No Provincial Charges for Mount Polley Mine Spill, One of Largest Environmental Disasters in Canadian History

by Carol Linnitt / Desmog Canada

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

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

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

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

Sellars said the news came as a shock.

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

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

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

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

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

“This is setting a dangerous precedent.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“That certainly seems to be the case here.”