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Mount Polley Mine private prosecution: Stepping up to demand accountability

October 23, 2016

Congratulations to MiningWatch Canada, which last week launched a private prosecution laying charges against the BC government and the Mount Polley Mining Corporation (MPMC) for their roles in the 2014 Mount Polley Mine disaster.

MiningWatch seeks to hold MPMC and the Province to account for the August 2014 tailings pond breach that released 24 million cubic metres of arsenic-containing wastewater into nearby waters and clogged important salmon habitat with silt and trees. West Coast Environmental Law’s Environmental Dispute Resolution Fund provided financial support for this important legal action.

Why did MiningWatch need to launch a private prosecution? It should have been a simple matter for the federal and provincial governments to investigate and lay charges in this matter – the Fisheries Act prohibits the deposit of substances that are harmful to fish into fish bearing waters and provides all the authority needed to lay charges. Unfortunately, the federal government’s investigation into the Mount Polley tailings pond failure has been going on for over two years, with no signs of producing results. No charges have been laid by any level of government despite clear evidence to support violations of the Fisheries Act.

Ugo Lapointe, Canada Program Coordinator for MiningWatch Canada explained:

“We are all concerned that almost 30 months later, despite clear evidence of impacts on waters, fish, and fish habitat, no sanctions and no penalties have been brought forward by any level of government.”

In the face of a disaster like Mount Polley, swift action is essential to send a message to industry that breaking environmental laws will not be tolerated. When the government fails to act in a timely manner, as in this case, citizens can bring private prosecutions to enforce Canada’s environmental laws.

Lilina Lysenko, lawyer for MiningWatch, states:

“The [Criminal Code] specifically provides an incentive for private persons to enforce federal laws like the Fisheries Act in order to ensure the protection of public resources, such fish and fish habitat, even if against the Federal or Provincial Crown. It’s a valuable constitutional safeguard to protect the public interest against inertia or possible partiality on the part of authorities.”

Private prosecutions are currently enjoying something of a renaissance in BC, having been used successfully in cases against open water salmon farms and (in another case involving Lilina Lysenko and the EDRF) the Lemon Creek jet fuel spill

Given the magnitude of the Mount Polley disaster, MiningWatch’s private prosecution against Mount Polley Mining Corporation and the Provincial Government is an essential tool for accountability in a situation where, so far, environmental laws have been more honoured in the breach than the observance.

By Erica Stahl, Staff Counsel