A First Nation is launching a legal challenge to the British Columbia government’s approval of a tailings pond dam expansion at the Mount Polley mine.
The approval comes just over a decade after a tailings pond burst at the same mine, spilling more than 20 million cubic metres of mining wastewater into local waterways — one of the province’s worst-ever environmental disasters.
In March, the province approved the raising of the mine’s tailings dam by four metres, saying it was necessary to manage spring runoff.
The Xatśūll First Nation says it is filing for a judicial review of the project approval, arguing the province failed to conduct an environmental assessment, failed in its constitutional duty to consult the nation and did not obtain free, prior and informed consent as required under B.C.’s own Declaration on the Rights of Indigenous Peoples Act.
Xatśūll Kukpi7 (Chief) Rhonda Phillips said the move was a “serious failure” to prevent potential impacts to the nation’s Aboriginal title rights and reconciliation in the wake of the 2014 mine disaster.
“The risks of raising the Tailings Storage Facility dam must be properly understood by Xatśūll and the public before any work is authorized, and we are standing up to demand accountability, transparency and a proper assessment process that respects Indigenous knowledge and law,” Phillips said.
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Speaking at an unrelated event on Thursday, B.C. Premier David Eby acknowledged the “horrific mine disaster” at the site, which he attributed to a lack of oversight of the mine’s engineering.
“I understand why they would be anxious, I just want to reassure British Columbians that we have reformed the oversight of professional bodies like engineers, we have ensured that the oversight is there around the reopening of the mine, around the operation of all mines in the province,” Eby said.
“But I totally get why the community is up in arms, including the Indigenous community.”
Eby said the province remained committed to a new way forward with Indigenous people on development that eschews the courts in favour of Indigenous economic participation — pointing to First Nations involvement in several new mine and wind power projects.
Environment Minister Tamara Davidson and Mines Minister Jagrup Brar have previously said the decision was informed by the Environmental Assessment Office, and that they were satisfied that safety issues have been assessed thoroughly.
Two reviews of the mine disaster led to changes in 2016 on how tailings ponds are regulated, and the government says the proposed dam height increase — from 60 to 64 metres — meets or exceeds all requirements.
Robin Junger, a lawyer with McMillan LLP who specializes in Indigenous and environmental law, but is not involved with the case, said the NDP’s DRIPA legislation set the government up for a challenge of this type.
“I think it is really creating challenges in circumstances where government is committed to moving things forward,” he said.
Junger argued that the B.C. law actually conflicts with the Canadian constitution on established Indigenous rights and the duty to consult.
“The Supreme Court of Canada has actually given quite clear guidance on what the duty to consult does and does not include,” he said.
“It’s a very important duty, it can’t be disregarded, but it makes clear that at the end of the day the government must make decisions and specifically says they have to reasonably balance Indigenous and non-Indigenous interests, and that First Nations don’t get a veto — the Supreme Court of Canada has said that numerous times.”
The Xatśūll nation, meanwhile, said it does not oppose development, so long as the projects are responsible, sustainable and done in partnership with Indigenous nations, respecting their rights and title.
Along with the judicial review, the nation is seeking an injunction to halt work on the dam expansion until the case is heard.
— with files form the Canadian Press
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