News

News Update on Mount Polley Tailings Pond Disaster and Adaptive Management Perspective

Mount Polley Update
The B.C. Ministry of Environment (MOE) released some further information on the Mount Polley Tailings Pond Breach yesterday August 7, 2014.

Water test results from the Mount Polley tailings pond breach were released by the MOE yesterday. MOE reports that of the chemical and physical contaminants they looked at from samples collected near Likely and the North Shore of Quesnel Lake, none exceeded BC or Health Canada Drinking Water Guidelines. MOE also says “Contaminant concentrations …were well below aquatic life guidelines…” which MOE interprets to mean that “impact to aquatic life and fish is not expected”. 

•  MOE Memorandum, Quesnel Lake Water Quality of August 7, 2014
• Aquatic life guidelines data
• Drinking water data

An MOE Factsheet dated August 7 clears up some facts regarding the Mount Polley mine disaster. The Ministry of Energy and Mines did a geotechnical inspection in September 2013 and made no orders relating to the mine’s tailings facility. MOE also says that the mine was doing “visual dam inspections and measuring freeboard at an acceptable frequency.” The cause of the breach remains unknown. Mining companies should pay close attention to any investigation results and legal proceedings flowing from this incident as it may affect industry standards and due diligence requirements.

• MOE Factsheet, August 7, 2014

Looking for a Silver Lining
Speaking very broadly, Environmental assessment laws in Canada generally rely on the concept of adaptive management, such that they enable development and require early assessment of adverse environmental consequences and ongoing monitoring and mitigation measures that respond to new information and changed circumstances to avoid causing significant adverse environmental effects (see e.g. Pembina Institute for Appropriate Development v. Canada (Attorney General) 2008 FC 302 at paras. 32 – 3).  As the Federal Court of Appeal in Canadian Parks & Wilderness Society v. Canada (Minister of Canadian Heritage) explained, adaptive management is used to allow projects to proceed while maintaining ecological integrity:

The concept of “adaptive management” responds to the difficulty, or impossibility, of predicting all the environmental consequences of a project on the basis of existing knowledge. It counters the potentially paralysing effects of the precautionary principle on otherwise socially and economically useful projects. The precautionary principle states that a project should not be undertaken if it may have serious adverse environmental consequences, even if it is not possible to prove with any degree of certainty that these consequences will in fact materialise. Adaptive management techniques and the precautionary principle are important tools for maintaining ecological integrity.

Canadian Parks & Wilderness Society v. Canada (Minister of Canadian Heritage), 2003 FCA 197 at para 24.

When looking for a silver lining in the face of a disaster such as the one B.C. is currently facing, it may help to believe that the findings of the government investigators will help ensure that no other tailings pond facilities will experience a similar breach.

DISCLAIMER: NOT LEGAL ADVICE.  This article is for information purposes only and is not intended to be relied on as legal advice. You should not rely on, or take or fail to take any action, based upon this information, or disregard professional legal advice or delay in seeking legal advice because of something you have read on this site or in this article. The author, Shane R. Hopkins-Utter would be pleased to discuss resolutions to specific legal concerns you may have.