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Is Prosperity Mine illegal?

September 14, 2010

Taseko Mines is hoping that Prime Minister Harper will give the go ahead for its controversial Prosperity Mine at Fish Lake (Teztan Biny) in Tsilhqot'in Territory – in the form of an environmental assessment certificate which could be granted at any time).  West Coast has suggested that this decision is a test of the integrity of the Canadian Environmental Assessment Act, and, along with the Assembly of First Nations and many others, have joined national calls for the Prime Minister to refuse Taseko the certificate. 

Prosperity.jpg

But let’s say the Prime Minister does issue the environmental certificate, despite the considerable public opposition?  Is it then clear sailing for Taseko Mines and the Prosperity Mine?

West Coast Environmental Law believes that the plans to destroy Fish Lake, and to destroy other fish bearing lakes and streams across Canada, are illegal.  My article, Fish Lakes and Tailings Ponds, setting out the legal case against allowing mining companies to destroy fish bearing lakes, will be published in the Fall 2010 volume of the Journal of Environmental Law and Practice.  This blog post will give you a sneak peak of the arguments that are more fully developed in my article (scheduled for publication in October). 

What is Schedule 2?

So why does the federal government think that it’s legal to allow mining companies to convert fish bearing lakes into toxic waste dumps in the first place?  Well, because of Schedule 2 of the “Metal Mining Effluent Regulation” (MMER, for short), of course.  Under section 5 of the MMER a mining company can deposit whatever it likes into fish bearing waters that are listed in Schedule 2 to the MMER.  MiningWatch Canada has written extensively about the history of Schedule 2 and the fight to protect fish bearing waters from legally-authorized destruction under section 5. 

So although it’s offensive, the destruction of Fish Lake and the other streams and lakes already on, or being considered for inclusion on, Schedule 2 has been widely viewed as legal. 

So why is Schedule 2 illegal?

Although section 5 of the MMER is pretty clear that lakes can be converted into tailings ponds, the MMER is only a regulation of the Fisheries Act.  If the Fisheries Act does not authorize regulations that allow the destruction of fish habitat on a large scale, then the MMER cannot legally authorize them either. 

The federal government points to broad powers in the Fisheries Act to make regulations defining, among other things:

  • What deleterious substances (substances poisonous to fish) can be deposited;
  • Where they can be deposited;
  • Who can deposit them; and
  • The circumstances under which they can be deposited.

These powers are undoubtedly broad, and the federal government would probably argue that this provision indicates that Parliament intended to give the federal cabinet a near complete discretion to allow the deposit of just about anything into fish habitat, just about anywhere. 

In a discussion on West Coast Environmental Law’s Facebook Page, in response to our press release calling on the Prime Minister to reject the environmental assessment certificate, one fan commented:

Our governments are determined to destroy the natural environment. We need to remind them that these resources are not theirs to give away or sell off.

This goes to the heart of the argument.  As I’ve argued for some years, the view that the public has a right to a healthy environment transforms how environmental laws should be understood by the courts.  My latest paper applies this insight to the Fisheries Act, and the MMER:

Schedule 2 of the MMER has very direct and devastating impacts on the public’s rights in respect of fish habitat in the affected water bodies.  While an approach to statutory interpretation that ignores the public’s right to fish might presume that Parliament intended to allow the regulation making powers in the Fisheries Act to be used so broadly, full recognition of the existence of these rights supports a narrower interpretation.  Such an approach would require the federal government to point to a clear and plain legislative intent to authorize regulations which have such an impact.  There is nothing in the Fisheries Act which demonstrates such an intention, and the MMER should be held to be [outside the authority of] the Act.

In order to get to this conclusion, I need to demonstrate that the public does have a right to fish in Fish Lake and other inland water bodies.  This is actually a surprisingly complicated legal question in much of Canada (some of the case law suggests that the public right to fish only exists in water bodies with tidal action), and my paper discusses the issue at some length.  Fortunately for Fish Lake, however, the situation has been simplified in British Columbia through a brief statute known as the Hunting and Fishing Heritage Act, which states simply:

A person has the right to hunt and fish in accordance with the law.

A decision to destroy Fish Lake will deprive British Columbians of the right to fish in Fish Lake, and the Fisheries Act should be interpreted in a way that protects those public rights. 

Because of this legislation, as well as the history of public fishing rights in Western Canada, a legal challenge to Schedule 2 of the MMER may be best brought in British Columbia. 

I’m not the first to argue that Schedule 2 goes beyond the authority of the Fisheries Act.  A legal challenge has already been filed in Newfoundland by the Sandy Pond Alliance in an effort to protect another lake that has been listed on Schedule 2.  But the public rights argument represents an important new argument for those seeking to challenge the legality of Schedule 2.  We have funded the Center for Science and Public Participation (CSP2) through our Environmental Dispute Resolution Fund to examine opportunities to bring a legal challenge in British Columbia based upon this argument. 

Andrewblogphoto.jpgBy Andrew Gage, Staff Lawyer