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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The B.C. Ministry of Environment has quietly granted the Mount Polley Mining Corporation permission to drain mining waste directly into Quesnel Lake, B.C.’s deepest fjord lake and a source of drinking water for residents of Likely, B.C., as part of a “long-term water management plan.”

The wastewater discharge permit comes nearly three years after the collapse of the Mount Polley mine tailings pond spilled an estimated 25 million cubic metres of mining waste into Quesnel Lake, in what is considered the worst mining disaster in Canadian history.

No charges and no fines have been laid for the spill that cost B.C. taxpayers an estimated $40 million in cleanup costs and that B.C.’s chief mine inspector, Al Hoffman, found was the result of “poor practices” and “non-compliances.”

Some critics feel the new wastewater discharge permit simply grants Mount Polley the permission to continue polluting Quesnel Lake.

“The permit really adds insult to injury,” said Nikki Skuce, project director for Northern Confluence, an initiative based out of Smithers that aims to improve land-use decisions in B.C.’s salmon watersheds.

“Mount Polley still hasn’t cleaned the initial spill up. It’s still visible there in the lake,” Skuce said.

The permit grants Mount Polley, owned by Imperial Metals, permission to release diluted wastewater collected in the mine’s drainage ditches to be piped deep into Quesnel Lake 45 metres below the surface.

“To the layperson that might sound okay, but in digging down deeper what Imperial Metals asked for was for a huge increase in the amount of heavy metals, like selenium, copper, arsenic and others, they can release into the lake,” Skuce said.

“They come up with this plan and it’s to continue pollution, to allow for long-term pollution to go into Quesnel Lake.”

“We’re only two years into the disaster and it is not clear what the impacts are. Salmon run in four year cycles and yet they’re permitting more pollution.”

B.C. Quietly Grants #MountPolley Mine Permit to Pipe Mine Waste Directly Into Quesnel Lake #bcpoli https://t.co/Gpv8yg97dK

— DeSmog Canada (@DeSmogCanada) April 17, 2017

B.C. Government Unaware ‘What True Consultation Means,’ Say Locals

In a press release, the B.C. Ministry of Environment said the permit was granted after extensive community and First Nations consultation.

Local municipalities as well as local First Nations were vocally against the permit, however.

In a submission to the B.C. government, watchdog group MiningWatch argued the province should reject the long-term discharge permit.

“Ongoing concerns raised by members of the Xat’sull (Soda Creek) and T’exelc (Williams Lake Indian Bands), as well as formal opposition taken by local organization such as the Likely Chamber of Commerce, Concerned Citizens of Quesnel Lake, and local members of the First Nation Women for Responsible Mining clearly indicate that [Mount Polley’s] long-term water management plan, as currently proposed, is unacceptable.”

Jacinda Mack from the Xat’sull First Nation gathered 250 signatures from predominantly local First Nations who opposed the plan.

“There was extensive consultation,” Richard Holmes, fisheries biologist and resident of Likely, B.C., told DeSmog Canada, “however, the government, who should be governing fairly for all, has lost its way.”

“The government is bound by extremely weak regulations and law that applies to mining and the company took full advantage of this in spite of the overall opposition by the First Nations and especially the local residents who call this area their home.”

“The provincial government has no idea what true consultation with action really means. Consultation to them remains a catchphrase term meaning ‘this is what we are going to approve…thanks for listening to our plan,’ “ Holmes said.

“I would have supported their efforts to continue to mine if they were better environmental stewards,” he said.

Skuce, who has participated in numerous community consultation processes related to B.C. mines, said communities often feel government engagement is one-sided.

“Government often speaks about robust public engagements with communities and First Nations but quite often it’s an extremely technical one-way engagement,” Skuce, who participated in the public engagement process, said.

“It’s not a process that is meant to make people’s voices heard.”

After submitting comments to the Ministry of Environment during the public consultation process, Skuce was told by the ministry to direct her questions about the permit directly to Mount Polley.

“What is not clear is where my questions go. Are they just sent to the company? Does the government monitor the company’s intake and response to those questions?” Skuce said.

“And who is holding this company to account? Just us, the public?”

“It really sheds a light on the extent to which there is regulatory capture in this province.”

Holmes said the original permit for the Mount Polley mine in the 1990s prevented the company from discharging water from the site into nearby lakes.

“And look where we are now,” he said. “We feel deceived.”

Imperial Metals Major B.C. Liberal Donor

Since 2005 Imperial Metals and the Mount Polley Mining Corporation have donated $195,010 to the B.C. Liberals. B.C.’s political donation rules are some of the weakest in the country and place no limits on corporate donations.

Ugo Lapointe, MiningWatch Canada’s program coordinator, said it is concerning that major political donor Imperial Metals has not been held accountable for the tailings pond collapse.

“The key message to Canadians is this was the biggest mining spill in Canadian history and there have been zero sanctions and zero fines, and certainly that’s not because of lack of evidence of damage to the environment,” Lapointe told DeSmog Canada in a previous interview.

MiningWatch launched a private prosecution against Imperial Metals and the B.C. government for violation of the federal Fisheries Act. The company escaped those charges recently, after the case was blocked by federal government lawyers.

Holmes said the lack of accountability in B.C. for companies like Imperial Metals, which are also major political donors, is troubling.

“It’s a worrisome trend in a democracy such as in Canada when the corporations dictate the outcome of government decisions through their lobbying for weaker regulations to say nothing of the scandalous practice of corporate donations to our Liberal government,” he said.

Skuce said the high level of political donations in the province appear to give mining companies outsized political influence.

“It’s hard for the public to have confidence that the high contributions these companies make don’t have influence in the process,” she said, adding the circumstances make British Columbians suspicious of favourable industry permits.

“What we have in B.C. is a government trying to say to the public that everything is okay now, that they’ve fixed everything. But the story on the ground is that they’ve continued permitting pollution and aren’t going to hold the company accountable for the spill,” Skuce said.

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B.C. was recently labelled the “Wild West” in a New York Times article for our lack of financial rules or limits around political donations. While mining companies and their executives regularly fall within the top donors’ list to the B.C. Liberal Party, they have benefited from this notion of the Wild West for well over a century. 

In fact, B.C.’s mining laws were created more than 150 years ago during the gold-rush era of the 1850s. These laws were largely created by miners themselves to help guarantee unfettered access to new lands by creating the right of “free entry,” and were part of the strategy to help settle the colony. Today, mining activity is still given priority over virtually all other land uses in B.C.

In fact, the process for staking a claim has only gotten easier. Are you 18 years old, have $25 and access to a computer? Click and you have a claim staked anywhere — on private property, First Nations hunting grounds, key tourism areas, important salmon habitat or wildlife management areas. Mining activities are off-limits only in parks, under buildings and at certain archeological sites. In other words, mining exploration can take place in over 82 per cent of the province.

This is the core of the problem. The right of free entry hasn’t evolved with environmental and societal norms. Mining gets a free pass from zoning bylaws and land-use plans that apply to other sectors. Until we change the free-entry system and stop giving privilege to the mining industry, we will see conflict.

A farming family learned the hard way when their property just outside of Kamloops was staked and they could do nothing to stop their property from turning into a strip-mine for kitty litter. Despite the family’s ownership of the land, they are indefinitely excluded from entering, using, occupying or enjoying their property while it’s being mined and received a mere $60,000 in compensation.

The municipal government, First Nations and several community groups in Kamloops have expressed concern about the proposed Ajax mine within the municipal boundaries. Community members are predominantly concerned about health and water-quality issues, but B.C.’s Mineral Tenure Act provides no power for local governments to prevent mineral claims from being staked, mining leases from being granted or to stop a mine from being developed within city limits.

Similarly, proponents aren’t required to engage with First Nations before staking a claim or entering the land. The B.C. government has taken the position that the staking of mineral claims doesn’t trigger a constitutional duty to consult. The result is a number of conflicts and multiple policies as First Nations push back and demand otherwise. Ironically, this has led the Association of Mineral Exploration for B.C. lobbying for tax credits at both the federal and provincial levels (of which they enjoy many) to now cover costs incurred from “engaging with aboriginal communities.”

In 2017, the rules and regulations stemming from the beginnings of the “Wild West” no longer work. We need to establish common-sense restrictions on where mineral claims and mining leases are allowed. Establishing certain areas, such as key salmon habitat, as no-go zones for mining will go a long way to avoid opposition from First Nations and local communities.

The Association of Mineral Exploration for B.C. is gathering in Vancouver this week and lobbying for more and easier access to public lands. But increasing limits and an end to free-entry legislation will be what substantially reduces risks to the industry. Ensuring First Nations, private landowners and the public have a more meaningful role in decisions about mineral tenure has the potential to bring more balance to land-use decisions and increase the likelihood that future mining projects are located in places, and carried out in a manner, that have the social licence to proceed. It’s time for B.C.’s outdated laws to go.

Nikki Skuce is director of Northern Confluence, an initiative based out of Smithers that aims to improve land-use decisions in B.C.’s salmon watersheds. 

Image: Coal mining in B.C.'s Flathead Valley. Photo: Garth Lenz, used with permission

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British Columbia’s environmental review process simply isn’t strong enough to protect Alaskan communities and rivers from the province’s mining boom, Jill Weitz, American campaigner with Salmon Beyond Borders, recently told a panel reviewing Canada’s environmental assessment process.

Weitz, who works to protect Alaska’s wild salmon runs, traveled to Prince Rupert to tell a trio of experts appointed by the federal government how a more robust federal environmental assessment process could help address transboundary concerns arising in the wake of B.C.’s major push for new mines.

The federally appointed panel is currently reviewing the environmental assessment process managed by the Canadian Environmental Assessment Agency which is responsible for reviewing major development projects including pipelines, oil and gas development and mines. Changes made under the previous federal government excluded major mines in British Columbia from the federal environmental assessment process — a legislative change Weitz and others say left Alaska in an uncomfortable position.

The transboundary region traversing the border of northwest B.C. and southeast Alaska is home to three major salmon rivers, the Taku, Stikine and Unuk. The rivers flow into Alaska from an area in B.C. that is home to 10 new mines either proposed or already under construction.

Weitz said one of those mines, the controversial KSM mine, is the largest open pit mine in North America.

Despite living directly downstream from the mine, Alaskans were frustratingly prevented from meaningful participation in the project’s environmental review, Weitz told DeSmog Canada.

“The project would be located 22 miles upstream from the Alaska border,” she said. “The environmental assessment process determined there would be no significant environmental impacts.”

Weitz said this assessment was made despite the fact that the term ‘environmental impacts’ was not precisely defined and there was a problematic lack of the basic information needed to measure those impacts going forward.

“Not only is the B.C. process flawed in terms of identifying whether KSM would have significant environmental impacts but the baseline data needed to say that — it doesn’t exist.”

Weitz said Salmon Beyond Borders began campaigning on the issues of transboundary watersheds and the KSM mine after Alaskans from many different backgrounds start voicing their concern about the project.

A 2014 tailings pond collapse at the Mount Polley mine raised serious concerns about B.C.’s mine management and permitting process.

Many Alaskans representing fishing, tourism and indigenous groups voiced fears that something similar to the Mount Polley disaster, which left the pristine Quesnel Lake watershed contaminated with 24 million cubic metres of mining waste, could happen in U.S. waters.

The KSM tailings pond is projected to entail a massive 239-metre tailings dam, perched above the Bell Irving/Nass watershed in B.C. near the Sulpherets Creek, which runs into the Unuk River.

“We continue to push on the notion that there needs to be further transboundary watershed management in a shared way,” Weitz said.

In her presentation to the environmental assessment review panel, Weitz made the case that legislative changes made under the former Harper government that narrowed the purview of the Canadian Environmental Assessment Act increased the threat felt by southeast Alaskans.

Projects that have immediate implications for transboundary watersheds should automatically trigger federal environmental assessments, Weitz argued, saying the provincial process in B.C. is not comprehensive enough and does not consider cumulative impacts of industrialization in the region — a top concern for many scientists and conservation groups.

Weitz said although B.C. invited the participation of Alaskans in the KSM mine assessment, she felt like their input was ultimately ignored.

Provincial approval of the KSM mine in 2014 angered many Alaskans. Fifteen federally registered native tribes, as well as a number of non-governmental organizations, made formal requests for a joint provincial-federal review of the project’s approval.

That request was denied.

“There is no equity in this process,” Weitz said.

Nikki Skuce, who also presented to the panel on behalf of the Northern Confluence initiative out of Smithers, B.C., said even British Columbians feel the provincial review system is inadequate.

“Some of us here in the northwest have participated in some really faulty review processes,” Skuce told DeSmog Canada.

“In some cases it’s clear the decision on the project is made even before the process begins so these processes feel very tokenistic and often rely entirely on information from industry.”

Skuce said a serious review of Canada’s environmental assessment process should take into consideration how domestic projects can affect cross-border communities.

“For folks in southeast Alaska, if we’re going to consider impacting a water or airshed upstream, there should be a federal review where there is greater opportunity for those downstream or down-air communities.”

Skuce said Canada’s federal review process should honour international commitments, like Canada’s pledge to engage in a bilateral process to manage transboundary waters.

Skuce says improvements to the federal environmental assessment process could help restore public trust in the review system.

“This process should prioritize indigenous rights that Canada has promised to honour under the United Nations Declaration on the Rights of Indigenous Peoples,” Skuce said.

She added an emphasis on independent science is key to restoring trust in the process.

“We need to delineate the project proponent promoter from the project regulator,” she said.

“Right now you have the regulator cheerleading for the project. That needs to be taken out, separated out to help regain public trust.”

Skuce said she is feeling optimistic about the review of the federal environmental assessment process. The panel has worked hard to engage meaningfully with presenters, she said.

“With so many mining projects proposed in the northwest and given the potential transboundary impacts we need federal engagement,” she said.

“This is a good opportunity to look in-depth at cumulative impacts of development and at our bilateral agreement obligations with Alaska.”

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With the federal government’s decision on Enbridge’s Northern Gateway oil tanker and pipeline proposal set to come in the next three weeks, the political hot potato is set to be launched back into B.C. Premier Christy Clark’s lap any day now.

Throughout 2012 and 2013, Clark doled out a lot of tough talk when it came to Northern Gateway, going so far as to tell The Globe and Mail that pushing ahead with the pipeline would spur a “national political crisis.”

“Whether or not people supported the pipeline, they would band together to fight the federal government if they decided to intrude into British Columbia without our consent,” she told the newspaper in October 2012.

“This project can only go ahead if it has the social licence to do so. It can only get the social licence from the citizens of British Columbia.”

Speaking to Calgary university students the same month, Clark pointed out the B.C. government could withhold 60 different permits or refuse to hook pumping stations up to the province’s electrical grid.

“The thing is if British Columbia doesn’t give its consent to this, there is no way the federal government or anyone else in the country is going to be able to force it through. It just won’t happen,” Clark said.

These statements don’t leave a whole lot of room for Clark to manoeuvre, especially considering the Globe recently reported that none of her five conditions for approving heavy oil pipelines have been met.

It’s a point that hasn’t been overlooked by B.C. environment and democracy campaigners. Earlier this month, Forest Ethics Advocacy launched a new campaign called Stand Strong Christy.

“Thousands of British Columbians from across the province are sending messages calling on Premier Clark to continue opposing Northern Gateway and standing up for our watersheds, coast and children’s future,” said Nikki Skuce, ForestEthics Advocacy senior energy campaigner.

“With Harper’s likely approval of the pipeline, we need our premier to stand with the majority of B.C. and push back on ever getting Northern Gateway built.”

Meanwhile, another B.C. group is organizing for a citizens’ initiative to put the Enbridge pipeline to an HST-style vote if Clark reverses her position on the project. Dogwood Initiative reports it has 75 local teams collecting petition signatures in advance of the federal government’s decision.

“For this pipeline to be built, First Nations along the route as well as a democratic majority of British Columbians would have to support the project. Neither appears likely,” said Kai Nagata, Dogwood’s energy and democracy director, in a press release.

And another campaign, led by LeadNow and ForestEthics Advocacy, is targeting the 21 Conservative MPs in British Columbia who could feel the electoral fall-out in the next election if the feds green-light Northern Gateway.

While the feds certainly deserve to feel some heat, it’s Clark who the spotlight is likely to shine brightest on in the short-term given her election promise to “put B.C. first” and “stand strong” on her five conditions.

When the Northern Gateway announcement comes down, British Columbians are going to look to Clark to put her money where her mouth is — and it’s hard to see how she’s going to hand off the hot potato this time around.

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Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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