‘When are they going to ensure the polluter pays?’: proposed B.C. mining reforms don’t go far enough
A plan to update the province’s antiquated Mines Act will bring more independent oversight of mines but doesn’t address lax regulations that leave responsibility for clean-up costs, such as in the Mount Polley mine disaster, in the hands of taxpayers
Judith Lavoie, The Narwhal
Oct 25, 2019 9 min read
Proposed reforms to B.C.’s mining act are a positive step but taxpayers are still on the hook for costly clean-up costs, according to Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre.
Sandborn, who has been at the forefront of efforts to reform B.C.’s antiquated mining laws, said while the proposed changes to B.C.’s mining regime address a lack of independent oversight of the industry, they don’t tackle the long laundry list of problems associated with B.C.’s growing mining industry.
That’s because the proposed mining reforms, released last month and now open for public comment, deal only with the Mines Act and not the Mineral Tenure Act, which allows mining claims to be staked by nearly anyone in the world who has access to a computer, even if those claims lie within Indigenous traditional territory or sensitive ecosystems.
The suggested changes also don’t address ballooning liabilities associated with mining operations. The Environmental Law Centre has pegged the liability costs for old mines in B.C. at $1 billion, while a report from watchdog group MiningWatch Canada estimated the figure to be closer to $3 billion.
“You need to have a guarantee that, when the mine closes up, it’s not going to leave the long-term problems that we’ve seen all over the province,” Sandborn told The Narwhal
“When are they going to ensure the polluter pays rather than taxpayers picking up the tab? The history of mining in B.C. has been that companies come in and get the quick profit and just leave the cost to the taxpayers.”
This provincial map shows the location of selected major exploration projects, selected proposed mines and mines producing metal, coal and industrial minerals in 2018. Photo: British Columbia Geological Survey
B.C.’s regulation of mining under fire since Mount Polley Mine disaster
Regulation of B.C.’s mining industry has been under fire, both in Canada and internationally, since the 2014 Mount Polley disaster saw 24 billion litres of contaminated mining waste flow into waterways around Quesnel Lake and Hazeltine Creek after a tailings dam collapse.
Public anger grew when no charges were laid against Imperial Metals even though a panel of experts found the company at fault due to an unstable foundation. Taxpayers ended up shouldering $40 million in cleanup costs and, in 2017, the company was given permission to discharge mine waste directly into Quesnel Lake.
The Mount Polley dam collapse led to fears in Alaska of similar disasters at Canadian mines along the border above prime salmon-bearing rivers. Alaskans are also dealing with pollution from the abandoned Tulsequah Chief mine, on the Canadian side of the border, close to the salmon-rich Taku River.
The suggested reforms would separate mining permitting powers from inspection and enforcement duties to alleviate an apparent conflict of interest.
A new statutory decision-maker would be responsible for permitting, while health, safety and enforcement responsibilities would remain with the Chief Inspector of Mines.
The reforms also include the creation of a new oversight body, an Audit Unit, to perform independent mine inspections and beef up the capacity of staff with the Ministry of Energy, Mines and Petroleum Resources to hold mines accountable for health and environmental safety.
New powers for the ministry would give inspectors and auditors the authority to bring equipment or people to mine sites when needed, including technical experts and representatives from Indigenous communities.
Earlier this year, the Environmental Law Centre joined more than 30 mining advocacy and legal organizations earlier this year in calling for sweeping changes to B.C.’s mining laws.
The 69 detailed changes recommended by those groups include expanding civil liability for companies to ensure they pay for pollution, mandating clear risk-based inspection policies for all mines including closed and abandoned sites and requirements for independent analysis of water treatment systems that take into account the full long-term costs of a mine’s lifecycle.
Sandborn said it is important to separate regulation from granting mining rights, “so you don’t have the mine promoter agency regulating people they have lured to the province.”
But it’s unclear how effective the province’s proposed changes will be at separating promotion and enforcement, Sandborn said.
“It’s not as separate as it is in some jurisdictions where it is different agencies, like Alaska and Ontario. … It’s somewhat of a response to the very fundamental problem the Auditor General pointed out, but we’ll see how separate those agencies end up being.”
In 2016, Carol Bellringer, B.C.’s auditor general delivered a damning report that concluded the province is not properly prepared to protect the environment from the mining industry. Bellringer found that a major problem is mining companies do not post enough security deposits to cover potential reclamation costs if a firm defaults. She estimated the fund is short more than $1 billion.
Sandborn said he is surprised that, after all the bad publicity, the government is not quickly bringing in effective reforms that look after taxpayers’ interests.
“This is a small step, but my bigger worry, from what I hear within government, is they’re going to blow it on the big issues.”
The government has boosted the budget of the mines ministry by $20 million over three years to hire more inspectors and conduct more inspections. Talks are being held with industry, Indigenous communities and non-governmental organizations about changes to the Mineral Tenure Act, but more consultation is needed, according to government documents.
Changes to the Mineral Tenure Act, which the reforms do not touch, are essential to stopping mineral claims arbitrarily overriding land use plans that have been put together by stakeholders agreeing on the best use of different areas, Sandborn said.
“Mining claims can go in on Indigenous territories and cultural sites and sensitive watersheds,” he pointed out.
An updated policy for mine reclamation securities is expected later this year, with the presumed aim of ensuring clean-up costs are covered if a mining company fails to live up to its obligations.
In Alaska, mining companies are required to provide 100 per cent security upfront before a mine is permitted to operate. B.C.’s regulations are far laxer.
For instance, Canadian mining giant Teck Resources was required to pay full security for an estimated $560 million in reclamation costs for its Alaskan mine. Teck’s five B.C. mines, which have been plagued with selenium pollution problems, have unsecured reclamation costs of $700 million dollars in total.
Sandborn said he is getting troubling signals that the B.C. government may not join other jurisdictions such as Quebec and Alaska in requiring 100 per cent bonding.
“Proposals I have seen that were being floated around in the ministry were saying that we would give bonding credit for rocks in the ground. If there were potential minerals in the ground that could be applied to the bond, which is an absolutely bizarre notion that would be absolutely unacceptable and unenforceable,” Sandborn said.
Meanwhile, controversy continues to boil over Taseko Mines’ repeated attempts to explore for copper and gold on sacred land within Tsilhqot’in traditional territory, despite the unwavering opposition of Tsilhqot’in National Government. The New Prosperity Mine was twice rejected by the federal government, but granted an exploration permit by the province’s former BC Liberal government.
In other disputes, Imperial Metals, the same company responsible for the Mount Polley disaster, wants to drill in the Skagit headwaters, adjacent to Manning Park, angering groups in Canada and the U.S, who, again point to B.C.’s poor regulation of the mining industry.
A hiker on Silverdaisy Peak in the area known as the ‘Doughnut Hole’ in the headwaters of the Skagit River. In 1996, Skagit Valley was given a provincial park designation, merging the area with Manning Park, but the middle was left out because of mineral claims that have existed since the 1930s, creating the area known as the ‘Doughnut Hole,’ now the subject of an application for a mining exploration permit by Imperial Metals. Photo: Wilderness Committee
Clock is ticking for public input
Jill Weitz, campaigner with Salmon Beyond Borders, an Alaskan-based group advocating for the protection of transboundary watersheds, said she commends the province for soliciting public comment. But there is a lack of clarity within the process, she said.
“The province doesn’t do a good job in outlining how this will become a part of a bigger, broader process to update B.C.’s archaic mining laws,” Weitz old The Narwhal.
The cutoff for British Columbians to have their say on provincial mining regulations is Friday, October 25.
There is still time to fill out a survey or email feedback to email@example.com.
Written submissions will be posted publicly, making it simple to see whether the government has received an earful on needed changes.
In an emailed statement to The Narwhal, the mining ministry said all feedback received will be considered, including in any future legislative, regulatory or policy changes. The ministry will also release a “What We Heard Report” summarizing the overall feedback.
“The intention is for government to introduce the Bill into the Legislature in 2020 should it wish to do so,” the ministry said.
A minister said the legislation would not effectively give indigenous peoples the power to stop resource development projects on their traditional lands.
The Canadian Press
Dirk MeissnerOctober 23, 2019
7:43 PM EDT
October 24, 2019
9:27 AM EDT
VICTORIA — British Columbia is set to become the first province to introduce human rights legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples, which would mandate the government to bring provincial laws and policies into harmony with its aims.
The legislation is expected to be introduced on Thursday and is bound to raise questions about the potential impact on the way the province is governed, but Indigenous leaders, academics and members of B.C.’s New Democrat government say it will ensure Indigenous Peoples are full participants in all aspects of the province.
“This is about recognizing human rights applied to Indigenous Peoples and it’s something that governments of all stripes have not done before, despite the fact it’s in the Constitution of Canada,” Scott Fraser, the province’s minister of Indigenous relations and reconciliation, said Wednesday.
He said the legislation is British Columbia’s version of a federal bill that died on the Senate order paper when Parliament adjourned for Monday’s election.
The declaration was adopted by the General Assembly of the UN in 2007 after 20 years of debate, although Canada was originally one of four countries that voted against it. Among other things, the declaration says Indigenous Peoples have the right to self-determination, which means they can determine their political status and pursue economic, social and cultural development.
This is about recognizing human rights applied to Indigenous Peoples and it's something that governments of all stripes have not done before, despite the fact it's in the Constitution of Canada
The NDP has made reconciliation with Indigenous Peoples and the implementation of the declaration a top priority since it formed a government in 2017. The mandate letter for each member of Premier John Horgan’s cabinet says ministers are responsible for bringing the principles of the declaration into action in B.C.
“I’ve been all over the place meeting with industry, meeting with stakeholders, meeting with government, meeting with NGO’s, meeting with labour,” said Fraser. “What we’re talking about is working with First Nations in a different way, from the beginning of projects. Not working together and ignoring that rights exist almost guarantees disagreement.”
He said the legislation will not effectively give Indigenous Peoples the power to stop resource development projects on their traditional lands.
“There’s no veto in the 46 articles in the UN Declaration of the Rights of Indigenous Peoples and there’s none contemplated with the legislation,” Fraser said.
The Supreme Court of Canada has ruled in several cases in B.C. that Indigenous Peoples must be consulted about development projects on their lands. Several First Nations continue to challenge the federal government’s expansion of the Trans Mountain pipeline project from northern Alberta to B.C.’s coast.
Grand Chief Ed John of the First Nations Summit, one of B.C.’s largest Indigenous organizations, said the legislation will redefine, reset and restructure historical relations between B.C. and Aboriginal Peoples.
“It’s a milestone in Indigenous, state relations,” he said.
John also rejected concerns that the legislation would grant Indigenous Peoples a veto on resource development.
“It’s a go-to thing for those who want to run (it) down and keep the status quo in place,” he said.
Mary Ellen Turpel-Lafond, a law professor at the University of British Columbia, said the issue of free, prior and informed consent is not new because courts have ruled on numerous occasions that governments and resource developers must consult with Indigenous groups about projects on their lands.
Turpel-Lafond, who provided legal advice to Indigenous groups that helped develop the B.C. legislation, said governments can still approve projects despite opposition but the process must involve consultation with Indigenous Peoples.
“If you want to develop a new mine, for instance, you’ve got to work with First Nations,” she said. “The key to this legislation is a new pathway. What B.C. is going to have is a way of doing business that’s going to conform to what’s required, by what’s already in our law. But we’re going to make it clear across the board.”
Turpel-Lafond, a former Saskatchewan judge, said the legislation looks to a more equal future.
“I do think that in the history of B.C. this will be a turning point,” she said. “It’s a major shift. I think we’ll lead Canada and possibly lead the world.”
Prof. Jean Paul Restoule, chairman of the department of Indigenous education at the University of Victoria, said the legislation is long overdue, considering the relationship between Indigenous Peoples and governments has been decidedly one sided.
“The whole declaration is really about recognizing the full human rights and collective rights of Indigenous people,” he said. “To me the UN declaration represents Indigenous community hopes and aspirations across the whole globe.”
DERRICK PENNER, Vancouver Sun
Updated: October 24, 2019
"Most simply put, it’s about coming together as governments, as people seeking to find common ground,” said Terry Teegee, Regional Chief for the Assembly of First Nations in B.C.
B.C. made history Thursday as the first province in Canada to introduce legislation aimed at adopting the UN Declaration on the Rights of Indigenous Peoples, which left local First Nations and industry hopeful for an improvement to the status quo.
The legislation, introduced by Minister of Indigenous Relations and Reconciliation Scott Fraser, mandates that government bring its laws and policies into harmony with the aims of the declaration, often referred to by its acronym, UNDRIP.
On the order paper as Bill 41, the legislation doesn’t set out a timeline for completion, but Fraser said it “is about ending discrimination and conflict in our province, and instead ensuring more economic justice and fairness.”
“Let’s make history,” he told the legislature Thursday, in front of an audience that included leaders from the First Nations Leadership Council.
There will be those who find any change difficult “because they’ve grown accustomed to the status quo,” said Indigenous leader Bob Chamberlin, but they shouldn’t fear UNDRIP’s principle of Aboriginal consent and shared decision-making for resource development.
STORY CONTINUES BELOW
“Right now, we essentially have one-size-fits-all consultation, which doesn’t work,” said Chamberlin, a former first vice-president of the Union of B.C. Indian Chiefs and recent unsuccessful NDP candidate on Vancouver Island in the federal election. “If it worked, we wouldn’t be in the courts (with) everything being dragged out.”
UNDRIP requires governments to obtain “free and informed consent” from Indigenous groups before approving any project affecting their lands or resources, but Fraser said that doesn’t equate to a veto over development.
B.C. Premier John Horgan echoed Fraser, stating that neither the legislation nor the UN declaration itself includes language that would grant a veto over resource projects. For industry, the proof of success on that point will have to come from implementation, said Greg D’Avignon, CEO of the Business Council of B.C.
“Whenever you bring something new in, there is always a difference in perception and interpretation of what it is and what it isn’t, D’Avignon said. “Government has been clear today that this is not a veto and that they retain their right for decision-making and we will hold them to that obligation.”
Indigenous leaders addressed the concern in speeches to the legislature.
“Some people will oppose this law because of their fears about what an era of mutual consent means,” said Terry Teegee, regional chief for the Assembly of First Nations in B.C., adding that making history “is not for the faint of heart.”
“I want to say strongly and clearly here: This declaration law is not about providing any government with veto rights,” Teegee said.
Consent is about a process to achieve agreement, he said, which “is the future.”
“Most simply put, it’s about coming together as governments, as people seeking to find common ground,” Teegee said.
And if that is implemented well, B.C.’s mining industry is cautiously hopeful that such decision-making will “enable greater certainty and predictability on the land base,” according to Michael Goehring, CEO of the Mining Association of B.C.
Goehring said his association’s members have long been “advancing economic reconciliation” through agreements and partnerships with First Nations that reflect UNDRIP’s principles. So the industry welcomes a chance to provide input to government and Indigenous leaders on the plan and implementation of the legislation.
“The truth is, the status quo has not engendered confidence in British Columbia’s economic future, nor has it served British Columbians or B.C.’s Indigenous communities,” Goehring said. “So we approach this bill with cautious optimism.”
Fraser said the legislation was drafted after consultation with a wide range of groups and organizations, including Indigenous, business and government leaders. The declaration contains 46 articles, including that Indigenous Peoples have the right to self-determination, which means they can determine their political status and pursue economic, social and cultural development.
Another article calls for an independent process to be established to recognize and adjudicate Indigenous Peoples’ rights pertaining to their lands and resources granting them the right to redress or compensation for traditional lands that have been taken, used or damaged without their free, prior and informed consent. It’s unclear what this will practically look like in B.C., which has almost no treaty settlements with its over 200 First Nations. Horgan said the past is littered with broken promises to Indigenous Peoples, but the law can bring a new future.
“This bill is important because Indigenous rights are human rights,” he said. “We all want to live in a province where the standard of living for Indigenous Peoples is the same as every other community in the province.”
Chamberlin said the province, First Nations and B.C.’s salmon-farming industry used a shared-decision-making process for a deal over salmon farming in the Broughton Archipelago that could be a model for Bill 41’s implementation.
“People are going to say this is time-consuming and expensive,” Chamberlin said. “Well, I think going to court is time-consuming and expensive, and leads to no certainty whatsoever. It doesn’t advance reconciliation, it just hardens the lines, and I think after 150-odd years in Canada we’ve had enough hard lines.”
-With files from The Canadian Press
Posted by Jacob Resneck, CoastAlaska | Oct 11, 2019
Tribal representatives from across Southeast Alaska, British Columbia and Washington state are sounding the alarm over threats posed to wild salmon across state and national borders.
“We will not surrender our responsibilities as stewards of the land and resources entrusted to us by our creator,” John Ward of the Taku River Tlingit in Atlin, British Columbia said in a statement.
Pacific tribes stretching from Yakutat, Alaska to Bellingham, Washington attended the three-day summit hosted by the Lummi Nation near Ferndale, Washington.
At the conclusion of the three-day summit, the tribal governments jointly pledged they are:
“It’s just death by a thousand cuts,” she told CoastAlaska Thursday. “There’s so many things affecting our salmon, and this has been a focus of SEITC’s work for five years now.”
The tribes’ statement pointed to resource extraction industries, namely Canadian mines on transboundary watersheds that they say threaten fisheries that are primary food sources and the livelihoods of indigenous peoples.
In Alaska, the agency responsible for managing in-state fisheries is the Department of Fish and Game.
“I don’t think we’ve hit an emergency yet,” the agency’s Deputy Commissioner Ben Mulligan told CoastAlaska on Friday.
He says there are chinook runs that are stocks of concern: Chilkat, Unuk and King Salmon rivers.
“We haven’t had an indication that we’re reaching that point where we would say overall in the whole of Southeast that those are stocks of concern,” he said.
But Peterman says at the tribal summit, the consensus was governments in both countries aren’t doing enough to protect wild salmon.
She says Canada’s First Nations, Alaska and Washington state tribes pledged to work closer in the future.
“Our message is we’re going to keep on working on this issue to try and come up with some solutions based on traditional ecological knowledge,”
It was the second summit organized by SEITC.
Sarah Lawrynuik - The Narwhal
Oct 11, 2019 5 min read
As American scientists point fingers squarely at Canadian coal mines for high concentrations of selenium in fish in the transboundary Kootenai River, a new Canadian study finds the contaminant has the power to completely wipe out some lake invertebrates
High concentrations of a potentially toxic element have been found in fish in the Kootenai River of Montana and American scientists are pointing the finger at Canadian coal mines for the contamination.
In late September, the U.S. Environmental Protection Agency published a report documenting elevated concentrations of selenium in fish just south of the U.S.-Canada border.
The study found some fish contained selenium concentrations surpassing the U.S. recommended maximum levels. Researchers found similar concentrations of selenium in the eggs of mountain whitefish.
“Selenium loads have been increasing over time in the Elk River, British Columbia, Canada, due to coal mining operations and runoff from associate spoil piles,” the report reads.
The Elk River is a tributary to the Kootenai River in Montana as well as Lake Koocanusa, where the ongoing research is being conducted. Coal mines in the Elk Valley, near Fernie, B.C., have been singled out as the main source of the contaminant.
Teck’s five metallurgical coal mines are all upstream of the transboundary Koocanusa Reservoir. Map: Carol Linnitt / The Narwhal
While selenium is an essential element for survival, overexposure can have devastating effects. In fish, it can lead to facial and spinal deformities, or an absence of the plates that overlay and protect the fish’s gills. In humans, it can lead to hair loss, muscle weakness and decreased brain function, among other issues, according to Health Canada.
Canadian scientist finds some invertebrates wiped out by seleniumMeanwhile in Canada, a growing awareness of selenium as a byproduct of mining, paired with numerous unknowns about its impacts in different aquatic environments, led toxicology researcher Stephanie Graves to take a closer look at its impacts.
Graves, a PhD student at the University of Saskatchewan, spent the last two years dumping various doses of selenium into lake enclosures in Ontario to monitor the effects, both at and above the recommended government thresholds.
Graves monitored the effects of selenium on a number of species, from fish to invertebrates, such as this copepod. Photo: Stephanie Graves / Experimental Lakes Area
Her research was done in two lakes reserved for such research at northwestern Ontario’s Experimental Lakes Area — a collection of 58 lakes cut off from nearly all human influence, used by researchers to conduct studies free of other contaminants and influencing factors.
Graves wanted to address two things in her research: how much selenium accumulated in invertebrates like zooplankton and other aquatic insects, as well as larger species such as fathead minnows. She also wanted to know what elevated concentrations did to these species.
Tiny invertebrates often don’t receive a lot of attention, but they are an integral piece of the aquatic food web.
“What we found so far is that those organisms can be very sensitive to selenium,” Graves said.
In fact, she found that some of the invertebrates were wiped out, or nearly wiped out at higher concentrations of selenium. Mayflies are often used to demonstrate impacts of pollution, Graves explains, because they are so sensitive — and this was no exception.
“They’re an important food source. So losing [mayflies] could have implications for higher trophic level organisms like fish. And invertebrates in general have very important roles in the ecosystem, in nutrient cycling and the transfer of nutrients to higher trophic levels,” Graves said.
The loss of even some of those organisms is significant, she added.
Grave’s research also found significant losses in a kind of zooplankton — another principal food source for fish.
And if you doubted just how important these seemingly small shifts are, Graves only exposed fish to the selenium-dosed environments for six weeks, and that time was enough to notice decreased growth of the fish.
Even the highest concentrations Graves used in her experiments can be found downstream of mines in Canada, she said. However, her research was very purposefully conducted in a lake, to consider what she calls the “worst case scenario” where those high-concentration flows aren’t diluted before arriving at a low-flow body of water.
“These concentrations aren’t unrealistic,” Graves said.
In one of her papers, published in the journal of Environmental Toxicology and Chemistry, Graves suggests that recommended federal guidelines for selenium, which is 1 microgram per litre, may not be sufficient to protect all ecosystems — specifically lakes.
In the end, Graves’ research doesn’t bode well for the health of places such as Montana’s Lake Koocanusa.
A group of scientists and conservationists paddle out on to the Koocanusa Reservoir where they are conducting independent water testing. Photo: Jayce Hawkins / The Narwhal
More regulations to comeWhen reached for comment, a spokesperson for the B.C. Ministry of Environment and Climate Change Strategy said that the provincial government is continuously working with partners in Montana to further selenium research.
“The Province of British Columbia is committed to improving water quality in Lake Koocanusa and its tributary river systems,” the statement read.
The B.C. government said that the consortium is working toward setting a new target for the water system that will be followed by both B.C. and Montana regulators starting in 2020.
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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