Fish Lake is a test for Canadian environmental law
Rabble.ca has just published the following opinion piece from West Coast Environmental Law's Josh Paterson, which we reproduce below for our readers.
Fish Lake is a test for Canadian environmental law
This mine would permanently destroy an area that is a place of worship for our people, a cultural school for our children, and a bread basket that has fed our people for centuries.
- Chief Marilyn Baptiste of the Tsilhqot'in
Should Canada allow mining companies to drain and kill pristine lakes?
Wilderness lakes are at the heart of Canadian identity, and most people are surprised and shocked when they hear that the Canadian government is considering giving the green light to several proposals to do just that.
Fish Lake is aptly named. Renowned for its 85,000 rainbow trout, the Tsilhqot'in people have fished, hunted, trapped here for centuries -- they regard Teztan Biny (Fish Lake) as a sacred place. Fish Lake is one of the best places to fish in the Cariboo/Chilcotin. Grizzly, moose, mule deer, long-billed curlew, flammulated owl and other wildlife depend upon the lake.
However, Taseko Mines Ltd. plans to drain Fish Lake. If this happens, up to 700 hundred million tons of tailings and waste material -- including toxic metals such as arsenic, mercury, lead, and cadmium -- would be dumped into new a tailings pond created by the flooding of Little Fish Lake and Upper Fish Creek.
The impact of the Fish Lake proposal is grim. An independent expert review panel appointed by Ottawa recently panned the proposal. The expert panel concluded in its report in July that the mine proposal would:
- Create "high magnitude, long-term and irreversible effects" on fish, significant effects on grizzly bear, and other significant adverse environmental effects;
- Permanently destroy an important cultural and spiritual area used by the Tsilhqot'in people, and lead to long-term impacts on the physical and mental health of the Tsilhqot'in.
In many cases, the panel stated that it simply could not recommend mitigation measures for the severe damage it foresees.
This report is a remarkable finding, given that federal environmental assessments almost never turn down a project.
For example, a great many Alberta tar sands projects that seriously degrade the natural environment have received federal approval based on findings of no significant adverse environmental impacts, after mitigation.
In fact, in almost 20 years of assessments under the Canadian Environmental Assessment Act -- including dozens and dozens of major projects -- only two previous Panels have found significant adverse environmental impacts (the Kemess North mine in B.C. -- which, like the Taseko Mine proposal would have converted a lake into a tailings pond -- and the Whites Point Quarry in Nova Scotia). Ottawa rejected the projects in both cases.
One would hope that precedent would be followed, and that the Fish Lake proposal would be turned down. However, there are troubling signs. When Ottawa appointed the Fish Lake Review Panel, it refused to authorize the panel to actually make a recommendation against the project.
A cynic might suggest that Ottawa was seeking to avoid a repeat of the Kemess North mine assessment, where the panel recommendation against a similar proposal made it politically impossible for Ottawa to approve the project.
It's just in the last decade that Ottawa changed the law to allow companies to dump mine waste into lakes. Four years ago, the Harper government approved destruction of two Newfoundland lakes, setting a dangerous precedent. Since then, mining corporations have applied to use 11 lakes as toxic dump sites.
Fish Lake and the other lakes across the country facing destruction raise fundamental questions about what we value as a society and what our laws should protect:
- Why do our laws even allow fish-bearing lakes to be converted into waste dumps for toxic tailings?
- How do we ensure that our government accurately evaluates the impacts of environmentally destructive projects and reject the most environmentally destructive projects?
- What priority do we place on cleaning up after ourselves and protecting our natural environment on which all life depends?
With the federal government seriously weakening environmental assessment in the budget that passed this month, and Parliament gearing up for a full-scale review of environmental assessment law in the Fall, Canadians need to answer these questions.
The survival of Fish Lake is an issue for all of us. In its decision about Fish Lake, Ottawa must heed its own independent expert review panel -- and reject the lake's destruction. But, equally importantly, Ottawa must amend the law so that fish-bearing lakes are off limits to mining companies looking for a place to dump their waste and maintain and strengthen Canada's environmental assessment laws so that the full impacts of environmentally destructive projects are fully evaluated.
Related Post: Lessons from the Prosperity Mine Environmental Assessment
Comments
Fish Lake
It is true that the federal government, through the Fisheries Act and the Metal Mining Effluent Regulations (MMER), allows the destruction of fish bearing waters. But why is your article silent with respect to the provincial governments' role in all of this? You can be sure that not a single lake could be used for tailings management if the provinces, as the landowners, did not approve of such use (from BC to Newfoundland). Indeed, it is mostly out of deference to provincial jurisdiction with respect to natural resources that the Department of Fisheries and Oceans (DFO) is compelled to authorize the "scheduling" of lakes. By focusing on the federal government, you are allowing provincial politicians to make bad environmental decisions without any kind of accountability.
The Provinces and Schedule 2 Lakes
We entirely agree that the provinces have a crucial role to play in protecting lakes and streams from being converted into tailings ponds. This is true not just because the provinces claim ownership of the affected land (a claim which ignores Aboriginal claims), but also because most provinces have laws against destruction of water bodies. The BC government is indeed responsible for giving the go ahead for the destruction of Fish Lake. Indeed, I think we've made it clear what we thought of the BC environmental assessment of Fish Lake elsewhere.
That being said, I don't agree that the scheduling of lakes is occuring only out of "deference" to the provinces. Not only is the same thing occuring in the federally managed Territories, but the Federal government's authority and responsibility is legally clear - only the political will is needed. Fisheries and Oceans Canada and the Federal Government need to bear a fair share of the responsibility for allowing the destruction of these water bodies for mining purposes.
An op-ed, due to length, cannot focus on every issue. For this op-ed we chose to focus on the federal process for two reasons. First, because Rabble.ca is read by a national audience. Second, because the federal EA report has recently been released, raising major issues about the Prosperity Mine, and posing a significant challenge to the project's approval.
Oh, and BTW, although it is definitely true that MMER does explicitly provide for the destruction of fish habitat, don't be too sure that the Fisheries Act does. I'll expand on that thought in a future blog post.
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