Vale paid to move about 1,400 fish from Sandy Pond to other ponds near Long Harbour. Then, the company claimed their former home as a containment area for tailings from its new hydromet nickel processing plant.
Arguments on whether or not the move should ever have been allowed were part of the Sandy Pond Alliance’s Federal Court challenge Thursday morning in St. John’s.
Justice Elizabeth Heneghan is now taking time with the submissions before issuing her decision.
The legal challenge was launched in 2010 and is attacking existing federal regulations, under the Fisheries Act, allowing for the use of freshwater bodies like Sandy Pond as containers for mine waste.
Lawyer Owen Myers, representing the alliance, said in his final remarks the group believes standing regulations do not preserve “the conservation function of the Act” and are, essentially, beyond what should be able to be established under the current law.
He also raised the subject of compensation for lakes and ponds that are lost to mining activities — the so-called “no net loss” requirement. The compensation required for the loss of a fish habitat is “just so basically sketched out,” he said.
Yet, in the case of Sandy Pond, Vale offered at least 12 options for tailings storage — options vetted as part of the project’s review under the Canadian Environmental Assessment Act.
Using Sandy Pond as a tailings impoundment area has required investment in environmental study, site preparation and, of course, the fish transfer.
“Prior to the start of fish transfer, samples were collected and sent to the Atlantic Veterinary College in Prince Edward Island where both disease and genetic profiling was performed,” stated a company newsletter in November 2012.
The fish, mostly trout, were taken out of the pond by staff with AMEC Earth and Environmental in two campaigns. The first was from July-September, 2011 and the second in June 2012, with about 700 collected in each run.
AMEC staff used live-capture traps and tended gill nets to catch the fish and remove them from the pond. They also fished with barbless hooks. The fish went into tanks and were then transferred to nearby Burns Path Pond and Maturin Pond.
Vale has added three dams at the Sandy Pond site — increasing the capacity of the impoundment area.
The company also went about grouting — filling in points where any risk of seepage was identified.
Liners have been installed, along with five monitoring wells the provincial Department of Environment will be free to access.
Vale will be adding its own bi-weekly and monthly sampling of groundwater from the area for laboratory analysis, as ongoing assurance the holding area is acting as designed.
The site formerly known as Sandy Pond will start being filled with hydromet tailings when the processing facility begins production, scheduled for later this year.
The preparation of the impoundment area illustrates a fundamental argument of supporters of the Sandy Pond Alliance. “What you’ve done here is you’ve eliminated a lake,” Myers said.
Yet Sandy Pond is not the only pond affected by construction at Long Harbour.
Two other, unnamed, ponds were filled in as part of the processing plant’s construction.
And water for the processing plant is being sourced from Rattling Brook Big Pond. According to a 2008 filing to the Canadian Environmental Assessment Agency, the hydromet process will need about 4.4 million cubic metres of water a year.