Following a February 2013 court hearing in Newfoundland, an East Coast environmental group is concerned that in the weeks or months to come — while it waits for the judge’s ruling — mining companies will continue to exploit a legislative loophole that allows them to strip Canadian lakes bare, and replace water with millions of tonnes of mining waste.
The Sandy Pond Alliance began its legal fight in 2010 to save Sandy Pond, a scenic 28-hectare freshwater lake on the Avalon Peninsula of Newfoundland. The Alliance vowed to scrap the addition of Schedule 2 to the Metal Mining Effluent Regulations under theFisheries Act. The Alliance’s legal argument is that the 2002 addition of Schedule 2 allows federal authorities to reclassify bodies of water into tailings ponds at mining companies’ request, effectively dodging all the environmental protection the Act provides. Instead, the Alliance says, bodies of water can be added to the Schedule 2 list, essentially issuing a corporate “get out of jail free card”, as Alliance lawyer Owen Myers puts it.
In Myers’s mind, Schedule 2 could have been legally classified as ultra vires from its inception — that is, the government essentially acting beyond its powers, he says. He thinks Schedule 2 provides a loophole contrary to the intent of the Fisheries Act, and provides a perfect example of legislating without debate or consultation. It’s a practice all too common for omnibus Bills, he says, when Ottawa has a penchant to engage in the “high-speed ramming” of environmental legislation through finance Bills.
“[Ottawa’s] made a regulatory regime that’s changed the statute,” Myers told EcoLog News. “They’ve got it backwards. It’s the statutory scheme that needs to go to Parliament and get debated. This goes way past what a regulation should be able to do. You have to have something in the Fisheries Act that will let you do this.”
After some two years of legal delays involving mining giant Vale Inco, the company vying for Sandy Pond, and the Mining Association of Canada, the Newfoundland Supreme Court in St John’s finally heard the Alliance’s case on February 27 and 28, 2013. The long delays enabled Vale the opportunity to move full speed ahead with its project, gutting Sandy Pond in Long Harbour and relocating some 1,400 fish to create a tailings pond for its $2-billion hydromet nickel processing facility.
During the two-year delay, Vale also fought for, and won, limited intervener status to share its position on the Schedule 2 case.
Mining waste is scheduled to be dumped at Sandy Pond later in 2013, so the Alliance knows that time is running out to save the scenic spot that has come to be a popular area for hunters and wilderness seekers. The Alliance is still hopeful that remediation will be an option if the judge rules that Schedule 2 is an unlawful loophole, and are now calling on the government of Newfoundland and Labrador to establish a well-funded remediation program to identify and prevent runoff from old tailings ponds and abandoned mining sites throughout the province.
“We are concerned about the potential for polluting the drinking water of unsuspecting and vulnerable communities located downstream from these locations,” said Fred Winsor, Sandy Pond Alliance board member, in a February 2013 public statement about the court case. “Many of these toxic tailings ponds are old and local residents may be unaware of their existence or what substances, if any, could leach into their water supplies.”
Even if it may be too late foe Sandy Pond, the Alliance believes the upcoming court ruling will act as a significant precedent for the fate of other Canadian lakes, some of which have already been proposed as mining waste areas for a number of corporations apart from Vale.
Vale did not respond to inquiries from EcoLog News, but the company has been questioned before about why it has not pursued less-impactful containment options for its mining waste. While Vale’s critics have suggested the mining company selected Sandy Pond because it offers a cheaper containment option, when compared to an artificial containment system, Vale has publicly insisted that Sandy Pond remains the most environmentally-friendly storage option for its mining waste, although it has not elaborated in any detail on that claim.
Vale has, however, taken some precautions at Sandy Pond. The company has already installed liners at the site, plus five monitoring wells that will allow Vale to regularly sample the site’s groundwater to ensure environmental compliance.
When Schedule 2 came out in late 2001 to early 2002, Myers says environmental groups were told it would be the federal government’s way of keeping a list to track Canadian lakes and rivers previously used to store mining waste. The federal government acknowledged that this was partly to protect companies from past dumping practices with those listed bodies of water.
Flash forward to 2006, Myers says, and healthy bodies of water began to show up on the Schedule 2 list.
To be precise, the federal government has now reclassified 14 bodies of water across Canada as Tailings Impoundment Areas. Another 12 bodies of water have been proposed for reclassification.
“This gives [Ottawa] authority not to just regulate fisheries, but wipe them out,” Myers said. “That’s a big departure from the theme of the Act, which is conservation.”
The Sandy Pond Alliance is not the first eco-action group to challenge Schedule 2. In September 2007, researcher Catherine Coumans from Mining Watch Canada launched a petition to the federal government questioning Schedule 2’s legality.
“There has been inadequate public consultation for subsequent proposed applications of Schedule 2 turning healthy lakes and rivers across Canada, including on indigenous land, into industrial waste dumps,” she stated in the petition.
In her petition, Coumans noted that Schedule 2 had “never been discussed in seven years of Environment Canada-led multi-stakeholder review of the Metal Mining Liquid Effluent Regulations.”
She says Schedule 2 made its first appearance in the Canada Gazette, a point echoed by Myers.
“The Cabinet just makes up regulations in secret and then launches them in the Canada Gazette,” he says.
In February 2008, Environment Canada responded to Coumans’ petition. Many of the replies note that the government thought there was in fact sufficient consultation for Schedule 2.
“The regulatory authority to designate water bodies as tailings impoundment areas (TIAs) existed in the [former] Metal Mining Liquid Effluent Regulations during the period 1977 to 2002,” said a letter signed by then-Minister of the Environment John Baird, addressed to Coumans. “Consultation on all aspects of the draft Metal Mining Effluent Regulations (MMER) took place prior to and as part of the Canada Gazette, Part I, public review process,” Baird added.
As all parties wait for the judge’s ruling on Schedule 2, Myers expects appeals regardless of the outcome.
“This is a case that has Supreme Court of Canada written all over it,” he says.