Sandy Pond. — Telegram file photo
Sandy Pond Alliance lawyer Owen Myers offered some final arguments this morning in court in St. John's.
Justice Elizabeth Heneghan has taken all of the filings and arguments and will begin work on her decision.
In his final arguments, Myers raised the issue of compensation for lakes and ponds lost to mining activities.
"Our issue with it, our difficulty with (it), is it's a quantitative rather than a qualitative situation," Myers said.
The compensation required is “just so basically sketched out," he said.
The core argument in the case is about the foundation for the current regulations allowing for the creation of tailings ponds using freshwater bodies.
That said, according to alliance members, the compensation idea is an important consideration.
There is no saving Sandy Pond. The Sandy Pond Alliance formed in 2009, objecting to plans to use the pond as a container for waste from Vale’s hydromet processing facility at Long Harbour.
Since 2010, the group has pressed a Federal Court case, arguing the government should not have been able to OK the use of the pond, or any other natural water body in Canada, as an impoundment for such effluent — at least not under the current regulations.
All the while, work on altering Sandy Pond for its new purpose has progressed. Fish have been relocated. Vale’s processing plant has been built.
Final hearings on the legal case began at Supreme Court in
St. John’s Wednesday morning.
In the cold outside — with signs reading “Clean Water for our Grandchildren” and other messages — 15 to 20 people gathered before the start of the session, in support of the alliance action. They had differing views of what exactly the legal challenge might do, other than it could protect other ponds and lakes from the same fate as Sandy Pond.
“This is an example of many, many lakes across the country,” said supporter Maude Barlow of the Council of Canadians. “If we lose ... the argument around Sandy Pond, does that mean we don’t have an argument for the other lakes?”
In session, alliance lawyer Owen Myers argued changes to the federal Fisheries Act in 2002 — specifically the addition of Metal Mining Effluent Regulations allowing the designation of a pond or lake as a tailings impoundment — are not in line with existing statutes and purpose of the Fisheries Act. “This just bypasses the whole act,” he told the court, arguing the power to list any body of freshwater as a waste area was “sort of out there by itself.”
The other lawyers in the room — four in total — argued he and the Sandy Pond Alliance members incorrectly believe environmental protection, habitat protection, is the overarching purpose of the Fisheries Act.
“It has to be looked at from a broader perspective,” argued government lawyer Lori Rasmussen, suggesting the act has always been about balancing different interests in fish-bearing waters. She said ponds and lakes were being used as tailings dumps before the federal mining effluent regulations were brought in. Before the 2002 regulations, she argued, there was a standing requirement for a ministerial authorization for any tailings pond. In addition, there was a standing “no net loss” policy for fish habitat.
Under the current system, she said, that policy of “no net loss” has become a stricter, legislated requirement — the result of a change to the regulations in 2006. And a ministerial OK is no longer enough to create a tailings pond. A regulatory amendment is now needed to make it happen.
Adding to the argument, Vale lawyers said any proposal for a tailings pond comes only after a mining project is reviewed and approved under the Canadian Environmental Assessment Act. Under this act, alternatives for waste storage must be considered.
Myers argued economics versus environment, saying companies are simply using the current regulations to avoid paying to build waste containers, saying “just put a pipe in that lake.”
Vale’s two lawyers said the reality is not so simple and there are environmental consequences no matter what option is selected for waste storage. For example, they argued, alternatives at Long Harbour would potentially cover 70-100 hectares of terrestrial habitat.
Ultimately, Myers insisted cabinet did not have the power to add the effluent regulations and the ability to OK the use of freshwater ponds for effluent storage.
The others argued those powers are spelled out both in the act and through findings in past legal cases. The government lawyer has requested the application be dismissed.
The alliance’s lawyer will have an opportunity this morning to respond to all statements, before a decision.