near one of Teck’s five coal mines in the region. The following day, Environment Canada investigators found waste water from a Teck water treatment plant, put in place to deal with selenium pollution, was entering Line Creek, a tributary of Elk River.

Selenium is a naturally occurring chemical element, but it can be harmful in even very tiny amounts. Selenium pollution is produced by coal, uranium and bitumen extraction and is of growing concern in Canada.

The dead fish found by Environment Canada investigators included bull trout, a species of special concern in the region. The Fisheries Act prohibits the deposit of deleterious substances into water frequented by fish.

“This failure points to much larger, longer-term water pollution issues in the Elk Valley and the Kootenay River,” Robyn Duncan, executive director of Kootenay-based conservation group Wildsight, told DeSmog Canada.

“While much effort has gone into tackling the issue of dangerous selenium contamination running off from waste rock dumps at the Elk Valley coal mines, the problem is still far from solved.”

Teck’s $600 million water treatment plant had been in operation for four months at the time of the fish death and was meant to provide a solution to disturbingly high selenium levels responsible for fish deformities in cutthroat trout. At the time, Teck Resources said the fish deaths may have been related to the water treatment plant coming on line.

As a result of the charges, Teck Resources — the world’s second largest exporter of steel-making coal — is required to publish information about the conviction on its website and will be listed on the Environmental Offenders Registry. Teck produces roughly 70 per cent of Canada’s exported coal.

Robin Sheremeta, senior vice president of coal at Teck Resources said the company took “full responsibility” from the outset and “recognize that we need to do better.”

“Following this occurrence in 2014, we undertook a full investigation and implemented a number of steps to ensure this does not happen again,” Sheremeta said in a statement.

The Line Creek facility is currently in operation with special features to reduce selenium and nitrate in treated water, the company said.

This is not the first time Teck Resources has been in troubel for polluting water. In February 2016 Teck Metals Limited pled guilty to a number of charges related to polluting fish bearing waters, and was fined $3 million for violations of the Fisheries Act and a further $400,000 for B.C. Environmental Management Act offences.

Teck Resources’ Legacy Selenium Pollution Problem

The Elk River Valley, known for its massive coal deposits since the 1800s has had a long time problem with selenium. But it wasn’t until the expansion of major open-pit mining operations in the 1990s that selenium pollution reached concerning levels, according to Dennis Lemly research associate professor at Wake Forest University in North Carolina.

In a 2014 report prepared for Environment Canada, Lemly warned selenium pollution levels were high enough to threaten a complete collapse of cutthroat trout in affected waterways.

Selenium causes abnormalities and reproductive loss in fish species, Lemly said, adding data he reviewed related to selenium in the Elk River and its tributaries showed deformities in westslope cutthroat trout. Fish eggs contaminated with selenium and hatched in an Environment Canada laboratory showed fish born with deformed jaws, skulls, fins and malformed gills.

Lemly’s analysis estimated more than180,000 fish die to selenium poisoning in the Elk River and its tributaries every year.

In a 2014 interview with the Globe and Mail, Lemly said selenium pollution is often overlooked.

“How bad does it have to get? Unfortunately, you have to have the ecological equivalent of a nuclear meltdown for people to stop and say, ‘Wait a minute. We are doing more harm than good,’ ” he said, referring to a two-headed baby trout found in selenium-tainted waters in Idaho.

“It’s not a question of knowing better, it’s a question of not wanting to know.”

The Elk River drains into two bodies of water shared by B.C. and Montana — Lake Koocanusa and the Kootenai River. In 2014 both were found to have high levels of selenium in the tissues of fish, causing concern among the conservation and fishing communities south of the border.

Tissue samples collected from seven species of fish in Lake Koocanusa between 2008 and 2013 showed increasing levels of selenium.

Clint Muhlfeld, an aquatic ecologist at the U.S. Geological Survey’s Glacier National Park field office, said selenium pollution entering the cross-border Kootenai River Basin is entering critical habitat of the westslope cutthroat and two endangered U.S. species: the endangered white sturgeon and bull trout.

“There are several indicators that the Elk River is nearing or has already exceeded a critical tipping point. Selenium is a ticking time bomb, and its effects are being realized all the way down the transboundary river system and into Lake Koocanusa,” Muhlfeld told the Flathead Beacon in 2014.

“This is an ecological catastrophe that is occurring, and it is not just isolated to the Elk. It is clearly impacting the entire system from the top down and it’s only going to get worse. It’s by far the biggest ecological threat facing the Northern Rocky Mountain ecosystem and the Crown of the Continent.”

Teck Resources Number One BC Liberal Donor

Teck Resources is the top donor to the BC Liberal party, which governed B.C. from 2001 to 2017. Since 2008, the company gave $1.5 million to the party. The company also donated $60,000 to the B.C. NDP in that same period.

A 2016 report from B.C. auditor general Carol Bellringer expressed concern at permits granted to Teck Resources to expand its Line Creek Mine in the Elk Valley.

Staff at the Ministry of Environment refused to issue permits after they found an expansion of the mine would exacerbate selenium pollution problems.

Cabinet stepped in, overriding ministerial staff, and granted a permit for the expansion invoking, for the first time in B.C. history, section 137 of the Environmental Management Act, which allows government to introduce waste into the environment if deemed in the public interest.

The permit was granted despite the fact that the Line Creek Expansion Permit had “a site performance objective for selenium that allows five times the amount set in B.C.’s water quality guidelines for aquatic fish.”

The auditor general found the B.C. government, in granting the permit, did not publicly disclose the implications these permit levels will have in this area. The permit extended the life of the mine for an additional 18 years, to produce an additional 3.5 million tonnes of coal annually.

Although the Ministry of Environment charged Teck Resources an annual fee of $5,000 for selenium pollution, the auditor general found, “this is not reflective of the known environmental impact of selenium.”

According to Andrew Gage, staff lawyer at West Coast Environmental Law, Teck appears to have benefitted from a slackening regulatory environment in B.C.

In an analysis of Teck Resources’ environmental infractions, Gage and his colleagues found the company was often spared punishment for violating environmental rules.

In 2015, for example, Teck Coal Ltd. was inspected 58 times, and was found to be acting illegally 79 per cent of the time.

For the vast majority of those inspections (89 per cent), Teck was simply issued an advisory or written warning by Ministry of Environment staff.

Gage found only five incidents in which Teck was referred for further action but no record of that action was made available on the Ministry of Environment’s website.

Over the 10-year period between 2006 and the beginning of 2016, Teck Coal Ltd. received four fines for environmental infractions, for $575 a piece.

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This week marks the three-year anniversary of the Mount Polley mine disaster, which sent 24 million cubic metres of mining waste into Quesnel Lake, making it one of the worst environmental disasters in Canadian history.

It’ll be a stinging reminder of the tailings pond collapse for local residents, especially considering no charges have been laid against Imperial Metals, owner and operator of Mount Polley.

Come August 5 it will be too late for B.C. to lay charges, given a three-year statute of limitations — however federal charges can be laid for another two years.

But here’s the thing: under the federal Fisheries Act, Mount Polley can receive a maximum of $12 million in fines: $6 million for causing harm to fish and fish habitat and $6 million for dumping deleterious substances without a permit into fish bearing waters.

Compare that with the estimated $40 million in Mount Polley cleanup costs borne by B.C. taxpayers. And take into account that in 2016, Imperial Metals generated over $428 million in revenue and owns more than $1.5 billion in assets, according to the company’s annual report.

“Fines and sanctions are pitiful for environmental damages in Canada, and it’s part of the systemic and structural problem for ensuring greater environmental protection,” Ugo Lapointe, Canadian coordinator for MiningWatch, told DeSmog Canada.

“There’s little incentive for corporations to comply with environmental laws, or invest in more protective measures, if the consequences for failing to comply are cheaper.”

U.S. Environmental Fines Dwarf Canada’s

For examples of more meaningful environmental penalties, Canadians need look no further than the U.S.

In 2016 a Florida fertilizer manufacturer’s tailings pond drained millions of litres of wastewater into an underlying aquifer when a giant sinkhole appeared under the impoundment, tearing through the pond’s liner.  

The company was fined $2 billion USD for improper waste and chemical management (that’s 167 times the maximum fine Mount Polley could face under the Fisheries Act).

In 2014, Alpha Natural Resources was ordered to pay $27.5 million USD for thousands of environmental violations at the company’s 79 coal mines and 25 processing plants across the States. The company was also ordered by the EPA to pay $200 million in upgrades to its facilities to avoid future infractions.

Meantime back in Canada, the largest fine in Canadian history for an environmental infraction was for $7.5 million.

That penalty was handed out in 2014 to owners of the Bloom Lake mine in Quebec who pled guilty to 45 separate charges under the Fisheries Act.

The second largest fine in Canada, at $4.4 million, was just handed out to Prairie Mines in Alberta for the release of 67 million cubic metres of tailings waste into two creeks that feed into the Athabasca River. That spill was nearly 40,000 times smaller than the Mount Polley disaster. Of that total, $3.5 million was paid in federal penalties, with the additional $900,000 paid in provincial fines.

The third largest fine of $3.4 million was handed out to Teck Metals for three offences under the Fisheries Act after the company released effluent into B.C.’s Columbia River.

Mount Polley Disaster Didn’t Change the Way Mining is Done in B.C.

The absence of provincial fines or charges in the wake of the Mount Polley mine spill worries Nikki Skuce, director of Northern Confluence, an initiative that aims to improve land-use decisions in B.C. watersheds.

“It just seems incredible for what is called the largest environmental disaster in B.C.’s history, there are no fines, no charges, no penalties,” Skuce told DeSmog Canada.

“Our laws are that weak.”

Further increasing concern is the fact best practices, including recommendations made by the Independent Expert Panel on Mount Polley, haven’t consistently been applied in the approval of new mines along the B.C./Alaska border.

Ten new mines are approved or under construction along the B.C.-Alberta border, including Imperial Metals’ Red Chris mine which was approved with a wet tailings pond impoundment similar in design to Mount Polley.

After the Mount Polley tailings spill, experts recommended the use of safer, but more costly, dry stack tailings.

“The Independent Expert Panel on Mount Polley concluded that we can expect two failures every decade if ‘business as usual continues,’ ” Skuce said, adding multiple wet tailings impoundments have been approved at mines of much greater scale than Mount Polley.

“With no full bonding requirements and potential fines low under B.C. and federal laws, companies have few incentives to invest in techniques like dry stacking that lower reclamation costs and reduce risk of spills,” Skuce said.

“Why use best practices and best available technology if you may never be held accountable if disaster strikes?”

Image: Mount Polley mine disaster. Photo: Cariboo Regional District via Youtube

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As the three-year anniversary of the Mount Polley mine disaster approaches, so too does the deadline for the province to lay any charges against mine owner Imperial Metals.

Considered one of the worst environmental disasters in Canadian history, the failure of the Mount Polley tailings pond sent an estimated 25 million cubic metres of contaminated mine waste flooding into Quesnel Lake, a source of drinking water for local residents of Likely, B.C., on August 4, 2014.

“I would have expected something to have happened by now,” fisheries biologist and Likely resident Richard Holmes told DeSmog Canada. “I know they had a lot of information to sift through but it has been three years. I’m hopeful there will be some charges forthcoming.”

While the time limit for provincial charges runs out in August, federal charges, including for violations of the Fisheries Act, can be brought for another two years.

An investigation is ongoing by the Conservation Service Office, aided by the Department of Fisheries and Oceans and Environment and Climate Change Canada.  

Meanwhile, the B.C. government granted Mount Polley permission to drain the mine directly into Quesnel Lake, where the vast majority of the spilled mine waste remains to this day. The B.C. government also gave Imperial Metals the go-ahead to build the Red Chris Mine in northwestern B.C., with the same tailings technology used at Mount Polley — despite experts recommending otherwise.

“I think the mining company is ahead now,” Holmes said. “Everything seems to have fallen in their favour since this disaster. Before the disaster they were looking at building a water treatment facility. Now they have basically a large filter in place and they just release everything directly into the lake.”

“I’m sure they’re happy about that.”

Alberta Coal Mine Slapped with $4.5 Million Fine for 2013 Tailings Spill

The absence of fines for the Mount Polley disaster was highlighted by a recent $4.5 million penalty handed out to a coal mining company in Alberta for a 2013 spill that released an estimated 670 cubic metres of tailings into tributaries of the Athabasca River. That spill was nearly 40,000 times smaller than the Mount Polley disaster.

Last month, the company responsible for the spill, Prairie Mines and Royalty, pleaded guilty to two violations of the federal Fisheries Act as well as one violation of the Alberta Environmental Protection and Enhancement Act.

Over $1 million in federal fines were used to fund research for fish habitat and recovery while an additional $2.1 million was paid to the Environmental Damages Fund.

Provincially, the company paid $363,000 in fines toward a dam research project considering the safe storage of water at coal mines as well as $370,000 for an environmental education project for indigenous youth, the CBC reports.

Ugo Lapointe, Canadian program coordinator for MiningWatch Canada, said Mount Polley could still face similar repercussions in B.C.

“It took nearly four years to see those charges brought forward in the case of the coal spill,” Lapointe told DeSmog Canada. “So, technically, Mount Polley timing is still comparable.”

However, Lapointe added, a $4.5 million fine may not be enough to encourage large mining corporations to change the quality of mine management.

He added the maximum penalty for violating the federal fisheries act is $12 million, $6 million for causing harm to fish and fish habitat and $6 million for dumping deleterious substances without a permit.

MiningWatch brought a private prosecution against the Mount Polley Mining Corporation and the B.C. government for violations of the Fisheries Act last fall but the federal government asked the courts to stay the charges, a request that was made before MiningWatch was given the opportunity to present evidence. The case was dismissed this spring.

“The federal government is currently reviewing its Fisheries Act,” Lapointe said. “We think it is also time it reviews the fines and possible criminal charges for those responsible of polluting Canadian waterways and aquatic habitats.”

No Charges, No Fines For #MountPolley Mine Disaster as Three-Year Legal Deadline Approaches https://t.co/yk0H3yOBiC #bcpoli @jjhorgan

— DeSmog Canada (@DeSmogCanada) July 23, 2017

Underfunded Liability for B.C. Mines an Estimated $1.5 Billion

B.C. taxpayers bear the lion’s share of liability stemming from the province’s many mines.

A 2016 study conducted by economist Robyn Allan for the Union of B.C. Indian Chiefs found financial assurance policies for mines are “woefully inadequate” leaving more than $1.5 billion in underfunded liability on the shoulders of everyday British Columbians.

The exact costs incurred by mines, for expenses like environmental disasters like Mount Polley as well as for reclamation of abandoned mines, is no longer made available to British Columbians, Allan found, stating the price tag could be even higher.

British Columbians were on the hook for an estimated $40 million in cleanup and reclamation costs for the Mount Polley mine spill.

There are more than 120 tailings dams in British Columbia and despite recommendations made to the B.C. government after the Mount Polley disaster, risky mine procedures, including the practice of storing mine waste in giant wet tailings ponds continues to this day.

Since the Mount Polley disaster three new mines have been approved with wet tailings impoundments, including the giant KSM mine in northwestern B.C. that was recently granted federal approval to construct a tailings dam in fish bearing waters.

At least 10 new mines are proposed or under construction along the B.C./Alaska border, leaving Alaskans concerned about the province’s poor record of mine management.

“There are examples all over the world of responsible mining and that should become law in B.C.” Holmes said.

“But I haven’t seen any of the laws change. They’ve had three years to change them and have had recommendations coming from the Mount Polley investigation panel,” he said.

“But nothing’s changed. If I was an Alaskan I would be really worried about B.C. mines.”

Holmes said he would be worried in particular about the Red Chris mine which is owned and operated by Imperial Metals, the company responsible for the Mount Polley mine, and which also uses wet tailings technology.

“I hope the new government in B.C. will address those concerns. We haven’t done a very good job of looking out for our neighbours.”

Image: The Mount Polley mine disaster, August 2014. Photo: Cariboo Regional District

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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

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Fallout from environmental assessments or development decisions that don’t meet the highest scientific standards will land on the shoulders of the younger generation, which is why Canada’s lack of scientific rigour and transparency must be addressed now, say more than 1,300 young scientists who have written an open letter to Prime Minister Justin Trudeau and six cabinet ministers.

“As the next generation of scientists in Canada, we are professionally and personally affected by how government evaluates the pros and cons of development, especially large-scale infrastructure and energy projects,” said lead author Aerin Jacob, a University of Victoria postdoctoral fellow who specializes in tradeoffs between conservation planning and sustainable development.

“Reviews based on limited or biased scientific information potentially put the environment and the well-being of Canadians at risk,” she said.

Trudeau has pledged to review environmental laws that were gutted by the former Conservative government and appointed a four-person panel to look at how to ensure assessments are based on sound science. Another five-member panel is holding consultations on how to reform the National Energy Board. And there’s also a review of the Fisheries Act underway.

Early-career researchers from universities across Canada, including the top 50 research universities, signed the letter.

Most of the researchers came of scientific age during the last decade, when the Harper government muzzled scientists, changed environmental protection laws — from the Fisheries Act to the Environmental Assessment Act — and downgraded the importance of science.

In the year since the election of the Liberal government, scientists have been encouraged by Trudeau’s promises of science-based decisions and openness, but there are continuing problems with processes and transparency, they say.

“We are concerned that current environmental assessments and regulatory decision-making processes lack scientific rigour, with significant consequences for the health and environment of all Canadians,” the letter says.

“Hundreds of scholars have decried weak Canadian environmental assessments and regulatory reviews and cautioned about the risks involved in large scale energy projects,” the letter says, pointing to tragedies such as the collapse of the mine tailings pond dam at Mount Polley.

Five Ways to Fix Environmental Reviews: Young Scientists to @JustinTrudeau https://t.co/fCYPq4CMdo #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) November 15, 2016

Caroline Fox, a postdoctoral fellow at Dalhousie University and co-author of the letter, said cumulative effects, including climate change, need to be considered when projects are under scrutiny.

It was one of the elements lacking during consideration of both the Enbridge Northern Gateway and Kinder Morgan Trans Mountain pipelines.

Other big questions are how regulators should reassess risks to respond to changing information and the best way of addressing gaps in knowledge that make it difficult to assess potential risks

Too often a proponent who cannot find information uses that gap to imply there is no risk, Jacob said.

“That’s a big problem.”

Five key recommendations from the researchers are:

1) Use the best available evidence “collected and interpreted without influence from those who stand to gain or lose from the conclusions.” In cases where there are knowledge gaps, information should be sought rather than conclusions drawn from limited information and decisions should be adapted if strong, new evidence is put forward.

2) All information from environmental assessments should be publicly available, including raw data. Ideally, such information should be collected in a free, searchable federal registry so conclusions can be verified and data can serve as a benchmark for future studies.

3) Cumulative environmental effects from past, present and future projects and activities should be considered, including global level effects where appropriate.

4) Prevent conflicts of interest by requiring public disclosure as “greater transparency will elevate public trust that decisions are based on evidence, knowledge and values.”

5) Develop explicit decision-making criteria and provide a full, transparent rationale of factors considered including risks weighed and alternatives considered. Trade-offs should be thoroughly and openly explained.

Fox and Jacob plan to make presentations to the panels looking at revamping legislation and hope that they can have in-person meetings with Trudeau or his ministers to emphasize the importance of science.

“We are passionate about using our scientific knowledge and training to serve the public good,” says the letter.

Image: Mount Polley tailings dam collapse.

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Thirteen years ago, Canada’s Department of Fisheries and Oceans (DFO) issued almost 700 authorizations to projects that would negatively impact fish habitat, mostly in the resource extraction sector: forestry, mining, oil and gas.

By last fiscal year, that number had dropped to 74.

One would think that’s a positive sign. Perhaps the DFO approved far fewer projects, echoing its ambitious 1986 commitment to “no net loss” of fish habitat?

That wasn’t the case.

Thanks to a number of changes — mostly via the “Environmental Process Modernization Plan” of the mid-2000s and the Conservative Party’s industry-led gutting of the Fisheries Act in 2012 — most projects are now “self-assessed” by proponents.

Over the same span, the DFO’s budget was repeatedly slashed, increasingly undermining the department’s ability to monitor and enforce contraventions with “boots on the ground.”

“Harm is happening at the same levels that it always has been,” says Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental, water and natural resources law. “It’s just that fewer and fewer proponents are coming to DFO and asking for authorization. That’s the reality on the ground.”

The federal government is currently reviewing Canada’s fish habitat protection regime via a standing committee and public consultations, with recommendations expected in early 2017.

Its verdict could determine the fate of millions of trout, salmon, pike, bass and halibut, which could in turn impact the future of projects like the Mount Polley mine, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG export terminal.

Fish Habitat No Longer Explicitly Protected

The specifics of fish habitat protection are very complex, involving lengthy acronyms, highly precise wording and subsections of subsections.

Such details also matter a great deal.

Maude Barlow of the Council of Canadians and Mark Mattson of the Lake Ontario Waterkeeper argued in the 2014 that “the Fisheries Act was arguably the most important piece of anti-pollution legislation in Canada,” while Linda Nowlan of the WWF described it as “Canada’s strongest environmental law.”

There’s a reason that Barlow and Mattson phrased it in the past tense. As part of the Conservative government’s overhaul of environmental assessment processes via its infamous 2012 omnibus bill, Section 35 of the Fisheries Act was completely rephrased.

No longer did it refer to the “harmful alteration, disruption or destruction of fish habitat,” known as HADD. Instead, the act prohibited “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” with “serious harm” defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat,” known as as DPAD.

The difference between HADD and DPAD may seem small. But there’s a good reason that 625 scientists signed a letter to Stephen Harper in 2012 opposing the change.

The act no longer explicitly prohibits damage to fish habitat. Instead, it focuses on protecting “fisheries” and muddies the waters with the idea of a “permanent alteration.” This meant that project proponents don’t have to be overly concerned about the DFO cracking down as the concept of “permanent harm” is so ambiguous.

“It’s a lot easier to look at a stream or river or marine area and decide the habitat has been ‘altered, disturbed or destroyed’ rather than, you know, finding the dead fish and tying that back to a particular activity like somebody bulldozing the side of the stream or something,” says Nowlan, who now works as staff counsel at West Coast Environmental Law.

DFO Gave Self-Assessment Powers to Companies

It’s not like all was well pre-2012.

Olszynski says the number of referrals (which he describes as “inquiries or authorization requests from proponents”) gradually dropped from 13,000 to fewer than 3,500 between 2003 and 2014, accompanying the fall in actual authorizations. At that time, any authorization by the DFO triggered a mandatory environmental assessment (EA).

However, the DFO didn’t have the capacity to conduct basic screening for every project, let alone a full EA as mandated by the Canadian Environment Assessment Agency.

That meant that companies were largely responsible for ensuring that fish habitat was protected with very little oversight, especially in the North.

Can Canada Save Its Fish Habitat Before It’s Too Late? https://t.co/HqMiE7wbdc #cdnpoli #FisheriesAct @WCELaw @molszyns @nikkiskuce pic.twitter.com/bHqYTgLHJD

— DeSmog Canada (@DeSmogCanada) November 14, 2016

Cumulative Effects of Thousands of ‘Minor’ Projects Unchartered

Even that meagre voluntary requirement disappeared in 2012. Today, proponents can’t notify the DFO of proposed projects even if they want to: the system has since been replaced with a “self-review” website that provides information about what projects do and don’t require authorization.

Although the new Fisheries Act wasn’t actually implemented until November 2013, the number of referrals to the DFO dropped dramatically after it was announced in 2012, which Nowlan says “sent a message out to the world that habitat wasn’t as important.”

That was compounded by the aforementioned decline in enforcement, as well as a failure to increase penalties to a level that actually deters bad behaviour.

“In 2012, a big shift was instead of having habitat biologists and protection officers on the ground, out there, able to give fines and all the rest of it, you have people either fired or shifted to different positions,” says Nikki Skuce, project director of Northern Confluence. “There was a whole bunch of offloads.”

Nowlan says there haven’t been any prosecutions for fish habitat damage in Canada since, which is “quite astonishing.”

This has also resulted in even less information available to the DFO. One of the major impacts of this is the inability to assess cumulative effects of projects, such as how a series of small individual withdrawals of water from a river or stream changes flow rate. Together, thousands of minor projects could have massive combined impacts on fish habitat.

If actually tracked, such cumulative effects could be input into databases analyzed via maps and GIS software. Olszynski says that, eventually, the government could begin to tailor regulatory regimes and offsetting requirements to what’s happening on the ground.

“Over a couple of years, hopefully, DFO would start to develop a better sense of the activity on the watershed,” he says. “That’s part of that ability then to finally answer the question that DFO has never been able to answer, which is ‘what’s happening with fish habitat in Canada?’ ”

‘You Have to Have Habitat to Protect Fish’

There are many things the Standing Committee on Fisheries and Oceans could recommend to the Minister of Fisheries and Oceans Dominic LeBlanc to correct some of these issues.

Rephrase Section 35 to refer to explicitly refer to habitat destruction. Alter the act to account for cumulative effects. Commit far more funding to the DFO for monitoring and enforcement to help create a sense that someone’s paying attention; Skuce notes it’s also important to retrain staff to know what to look for and ask the right questions.

Establish a means for proponents of “low-risk” projects to report progress to the DFO. Create a public registry of authorizations, with the long-term goal of crafting appropriate regulations that respond to real-world events. Work with Indigenous nations under the terms of the the United Nations Declaration on the Rights of Indigenous Peoples.

Many seem optimistic the government will make the most of the opportunity to restore protections to pre-2012 levels and exceed them with “modern safeguards.”

Skuce also notes the minister’s father, Roméo LeBlanc, was responsible for implementing habitat protection in the first place in 1977 and that she hopes his son can “do the same thing but even better.”

“It’s such a no-brainer,” Skuce says. “You have to protect habitat to protect fish. The sooner they can do it the better as we’re seeing declining salmon stock and projects being permitted. We’d really like to see this happen sooner rather than later.”

Image: Freshwaters Limited

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A new report released Wednesday chronicles the changes made to Canada’s environmental laws under the federal Conservatives since they formed government in 2011.

The report, released by West Coast Environmental Law and the Quebec Environmental Law Centre, highlights “the repeal or amendment of most of Canada’s foundational environmental laws since 2011” and suggests many of the changes were a “gift to industry.”

“The record suggests that industry lobbied hard for removing environmental protections that it believed were impeding business,” the report states.

Major changes include the weakening of the Navigable Waters Protection Act, which removed 99 per cent of Canada’s lakes and rivers from protection, as well as changes to the Fisheries Act and the Species at Risk Act.

Weakening of the Canadian Environmental Assessment Act means approximately 90 per cent of major industry projects that would have undergone a federal review no longer will, according to the report.

Karine Peloffy, director general of the Quebec Environmental Law Centre, said Canada’s environmental legislation is intrinsically tied into the fabric of the country’s democracy.

“Our waters, species, and our very democracy have been put at risk by changes made to our environmental laws since 2011,” Peloffy said.

“When these legal changes were first brought in, we could only speculate about the impacts they would have on Canadians and the environment. Unfortunately, our analysis indicates that our fears have been borne out on the ground.”

Summary of environmental law changes from Canada's Track Record on Environmental Laws 2011-2015.

The majority of the legal changes were pushed through via omnibus budget legislation, something the current Conservative government has employed more than any previous government.

The report refers to omnibus budget bill C-38 (voting record here) and C-45 (voting record here) as “two critical blows” to environmental law “in order to streamline approval processes for risky or controversial industrial activities.”

“Basically all of the main changes that were made to federal environmental laws in those two omnibus budget bills, C-38 and C-45, were made at the request of industry,” West Coast Environmental Law Association staff counsel Anna Johnston, author of the report, told DeSmog Canada.

“We have the evidence to show that.”

The report is accompanied by a comparison of federal party platforms as they relate to environmental law (see below).

Platform promises put forward by the NDP, the Green Party and the Liberal Party reflect the public’s concern about the way environmental laws have been altered in recent years.

Johnston said the result of weaker environmental laws is that the public is pushed out of the democratic process.

“I think there’s a lot in the three platforms about that — about including Aboriginal peoples, the public and other stakeholders groups — not just industry — in developing and ensuring the implementation of environmental laws.”

Changes made to the Canadian Environmental Assessment Act limit public participation to “interested parties” — those who can demonstrate they are “directly affected” by a project or have relevant expertise that relates to the project.

As a result of this law, hundreds of British Columbians were barred from participating in the review process for the expansion of the Kinder Morgan Trans Mountain pipeline, leading to a loss of public confidence in the process.

Johnston said that loss of confidence in process has led to significant social unrest in Canada.

“If you have a process that is a sham process the public is going to feel ripped off and eventually they are going to find a way to have their voices heard,” she said. “Which is why we see people getting arrested on Burnaby Mountain, forming protests up in Fort St. John against Site C, and the formation of Idle No More.”

Johnston said stronger environmental laws that carve out a space for public participation, on the other hand, help alleviate this kind of social distress.

“With meaningful participation, even if people don’t agree with the end results, they feel like they’ve had their concerns heard.” 

“I think that tends to reduce the amount of civil disobedience and the amount of proceedings brought to the courts. And I think it results in better assessments, because you have more information and evidence and testing of evidence,” Johnston said.  

Party platform comparisons from West Coast Environmental Law and the Quebec Environmental Law Centre can be seen below. Click on images for full report:

Image: Chris Yakimov via Flickr

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The U.S. and Mexico appear to have joined Canada in its fight to prevent a North American Free Trade Agreement (NAFTA) investigation of the more than 176 square kilometres of tailings ponds holding waste from the Alberta oilsands near Fort McMurray.

In 2010 a group of citizens and environmental groups petitioned NAFTA’s Commission on Environmental Cooperation to investigate whether Canada is breaking its own federal laws, in particular the Fisheries Act, by failing to adequately manage the massive tailings ponds which hold a toxic mixture of water, silt and chemicals.

“It was important for us to know whether this was happening and whether environmental laws were being broken and whether the government is upholding those laws or ignoring them,” Dale Marshall from Environmental Defence, one of the organizations behind the compliant, said.

A 2012 federal study confirmed the tailings ponds are seeping waste into the local environment and Athabasca River. In 2013 an internal memo prepared for then Natural Resources Minister Joe Oliver confirmed groundwater toxins related to bitumen extraction and processing are migrating from the tailings ponds.

“The studies have, for the first time, detected potentially harmful, mining-related organic acid contaminants in groundwater outside a long-established out-of-pit tailings pond,” the memo reads. “This finding is consistent with publicly available technical reports of seepage (both projected in theory, and detected in practice).”

A separate Environment Canada study released in late 2014 confirmed tailings ponds emit toxins into the atmosphere at rates nearly five times higher than previously reported.

The NAFTA environmental commission was established in 1994 to investigate public concerns and resolve environmental disputes related to international trade in Canada, the U.S. and Mexico.

A decision on whether or not to investigate complaints is made by a council comprised of environmental ministers from the three countries. A vote on whether or not to recommend a ‘factual record’ or in-depth investigation is expected to come down within the next week.

Yet in an email to the CBC Environment Canada spokesman Danny Kingsberry said “through a council resolution in December 2014, Canada, Mexico and the U.S. unanimously voted to terminate the submission.”

The statement raised concerns that Canada has already guaranteed success in its protracted fight against the investigation even though the official vote has yet to take place. U.S. and Canadians officials described the statement as “highly unusual” although Canada’s effort to shut down the investigation has been explicit throughout the process.

Previously Dan McDougall, the assistant deputy minister for Environment Canada’s international affairs branch, instructed the commission to “proceed no further with this submission.” McDougall argued a related pending court case ruled out the need for an investigation. When the commission pushed back, McDougall instructed the body to “cease this analysis.”

According to Hugh Benevides, legal officer for the commission, Canada’s efforts to thwart the investigation are unprecedented.

“To my knowledge we have never received such a firm position as we have from Canada as we have in this case,” he told the CBC. “I think it’s safe to say it’s a new approach.”

Canada has blocked previous NAFTA investigations, however, aided in part by Mexico’s vote. In 2014 Canada prevented two investigations, one into B.C. salmon farms and the other into the protection of polar bears.

According to Benevides the council has successfully stopped four investigations in the last 20 years. If Canada prevents an investigation of the oilsands it would bring the total to five, the majority of which will be led by Canada within the last three years.

Debra Steger, international trade law expert at the University of Ottawa, told the CBC that countries are eager to avoid this kind of oversight.

“[A NAFTA investigation] produces a report that can be critical of what the government is doing and no government wants that scrutiny,” she said

Steger added this is especially the case with such politically contentious issues as the Alberta oilsands.

“This is an issue that the three parties probably just don’t want to go too near at this point,” she said.

For Environmental Defence’s Marshall the blocked investigation has everything to do with the pending Keystone XL pipeline decision south of the border.

“It’s clear that President Obama is looking at Canada’s record when he is thinking about approving or not approving certain pipelines going through the U.S.,” he said. “If this is one more stain on Canada’s record then that plays into his decision potentially.”

A vote on the tailings pond investigation is expected as soon as Friday.

Image Credit: Tailings pond at Suncor mining site by Alex MacLean.

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The Harper government followed the advice of industry associations when making controversial changes to the Fisheries Act in the 2012 omnibus budget bills, documents relased through access to information legislation reveal.

Gloria Galloway writes for the Globe and Mail that in 2010, "the High Park Group consulting firm was commissioned by the Department of Fisheries and Oceans (DFO) to gather industry and business observations about the habitat protection provisions of the Fisheries Act."

The released documents show that phrasing regarding changes to fisheries protections "suggest that wording was offered by industry associations," according to Galloway.

Negative feedback from the 23 organizations consulted, including the Canadian Electricity Association (CEA), the Canadian Hydropower Association (CHA) and the Saskatchewan Chamber of Commerce (SKCC), correlates with changes made to legislation protecting fish and their habitats.

For example, the consultant's report said that "CEA/CHA and SKCC call for modification of the act's definition of 'fishery' to clarify that it refers to 'commercial, recreational, subsistence or aboriginal use of fish as a resource."

One of the biggest changes made in Bill C-38 was, as Galloway points out, the removal of "broad protections that covered all fish habitats," narrowing the focus of the law to protect only fish "that are part of a commercial, recreational or aboriginal fisheries, or to fish that support such a fishery."

Incidentally, the High Park Group reportedly noted that there was a "lack of cogent and substantive documentation of industry positions on the issue" of concerns about the pre-2012 Fisheries Act, as well as a lack of evidence to back up claims including "that it was too unpredictable, that it caused considerable barriers to infrastructure investment, and that it increased regulatory costs and timelines."

The Department of Fisheries and Oceans didn't neglect to also consult with environmental groups about the Fisheries Act, having done so between 2006 and 2009. It appears feedback from environmental groups did not figure as heavily in the changes ultimately made.

In fact, another report released by the department under access to information said that environmental groups called the Fisheries Act "one of the strongest laws in Canada that can be used to protect our environment" and called for it to be strengthened and enforced.

Andrew Gage of West Coast Environmental Law, one of the environmental groups consulted by the DFO, said the Harper Conservatives are "a government listening only to industry concerns."

The DFO reportedly said in an e-mail that they're "still focusing on preserving fish habitat," but using a "common-sense approach that focuses on managing threats to Canada's recreational, commercial and aboriginal fisheries and the fish and fish habitat on which they depend."

Critics of the changes to the Fisheries Act include Green Party Leader Elizabeth May, who said the DFO created "a new definition for what a fishery is and completely [ignored] the comments from a wide consultation from people on the ground who are actually protecting the fishery."

This isn't the first time that the Harper government has proven its commitment to putting 'natural resources development' and industry interests ahead of environmental protection.

Other documents released through access to information requests have already revealed that the federal government solicited industry support for environmental reforms written into the Omnibus Budget Bill C-38. Additonal documents show the government made pipeline development a top priority for that bill, at the fossil fuel industry's request, and further colluded with the oil and gas industry when tweaking the bill's environmental legislation and industrial project review process.

Image Credit: Geoffrey Kehrig / Flickr

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