It’s imperative these waters stay pristine for generations to come.
Tuesday, June 25, 2019 1:08pm OPINION
The Taku, Stikine and Unuk are world-class transboundary rivers that originate in Northwest British Columbia (B.C.) and flow into Southeast Alaska. These iconic rivers and their watersheds are central to our fishing industry as well as tourism in Southeast. Importantly, they’ve also been centers of culture for thousands of years. It’s imperative for our economy and our people that these waters stay pristine for generations to come.
Virtually all of the U.S. portions of these watersheds have the highest level of U.S. federal protection. But our jurisdiction only goes to the border. On the other side, there are large-scale mining developments near the Canadian headwaters of these rivers. Some of these mines — particularly the defunct Tulsequah Chief Mine — have contributed to the release of hazardous material that could have impacts on our waters in Alaska. And the provincial B.C. government, which has primary authority over its environmental standards, has been moving entirely too slowly to act on the mining pollutants that risk our fisheries.
Recently, as a result of persistent pressure from the Alaska congressional delegation, the State Department and the State of Alaska, concrete action has been taken.
B.C. mining regulators have, at long last, taken the first step toward paying to clean up the Tulsequah Chief Mine that has been leaking acid runoff into Alaska waters for decades. In November, the B.C. Ministry of Energy, Mines and Petroleum Resources issued a request for proposals to remediate Tulsequah Chief and last month announced that they have awarded a contract to remediate the site.
This is good news, but it’s taken far too long to get to this point, something I stressed to Prime Minister Justin Trudeau at an event at the Canadian Embassy earlier this week.
When I first came into office, I was surprised that the Obama administration hadn’t pushed this issue harder with the Canadian government.
That began to change when Sen. Lisa Murkowski, Rep. Don Young and I wrote then-Secretary Rex Tillerson, urging the State Department to prioritize transboundary watersheds. Shortly thereafter, the Departments of State and Interior, and the EPA established an interagency working group to address concerns regarding B.C.’s mining activity in transboundary watersheds and to determine the specific mechanisms necessary to safeguard American economic interests and resources.
Last year, former Lt. Gov. Byron Mallott and I traveled to Ottawa to meet with senior Canadian officials to discuss transboundary mining. Together, we, along with the State Department, showed strong unity in fighting for Alaska’s interests. Specifically, we stressed the need for binding protections, joint water quality monitoring and financial assurances to ensure mine operators in B.C. will be held accountable for any impacts to transboundary water quality that might threaten Alaska. My direct dialogue with Canadian officials continues to this day, including conversations with Trudeau in 2016 and again this week.
We’re also working across the aisle with our colleagues to bring congressional resources to bear to help with the issue. Murkowski was able to recently appropriate $1.8 million to the Department of the Interior for stream gauges in transboundary rivers – which will provide better monitoring and water quality data. Further, we directed the U.S. Geological Survey to enter into a formal partnership with local tribes and other agencies to develop a long-term water quality strategy to address contamination risks in transboundary rivers.
Last week, Murkowski and I, along with senators from border states, wrote B.C. Premier John Horgan requesting that his government implement the same environmental standards and accountability for B.C. mining projects that are required in the United States.
It’s frustrating that Canada, a country that consistently advocates against development projects in Alaska — and touts itself as a global environmental leader — would resist responsible environmental actions when it comes to its own projects.
But the progress we’ve seen in the past few years indicates to me that — due to our combined, rigorous efforts — the neglect of these responsibilities by the Canadian government may now be giving way to meaningful engagement and collaboration toward safeguarding our shared waterways.
As Alaska’s senator, I’ll continue to do all I can to push the Canadians into taking actions to protect our waterways, our way of life and our people.
[Opinion: It’s time for Canada to clean up the polluting Tulsequah Chief Mine]
• Dan Sullivan, R-Alaska, is a U.S. Senator. My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire.
US senators press Horgan to clean up BC mine water
CAROLYN GRANT Jun. 18, 2019 1:30 a.m. NEWS
Late last week, the East Kootenay based environmental group, Wildsight, put out a press release saying eight U.S. senators from states neighbouring British Columbia are trying to press Premier John Horgan to clean up mine water pollution flowing across the border, primarily from Elk Valley coal mines.
The weakness of B.C.’s mining and related environmental laws were highlighted by the senators in their efforts to protect shared rivers from long-term water pollution from mines in B.C., the release says.
“B.C.’s archaic mining laws are still rooted in a wild west mentality,” said Calvin Sandborn, legal director of the Environmental Law Centre at the University of Victoria. “B.C. law makes it far too easy for mines to extract resources now, while leaving the clean-up to future generations and that puts rivers across the province, including many that flow into the US, at risk of long-term ecological disaster.”
Key issues highlighted by the senators include the lack of transparent, open data collection on water pollution and its impacts, the lack of binding water pollution limits, and B.C.’s unwillingness to fully address water pollution issues collaboratively. The senators’ letter is just the latest US action asking B.C. to clean up mining pollution in shared rivers. Such calls have been echoed by tribes and First Nations on every border, members of the U.S. House, the governors of Washington, Montana and Alaska, state legislators, municipalities, and others. Earlier this year, reacting to the lack of open data, U.S. federal lawmakers allocated US $1.8 million to monitor water quality in these four states’ transboundary rivers.
“We know we have a tremendous problem with contamination flowing from B.C.’s mining sector,” said Robyn Allan, former President and CEO of the Insurance Corporation of British Columbia. “B.C.’s own Auditor General has chided the province for our lax rules and lack of enforcement. We absolutely need to ensure British Columbia’s taxpayers don’t end up paying for industry shortfalls and to bring British Columbia’s mining practices into the 21st century, both for Canadians and for the U.S. citizens living downstream.”
After nearly four years, a B.C.-Montana process to set a shared pollution limit for Lake Koocanusa still hasn’t come to an agreement, while selenium levels have risen above both B.C. and the U.S. Environmental Protection Agency’s thresholds to protect fish from the reproduction disrupting effects.
“While the U.S. Endangered Species Act should protect bull trout in Lake Koocanusa and the rare white sturgeon downstream, because B.C. still doesn’t have any endangered species legislation, fish and other wildlife don’t have comparable protection here in B.C.” said Lars Sander-Green of Wildsight. “Endangered species legislation was an election promise from the NDP, but we’re still waiting.”
The US senators also highlight that these water pollution issues haven’t been dealt with through the long-standing Boundary Waters Treaty, which prohibits pollution of shared rivers. While delays in appointing commissioners to the International Joint Commission, set up to resolve disputes under the Treaty, have recently left the body unable to take action, appointments made in May 2019 now allow the Commission to continue their work.
“One big problem we have in B.C. is a very weak bonding system to make sure mines pay for clean up” said Sander-Green. “The amounts that mining companies have to provide in bonds are often wildly insufficient to deal with long-term water pollution problems—and that puts everything downstream at risk, on both sides of the border.”
Contacted for a response, the B.C. Ministry of Environment replied with the following information:
• Our government has received a letter on June 13th from 8 US Senators expressing concerns regarding U.S. – B.C. transboundary watersheds.
• We take the protection and preservation of our environment very seriously.
• That’s why we launched CleanBC, our climate plan to put our province on the path to a cleaner, better future with a low carbon economy that creates opportunities for all while protecting our clean, air, land and water. CleanBC makes us a leader in North American when it comes to clean energy plans.
• The relationship we have with our US counterparts goes beyond a shared border. We have shared interests, ideals, goals and a shared environment.
• The Province has developed a number of mechanisms to engage with our neighbouring jurisdictions including our Memorandum of Understanding with Alaska, our Transboundary Monitoring Task Group with Montana, and our Integrated Environmental Monitoring Program with Washington. We are committed to working closely with our transboundary neighbours to protect and enhance our shared environment and waterways.
• The MOU between British Columbia and Alaska recognizes and formalizes the mutual commitment to protect and enhance the shared environment, including trans-boundary rivers, watersheds and fisheries, for the benefit of both jurisdictions.
• The Statement of Cooperation on the Protection of Transboundary Waters (SoC) agreement between B.C. and Alaska establishes a bilateral working group, consisting of the commissioners of the Alaska Departments of Environmental Conservation, Fish and Game and Natural Resources and the deputy ministers of the British Columbia Ministries of Energy and Mines and Environment who will:
• Establish and oversee a Technical Working Group on water monitoring that will identify a reliable and accurate process for the collection, summary and distribution of baseline, regional and project-specific water quality data.
• Look for opportunities to build on and enhance participation in Environmental Assessments and Permitting relating to mines and development.
• Identify and share reports on mine discharges, operations and closure.
• The SOC is being implemented as planned. The Government of B.C. is working closely with the State of Alaska on mining proposals. Alaska is very much involved in the assessment and permitting of existing and proposed mines in the transboundary watersheds – Red Chris, Brucejack, Red Mountain.
• The Ministry of Energy, Mines and Petroleum Resources recently announced an additional $20 million investment over the next three years to facilitate the implementation of the Mines Competitiveness and Authorizations Division, making it completely independent of Mines Health, Safety and Enforcement Division within EMPR. This ensures clear separation that aligns with other provincial regulators including the Ministry of Environment and Climate Change Strategy.
• The Mines Health, Safety and Enforcement Division will include a greater number of mines inspectors and a new auditing function to increase industry safety. The division’s priorities will be focused on increased health, safety, compliance management and enforcement activities. A new compliance auditing and effectiveness monitoring team within the division will function as an independent oversight unit.
VANCOUVER—U.S. opposition to British Columbia’s mining practices ramped up this week as two coalitions called on the province to clean up its act.
The U.S. has had longstanding concerns about pollution from B.C. mines flowing into rivers that enter the country at both the northern and southern borders, affecting wildlife.
In a startling bipartisan move, eight U.S. senators — both Republicans and Democrats — addressed a letter to Premier John Horgan to urge him to reform the province’s mining industry. The letter dated June 13 highlighted both the weakness of B.C.’s mining and environmental laws along with a lack of international co-operation.
“We know we have a tremendous problem with contamination flowing from B.C.’s mining sector,” said Robyn Allan, former president and CEO of the Insurance Corporation of British Columbia, in a release.
“B.C.’s own auditor general has chided the province for our lax rules and lack of enforcement. We absolutely need to ensure … taxpayers don’t end up paying for industry shortfalls and to bring British Columbia’s mining practices into the 21st century.”
An auditor general report dated May 2016 suggested an abdication of government responsibility, finding that ministries had gaps in their resources, planning and tools and were not adequately monitoring and inspecting mines or enforcing regulations on companies.
Scientists say B.C.’s proposed environmental assessment process lacks scientific rigour, independence
Four years since Mount Polley mine disaster and no charges
Raw sewage dumped in Metro Vancouver waters saw five-year high in 2017
Waterways in the Kootenay watershed, which encompasses parts of Southern B.C., Montana and Idaho, were found to contain toxic concentrations of selenium, according to several Canadian and U.S. studies.
In 2013, Teck Resources, a mining company located in the Kootenay watershed, began what it said was a plan approved by the B.C. government to address the management of selenium in the Elk Valley watershed released by mining activities.
Last year, Teck Resources was ordered to pay $8 million to the Colville Confederated Tribes in the United States for decades of pollution that travelled through their territory.
And after almost four years of work, B.C. and Montana have yet to agree on a shared pollution limit, according to Lars Sander-Green of Wildsight, a B.C.-based environmental group.
Then in B.C.’s Northwest, Sander-Green said, acid drainage from a closed mine has been flowing for six decades into an Alaskan river, considered one of the most productive in the region for salmon.
The rights of Indigenous communities is a growing issue. Recently, 15 of Southeast Alaska’s 19 federally recognized tribes filed a human-rights petition about upstream mine pollution from B.C.
In early June, a report by B.C.’s First Nations Mining and Energy Council highlighted serious problems with the province’s reclamation bonding system, an arrangement in which companies have to provide for complete closure and cleanup of mines.
Unlike in B.C, in Alaska, full reclamation bonding is required up front.
“The amounts that mining companies have to provide in bonds to pay for cleanup are often wildly insufficient to deal with long-term water-pollution problems. And that puts everything downstream at risk,” explained Sander-Green.
Senators also highlighted that water-pollution issues have not been dealt with through the Boundary Waters Treaty, which prohibits pollution of shared rivers.
Meanwhile, a coalition of more than 110 groups — including environmental groups, elected officials, tribes and First Nations from both B.C. and Washington state — joined forces on Monday to oppose proposed mine exploration on Crown land near Manning Park, B.C.
They launched a paid print and digital media campaign calling on the province to deny a proposed mining permit in the Skagit Headwaters, which would allow exploration drilling over a five-year period.
The company proposing to mine the area is Imperial Metals. A spill at its Mount Polley mine in 2014, which saw 25 million cubic metres of waste wash into the Fraser River watershed, was one of the worst mining disasters in Canadian history.
To date, the company has not faced charges or paid any fines. A request for comment from Imperial Metals was not immediately returned.
Roughly 6,000 people have sent letters or emails to B.C.’s government and other entities opposing the mining permit, according to a release.
In addition to supporting fish and wildlife habitat, opponents say Skagit Watershed is critical to the local recreation economy as the mining threats are located in a “doughnut hole” of unprotected Crown land sandwiched between two provincial parks, which draw roughly a million visitors a year.
Proposed mining would threaten Indigenous land and title rights as well as natural and cultural resources, said Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, in the release. He is calling for the provincial government to deny the permit and uphold the UN Declaration on the Rights of Indigenous Peoples.
Recent reports and actions share a common goal: to urge the B.C. government — which they argue has an egregious mining track record — to address pollution with binding laws.
There’s “no end” to the tragic provincial stories and impacts, including on taxpayers funding the cleanup of several mines, said Calvin Sandborn, director of the Environmental Law Centre at the University of Victoria.
B.C.’s mining laws are archaic, Sandborn said, adding that almost every aspect of the enforcement system is inadequate.
And the U.S. has long had more stringent regulations for selenium and other pollutants, he noted, pointing to a lack of transparent, appropriate data collection in Canada.
“Americans look at it and say, ‘Well, why is our salmon at risk, our birds dying, our fish deformed and the Canadians get away with much lesser rules?’” he said. “They’re paying the price downstream.”
Sandborn said the province needs to step up in several areas, including: prioritizing ecological safety over economic imperatives, creating tougher enforcement, shifting to a “polluter pay system” and improving environmental assessments of mines.
The province has developed a number of mechanisms to work closely with its transboundary neighbours, including a memorandum of understanding with Alaska, a monitoring task group with Montana and an integrated monitoring program with Washington, according to a spokesperson from the Ministry of Energy, Mines and Petroleum Resources.
It is also looking for opportunities to build on its environmental assessments and will share reports on mine discharges, operations and closures, the emailed statement noted. In addition, the ministry recently announced a $20-million investment over the next three years to create a new mines authorization division independent of its enforcement division.
And its enforcement division will have more inspectors and “a new auditing function” to increase industry safety, the statement added.
Meanwhile, the Imperial Metals permit application is currently with a ministry “statutory decision maker” who will make a ruling after a review of submissions. The decision maker will have the “ability to take the time needed to adequately consider” the feedback.
First Nations consultation is ongoing, the spokesperson added.
Star Vancouver requested additional information on potential mining legislation reform and the B.C.-Montana pollution-limit process, but responses were not immediately available as they required input from additional ministries, according to the spokesperson.
“The relationship we have with our U.S. counterparts goes beyond a shared border. We have shared interests, ideals, goals and a shared environment,” the statement read. “We take the protection and preservation of our environment very seriously.”
With files from Ainslie Cruickshank
Melanie Green is a Vancouver-based reporter covering food, culture and policy. Follow her on Twitter: @mdgmedia
Senator Lisa Murkowski (R-AK) today introduced S.Res.251, recognizing 2019 as the International Year of the Salmon. The resolution aims to serve as a framework for collaboration across the Northern Hemisphere to recover and sustain salmon stocks through research, cooperation, and public action. The resolution was cosponsored by Senators Dan Sullivan (R-AK), Susan Collins (R-ME), Angus King (I-ME), Ron Wyden (D-OR), Jeff Merkley (D-OR), Maria Cantwell (D-WA), Patty Murray (D-WA).
“Alaskans are incredibly proud of our salmon. My hope is that this resolution will foster discussion and collaboration that will help others more deeply appreciate the tremendous value of these fish— to understand that supporting salmon means supporting food security, marine ecosystems, Alaska Native culture, coastal communities, and economies,” said Senator Murkowski. “Salmon indicate the health of rivers and oceans that people, fish, and wildlife depend on. Their migrations span national boundaries, and collaborating and sharing knowledge across borders is critical to sustaining salmon stocks.”
Congressman Don Young (R-AK), Co-Chair of the Wild Salmon Caucus, introduced companion legislation in the U.S. House of Representatives on June 4, 2019.
June 13, 2019 at 12:48 pm Updated June 13, 2019 at 2:01 pm
By Evan Bush Seattle Times staff reporter
This entire valley, about 26 miles southeast of Hope, British Columbia, drains into the headwaters of the Skagit River, the most important salmon... (Mike Siegel / The Seattle Times) More
Eight U.S. senators ratcheted up pressure on British Columbia Premier John Horgan as worries persist over the province’s mining practices and their impacts on rivers that flow into the United States.
In a bipartisan letter to Horgan, senators from Washington, Alaska, Idaho and Montana wrote that they “remain concerned about the lack of oversight of Canadian mining projects near multiple transboundary rivers that originate in B.C. and flow into our four U.S. states,” documented U.S. steps to protect these watersheds and asked for B.C. to “allocate similar attention, engagement and resources” to the issue.
The letter is signed by Sens. Lisa Murkowski, R-Alaska, Dan Sullivan, R-Alaska, Mike Crapo, R-Idaho, James Risch, R-Idaho, Jon Tester, D-Montana, Steve Daines, R-Montana, Patty Murray, D-Wash. and Maria Cantwell, D-Wash.
The new letter carries political clout. Risch is the chairman of the Senate’s Foreign Relations committee. Murkowski, who organized support for the letter, chairs the Senate Committee on Energy and Natural Resources. The letter was also sent to Canadian Prime Minister Justin Trudeau, governors of states the senators represent and a number of government agency heads on both sides of the border.
“This letter, it’s a first step. And it builds a record for what the members of Congress have done over the last handful of years regarding concerns in these transboundary rivers from B.C. mining,” said Jill Weitz, campaign director for Salmon Beyond Borders, which promoted the letter among lawmakers. “The pressure this will put on the premier will hopefully apply more pressure to the federal government and the Trudeau administration.”
The letter is filled with subtle rebuke, written in the delicate language of diplomacy.
B.C. government did not immediately comment on the letter.
Until recently, the International Joint Commission (IJC), which resolves disputes between the U.S. and Canada under the 1909 Boundary Waters Treaty, could not meet because Canada had not appointed enough commissioners. The senators pointed out the “absence of this engagement opportunity” in their letter.
The senators also told B.C. that several U.S. agencies had formed a group to address mining concerns and “determine the specific mechanisms necessary to safeguard U.S. economic interests and resources.”
They also noted that Congress recently appropriated $1.8 million for stream gauges to monitor water quality on rivers that cross the international border, which could detect impacts of upstream mining.
“It very much puts them on notice. One of the chief concerns is the fact that B.C. has inadequate monitoring on their side of the border,” Weitz said.
The Southeast Alaska Indigenous Transboundary Commission said it was encouraged by the senators’ involvement in the issue.
The group of 15 federally recognized tribes of Southeast Alaska wrote in a news release that indigenous people were disproportionately affected by transboundary issues and that tribes deserved a voice on whether projects should proceed.
“We need more than a mention in a letter. Business as usual continues,” said Jennifer Hanlon, the commission’s vice chair.
The senator’s letter follows outcry last month from congressional Democrats, Washington Gov. Jay Inslee, Seattle Mayor Jenny Durkan and many others over a mining proposal in the headwaters of the Skagit River in British Columbia.
More than 100 elected officials, tribal leaders and environmental organizations on both sides of the border declared their opposition to the project after the company filed for exploratory drilling permits, according to a tally by Tom Uniack, executive director of conservation nonprofit Washington Wild.
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Michael Jamison, of the National Parks Conservation Association, said each state represented in the letter has similar concerns to those voiced about the Skagit.
“We all have the same problem. We have a bad-acting upstream neighbor who has carved us out of the conversation in order to enable the industry and make us their settling pond,” said Jamison. “B.C. has been able to compartmentalize this problem too long. It’s a systemic problem.”
Many of the projects affecting the other states are further along than the Skagit.
Across the border from Montana, where Jamison is based, a Canadian company in the Elk River Valley of British Columbia has been mining coal for decades and has continued to expand, despite environmental concerns downstream, he said.
“These are mountaintop-removal coal mines — unbelievably vast,” Jamison said.
Runoff traveling through waste rock near the mining sites collects a mineral called selenium, which flows downstream into Lake Koocanusa and the Kootenay River at levels that have alarmed researchers, according to the Flathead Beacon. In excess, selenium is toxic. It can affect fish species’ ability to reproduce and alter their skeletons, Jamison said.
Evan Bush: 206-464-2253 or email@example.com; on Twitter: @EvanBush.
Bonus schemes play a role in tailings dams failures – researchValentina Ruiz Leotaud | June 10, 2019 | 9:30 am Careers, Education
A paper published in the journal Resources Policy states that bonus schemes for middle management employees in mining companies play a role in tailings dams failures.
According to the research article, such compensation packages actively encourage managers to cut costs and increase production, as the material decisions that put into motion such measures lay in their hands and positive results would increase their annual bonuses.
Although most mining companies don’t make public the compensation packages they give their middle management personnel, such incentives are known to be a common practice in the industry. Thus, using the information provided by the two companies that do report them, Newmont Goldcorp (NYSE: NEM, TSX: NGT) and AngloGold Ashanti (JSE:ANG, NYSE:AU), the authors of the study found that some schemes are equivalent, in financial terms, to an equity payment plus a put option.
THE NUMBER OF TAILINGS DAM FAILURES HAS DOUBLED IN RECENT YEARS FROM 8 IN THE PERIOD 1999–2003 TO 16 IN 2014–2018
“So the bonus is highly leveraged. Like investment bankers, the person stands to gain a lot if his/her performance is above target, but loses little, if it falls below target,” the study reads. “Year after year, managers keep taking risks with a low probability of occurrence but with potentially catastrophic consequences. These risks are compounded by shortages of experienced staff due to the cyclic nature of the industry and the retirement of the baby-boomer generation.”
Authors Margaret Armstrong, Renato Petterd and Carlos Petterd connected their observations to those in earlier research papersthat analyzed certain cases of tailings dams failures and found that either production was increased or costs were significantly reduced in the years leading to the accidents.
The academics report that, for example, prior to the collapse of the tailings facility at the gold and copper Mount Polley mine in British Columbia in August 2014, which resulted in 24 million cubic meters of contaminated sludge and mine waste going into nearby lakes and rivers, Canada’s Imperial Metals (TSX: III) had grown its production by 23% in Q2-2014 from the previous quarter.
Boliden Apirsa, on the other hand, had flat revenues from 1995 to 1997, just before the tailings dam crashed at the Los Frailes lead and zinc mine in Aznalcóllar, Spain, in April 1998. But capital expenditures doubled during this period from $55.4 million to $112.3 million and operating income increased spectacularly from $2.3 million to $84.9 million. “So production costs must have dropped significantly over the period.”
The aftermath of the disaster in Brumardinho following Vale’s tailings dam collapse. Photo by Vinícius Mendonça/Ibama, Wikimedia Commons.
In Brazil, production at Vale’s (NYSE:VALE) Samarco iron ore mine had increased by almost 40% in the five quarters just before the accident there in 2015, which killed 19 people and became the country’s worst-ever environmental disaster. Similarly, at the Paraopeba subsection of the Southern System where the Corrego do Feijão dam was located, production was risen by 12% in the eight years before the Brumardinho catastrophe where almost 300 people died.
“The next question we asked ourselves was: Had an extra tailings dam been constructed to handle this additional quantity of rejects, or was it being pumped into existing tailings facilities? Alternatively, had filter presses or high capacity thickening been introduced to reduce the quantity of water?”, the authors of the paper ask.
After reviewing Vale’s quarterly reports for investors, which list all the major projects in progress, they found that there is no mention of building a new tailings dam or of filter presses. “This means that the existing ones had to cope with the waste from the extra production.”
Off the hookExcept for $42.5 million for the initial clean-up, the paper in Resources Policy highlights the fact that Boliden Apirsa succeeded in avoiding paying for the pollution caused by the tailings dam breach.
“Boliden’s legal team and expert witnesses convinced a Spanish court of law that the tailings dam failure was due to geotechnical problems, thereby transferring the responsibility to the companies that had designed and built the dam. An epic legal battle ensued in which the Spanish Ministry of the Environment and the local government of Andalusia attempted to get Boliden to pay for the damage, but failed due to loopholes in the Spanish legal system,” the document reads.
In the case of the Mount Polley mine, Armstrong and her colleagues bring to the forefront the fact that the Independent Expert Engineering Investigation and Review Panel established after the accident found that the failure was caused by the design, which did not take into account the complexity of the sub-glacial and pre-glacial geological environment associated with the Perimeter Embankment foundation.
This has meant that no one has been held responsible for the disaster and, on top of this, the 3-year deadline to lay charges under British Columbia laws passed in 2017, while there is only one year left to lay charges under federal environmental and fisheries law.
The authors of the study refrained from commenting on the legal proceedings involving Vale’s tailings dam failures as they are still in progress.
In their recommendations of what would be needed to stop tailings dam failures, the researchers suggest, besides changes in the processing technology and wider adoption of the Mining Association of Canada’s guidelines issued in 2017, heavier fines and penalties
Canada is the undisputed powerhouse of the mining industry, home to 75 per cent of its companies — but the industry is plagued by allegations of rape and slavery abroad. Now those who feel harmed or violated can seek justice back in Canada
Andrew Findlay Jun 7, 2019 16 min read
In April 2013, a group of Guatemalan farmers, among them Adolpho Augustin Garcia, converged outside the front entrance of Vancouver-based Tahoe Resources’ Escobal mine. Located in southeast Guatemala near the community of San Rafael Las Flores and operated by Tahoe subsidiary Minera San Rafael, the mine was already controversial even though it hadn’t yet begun production.
Garcia and fellow protesters faced off against private security personnel working for Alfa Uno, the firm that Minera San Rafael had contracted to guard Escobal, which went on to become one of the world’s largest silver mines, producing a world record 21.2 million ounces of silver concentrate in 2016. Lucrative as it potentially was, the mine was plagued by protests by the local Indigenous Xinca, small-scale farmers and community leaders, many of whom fear its impact on water and land.
That day, under the orders of the head of security, a Peruvian named Alberto Rotondo, personnel guarding the mine allegedly fired on protesters with rubber bullets as they fled the entrance. Seven were injured.
Six years later, this skirmish is reverberating throughout the Canadian mining industry and has the attention of the country’s legal system.
A case for which court?In June 2014, seven Guatemalan plaintiffs, including Garcia, launched a civil suit against Tahoe Resources in B.C. Supreme Court, alleging negligence and battery at the hands of Escobal mine security. Then in November 2015, Justice Laura Gerow ruled that a Canadian court didn’t have jurisdiction, agreeing with Tahoe that the case should be heard in Guatemala.
However, the plaintiffs appealed a year later, and in 2017 the B.C. court of appeal overturned Gerow’s decision, supporting the argument that the Guatemalans likely wouldn’t get a fair trial in their own country.
(Guatemala ranked 96th out of 113 countries in the 2017-18 Rule of Law Index published by the independent World Justice Project, compared to No. 9 for Canada.)
Tahoe asked the Supreme Court of Canada for leave to appeal, but the request was denied that June. Garcia vs. Tahoe had cleared its final legal hurdle, and this potentially game-changing case is set to proceed in a Vancouver courtroom. (In February 2019, another Vancouver-based company, Pan American Silver, completed its acquisition of Tahoe Resources for roughly $1 billion.)
It’s a shot across the bow of corporate Canada, warning companies that when it comes to overseas operations, they can no longer pawn off responsibility for human rights violations to in-country subsidiaries.
It also marks a legal milestone: the first time a Canadian court has agreed to allow foreign plaintiffs to seek justice in Canadian courts for incidents alleged to have occurred abroad.
Joe Fiorante, a partner at Vancouver law firm Camp Fiorante Matthews Mogerman, represents the seven plaintiffs, three of whom settled out of court with Tahoe.
“In terms of setting precedent, it is very important for there to be a public trial,” Fiorante says. “Our goal is to make the parent company responsible at the highest level,” he adds.
“If a board of directors knows that it will be responsible for the conduct of its subsidiaries abroad, that will have a profound impact on corporate responsibility.”
As of May 2019, no trial date had been set.
From whence you came
In the past, Canadian companies have mounted successful appeals in similar cases by arguing a common-law doctrine known as forum non conveniens, whereby courts may refuse to take jurisdiction over matters where a more appropriate forum is available.
The result: lawsuits filed in Canada by foreign plaintiffs alleging wrongdoings by Canadian companies have been dismissed and sent back to languish or die a quick death in the plaintiffs’ home countries.
But this line of defence is showing cracks.
Canada is the undisputed powerhouse of the mining industry, home to 75 per cent of its companies. Figures from the Mining Association of Canada show that Canadian investment in mining abroad more than tripled between 1999 and 2016.
But with the clout of being the global leader in mining and mining technology sometimes comes uncomfortable scrutiny, especially when Canadian players build operations in countries where the rule of law is weak, democracy fragile, respect for human rights tenuous, corruption rampant and accountability non-existent.
Allegations of modern slavery against Vancouver-based Nevsun ResourcesTahoe isn’t the only B.C. mining company facing a possibly ugly public trial.
In 2014, three Eritrean men filed a suit in B.C. Supreme Court alleging that they were subjected to abusive labour practices by a state-run contractor engaged by Vancouver-headquartered Nevsun Resources for the construction of its Bisha mine in Eritrea, on the Red Sea in Northeast Africa. The original three plaintiffs have since been joined by more than a dozen other former Bisha employees, and this mass tort claim over allegations of modern slavery is another ignominious first for Canada’s mining sector.
Unlike with Tahoe, the Supreme Court allowed Nevsun to appeal a lower court’s decision allowing the case to proceed. This past January, the Supreme Court of Canada heard arguments from both sides, with Nevsun asking for the case to be sent back to Eritrea. While the plaintiffs and defendant await a decision from Canada’s top court, debate continues outside the courtroom.
Amanda Ghahremani, former acting legal director of the Canadian Centre for International Justice and a legal consultant specializing in international law and redress for victims of atrocity crimes , believes it would be hard for the company to successfully argue that Eritrea is an appropriate venue for the plaintiffs to seek justice.
The country of five million, which fought a protracted war of independence with Ethiopia that ended in 2000, is a de facto one-party state with a dismal human rights record that “continues unabated,” according to a 2018 report by United Nations special rapporteur Sheila Keetharuth.
“I hope Canadian mining companies are paying attention to these court cases. They should be,” Ghahremani says. “It’s important for them to understand that they cannot go into foreign countries and commit human rights violations and not be held responsible.”
Ontario court hears gang rape case at Guatemalan mineIndustry executives are likely paying close attention to a third lawsuit involving another Canadian company, Hudbay Minerals, that is winding through the Ontario courts.
The company chose not to pursue an appeal of this suit, filed in 2011 by 11 Indigenous Mayan women in Superior Court of Ontario alleging gang rape by security personnel at Fenix Mine in eastern in Guatemala back in 2007. The incident is alleged to have occurred before Hudbay acquired the property from Skye Resources in 2008 and the Toronto-based company has since divested its interest in this property.
The nickel processing plant for the Fenix mine in Guatemala, owned by Hudbay Minerals. The company is facing charges in an Ontario court related to the alleged gang rape of 11 Mayan women.
Scott Brubacher, director of corporate communications for Hudbay Minerals, said that the court case was at a standstill as of spring 2019. According to Brubacher, confusion around mine ownership at the time of the alleged crimes and misreporting in the media has put Hudbay in a difficult position.
Not surprisingly, many Canadian law firms with mining industry clients are also closely following these courtroom developments.
In a February 2017 blog post, Vancouver-based McCarthy Tetrault called Garcia vs. Tahoe “significant for both Canadian resource companies operating abroad and for foreign individuals alleging that Canadian parent companies are responsible for wrongs committed in the complainants’ home country.”
A reputation as good as goldThough none have been proven in court, allegations of rape, slavery and shooting protestors with rubber bullets don’t burnish the image of the Canadian mining industry, especially when it’s trying to earn social licence for mines in countries that often present complicated social, economic, political and environmental challenges.
However, mining investment can be a powerful trigger for positive change, says one of B.C.’s biggest industry boosters.
Mark O’Dea is a Newfoundland-raised geologist and mining entrepreneur who sold publicly traded Fronteer Gold to U.S. titan Newmont Mining Corp. for CAD$2.3 billion in 2011. He’s also a winner of the Association for Mineral Exploration British Columbia’s Murray Pezim Award for perseverance and success in financing mineral exploration. O’Dea is no stranger to launching mining ventures abroad. As founder and chair of Vancouver-based investment firm Oxygen Capital Corp., he has interests in projects in Ontario, Nevada, Turkey and the West African nation of Burkina Faso.
Although O’Dea wouldn’t comment on Tahoe and Nevsun’s legal troubles, he thinks negative stories involving Canadian mining companies overshadow the economic good that mines bring to developing nations. He points to Karma, a gold mine in Burkina Faso that he developed through one of his companies, True Gold Mining.
O’Dea says the USD$130-million project brought opportunities to a region of the country that was previously without industry and “desolate,” though it also ran into protests from local populations that briefly suspended its construction in 2015.
“Over several years we created 1,000 jobs, with spinoffs to local business, and we damned a seasonal river to provide year-round water,” O’Dea says. “That’s a lasting benefit; that’s long-term.”
The mining sector does a poor job of telling its own good news story, he adds.
Tahoe mining licence suspended, blockades continueThough Tahoe didn’t respond to interview requests, the company’s story in Guatemala is much more nuanced than you’d gather from sordid tales of security forces firing indiscriminately on protestors. Many local Guatemalans, both mine workers and business owners, support Escobal. Yet the project remains mired in controversy, and efforts by mine managers and Guatemalan government officials to suppress local dissent are well documented.
While Tahoe was preparing to defend itself in B.C. Supreme Court this past summer, troubles continued to mount at its Guatemalan silver mine.
In July, Escobal protester Ángel Estuardo Quevedo was murdered, and the perpetrators haven’t been identified.
Protesters in the community of Casillas, near the Escobal mine — one of the world’s largest silver mines — pray for calm amid rumours the army is on its way to evict their anti-mining roadblock. Mine owner, Vancouver-based Tahoe Resources, faces charges in Canada related to violent clashes with protesters in Guatemala. Photo: Nina Lakhani
Earlier in 2018, the Constitutional Court of Guatemala suspended Tahoe’s mining licence, asking for a third-party review of both Escobal’s environmental impact study, along with the Guatemalan Ministry of Energy and Mines’ consultation process that resulted in its permitting in 2013.
The mine, which has been shut since mid-2017, remains the target of blockades, as well as protests 40 kilometres away in the nation’s capital, Guatemala City.
Lawyer Fiorante, whose connection to Guatemala dates back to travels there in the early 1990s, when the country was still crippled by civil war, says he’s “open to discussions about the benefits of mining.” (He now serves as volunteer legal counsel for Project Somos, a Vancouver charity that helps orphaned Guatemalan children.) “But in countries like Eritrea and Guatemala where there is so much corruption, I don’t think you can have any assurance that these benefits will trickle down to local people.”
Canada’s missing ombudspersonCompared to the developing world, Canada has relatively stringent mine assessment and permitting procedures — so stringent that Oxygen Capital’s O’Dea says it’s become difficult to develop projects on his home turf in a reasonable time frame.
(Still, there are problems on home turf, too, with taxpayers shouldering the burden for abandoned mines like the Giant Mine in Yellowknife and a massive 2014 tailings dam failure at the Mount Polley mine resulting in 25 billion litres of contaminated materials entering Polley Lake, Hazeltine Creek and Quesnel Lake, a source of drinking water and major spawning grounds for sockeye salmon.)
When a Canadian company makes a foreign play, especially in jurisdictions where democratic institutions are brittle, it takes a next-level commitment to corporate responsibility and oversight to ensure that the project meets Canadian standards. Factor in local contractors that may be accustomed to playing by a different set of ethical and legal rules, and events can quickly spiral out of control.
That’s a big reason why in January 2018, the federal government announced $6.8 million in funding over six years for the creation of CORE, the Canadian Ombudsperson for Responsible Enterprise, tasked with investigating allegations of human rights abuses involving Canadian companies of all stripes operating outside the country.
Ottawa is also establishing a multi-stakeholder advisory body to guide government and the ombudsperson on “responsible business conduct abroad.”
Improving mining responsibility abroadEven at the highest level of mining industry advocacy, it’s widely accepted that Canada needs to step up its corporate responsibility game on foreign soil.
Ben Chalmers, VP of sustainable development for the Mining Association of Canada, says his organization sees the new willingness of Canadian courts to try cases involving foreign plaintiffs and Canadian companies as a step forward when it comes to transparency and clarity.
In 2004, the mining association began implementing its “towards sustainable mining” initiative. Chalmers calls it a response to some high-profile tailings pond failures during the 1990s, such as the one near Virginia, South Africa, in 1994, when the Merriespruit tailings dam collapsed, killing 17 people and destroying 80 houses.
The initiative provides protocols and frameworks for companies on all aspects of operations, including aboriginal and community engagement, greenhouse gas emissions and tailings management, biodiversity conservation, health and safety, crisis management, mine closures and the prevention of child and forced labour.
To achieve verification, a company must conduct annual self-assessments, get an external verification every three years and provide a CEO letter of assurance confirming that the outside assessment meets the standards, Chalmers says.
“We’re not without problems as an industry. But I’d say as a country, we’re doing more than most to address conflicts that arise between companies and the communities in which they operate overseas,” he asserts.
“I also think that we’re seeing more companies adopting progressive and proactive policies on their own.”
As proof of Canada’s commitment to socially responsible mining, Chalmers cites a 2018 study by Paul Haslam, an associate professor in the University of Ottawa’s faculty of social sciences, which rates 634 mining properties in five Latin American countries for their impact on local communities. Out of this total, Haslam and his fellow researchers identified 128 mines with known social conflict, nearly 33 per cent of them Canadian-owned.
Although Chalmers think it’s a decent batting average, Catherine Coumans, research coordinator for MiningWatch Canada, says if this is how Canadian mining companies are playing ball, they need to strive for a much better standard on the international stage. In her view, the mining association’s sustainable mining effort smacks of the fox guarding the henhouse.
Case in point: in 2016, the Mining Association of Canada gave a leadership award to Hudbay Minerals for its Hudson Bay Mining and Smelting Co. at the same time the company was defending itself against alleged human rights infringements at its former mine in Guatemala.
“We don’t think [towards sustainable mining] is the highest standard that it could be,” Coumans says from MiningWatch Canada’s Ottawa headquarters.
Activists and industry watchers are anticipating the full implementation of an independent set of standards known as the Initiative for Responsible Mining Assurance, she notes.
Mining’s day of reckoningThe fact that the Initiative for Responsible Mining Assurance has been 12 years in the making is a testament to the socioeconomic complexity of mining.
Where the “towards sustainable mining” program was driven internally by the Canadian mining sector, the Initiative for Responsible Mining Assurance emerged after citizen activists started showing up with placards at retailers like American luxury jewelry chain Tiffany & Co. in the mid-2000s, when the public shaming of so-called blood diamonds from Africa was hitting a fever pitch and consumers demanded to know more about precious-gem and metals procurement policies. When these retailers approached non-governmental organizations for guidance in identifying the “green miners,” Seattle-based Initiative for Responsible Mining Assurance coordinator Aimee Boulanger explains, they found there was no credible body to help them separate good and bad actors.
“It has been a hard process because mining is so complex. No two sites are the same, from the geochemical conditions to the water conditions of a mine, or the sociopolitical conditions of a given jurisdiction,” Boulanger says. “The strength of [the Initiative for Responsible Mining Assurance] will be the fact that the third-party verification will be just as important as the standards themselves.”
The Initiative for Responsible Mining Assurance launched in 2019 with a heavyweight steering committee including representatives from the mining giants Anglo American and ArcelorMittal, downstream purchasers like Microsoft Corp. and Tiffany, human rights and environmental non-governmental organizations, labour groups and Indigenous leaders.
Currently two mines, Anglo-American’s Baro Alto Mine in Brazil and the Carrizal Mine in Mexico are using the Initiative for Responsible Mining Assurance self-assessment tool to measure their social and environmental performance and are sharing their findings publicly on a responsible mining map.
“We don’t yet have any Canadian mines that have come in asking to be recognized by [the Initiative for Responsible Mining Assurances] system, but we hope some soon will,” Boulanger says, adding that the initiative is working with the Mining Association of Canada on a project to explore a possible level of shared recognition.
Boulanger places mining in a similar phase as the garment and forestry industries more than a decade ago, when consumers and activists began placing their practices in a glaring spotlight, whether it was a sweatshop in Bangladesh or old-growth clear-cutting in B.C. Such pressure helped put corporate and social responsibility at the top of boardroom agendas in those industries; Boulanger believes mining’s day of reckoning is next.
“My hope is that CEOs will realize that they won’t be able to avoid this level of corporate responsibility indefinitely,” she says.
Mining is already a much different world than it was in the 1990s. Organizations like ResponsibleSteel and the Responsible Jewellery Council, both based in the U.K., are targeting their sectors to raise ethical standards.
Loose language from the Canadian government exhorting Canadian companies to respect the law of whatever country they’re operating in no longer cuts it. Consumers, buyers and now Canadian courts are expecting more.
In turn, lawsuits like the ones faced by Tahoe and Nevsun playing out in Vancouver courtrooms, and Hudbay Minerals in Ontario, have put Canadian miners on notice.
“Canada is actively mining in many countries where the rule of law is loose,” attorney Fiorante says.
“We’re trying to place legal responsibility right at the top of these companies.”
A version of this article originally appeared in BC Business.
*Updated 11 a.m. June 12, 2019, to reflect the fact that Tahoe Resources was acquired by Pan American Silver in February 2019.
Andrew FindlayAndrew Findlay is a freelance journalist who lives in the Comox Valley and writes about environmental and social issues, travel,…
Zack Brown | Office of Representative Young Jun 5, 2019.
Washington, D.C. – Tuesday, Alaska Congressman Don Young and Congressman Jared Huffman (D-CA), Co-Chairs of the Wild Salmon Caucus, introduced a House Resolution to recognize and honor the International Year of the Salmon (IYS). IYS is a collaboration between multiple Northern Hemisphere countries, including the United States and Canada. 2019 is the focal year for IYS, with projects and activities designed to raise awareness and understanding of the issues facing wild salmon planned to continue through 2022.
“Alaskans know how precious our wild salmon is not only to our economy, but to our way of life,” said Congressman Don Young. “International Year of the Salmon is an excellent chance for our global community to come together and recommit ourselves to pursuing policies that allow our salmon populations to thrive. For the good of Alaska’s fishermen, our tourism economy, and the families who depend on salmon as a food source, I am proud to join my Wild Salmon Caucus Co-Chair, Congressman Jared Huffman, in recognizing the International Year of the Salmon.”
“The North Coast is home to many of California’s iconic salmon runs, which support the economic and cultural vitality of coastal communities, tribes, and aquatic ecosystems,” said Congressman Jared Huffman, co-chair of the Wild Salmon Caucus and Chair of the Water, Oceans, and Wildlife Subcommittee. “Unfortunately, climate change, droughts, and habitat loss have threatened vulnerable salmon populations. I’m glad to reach across the aisle and work with Congressman Don Young to recognize 2019 as the International Year of the Salmon and shine a light on the importance of wild salmon conservation.”
“Salmon is an economic powerhouse for Alaska and throughout much of the northern hemisphere,” said Jill Weitz, Juneau resident and Campaign Director of Salmon Beyond Borders. “Working together to better understand salmon populations is investing in the future; International Year of the Salmon is a celebration to defend this iconic species for generations to come.”
SALMON BEYOND BORDERS is a campaign driven by sport and commercial fishermen, community leaders, tourism and recreation business owners and concerned citizens, in collaboration with Tribes and First Nations, united across the Alaska/British Columbia border to defend and sustain our transboundary rivers, jobs and way of life.
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