Judge suggests amended charge in illegal dumping case

Ashley Fitzpatrick
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Decision coming on application for particulars by Vale lawyers

An alleged case of illegal dumping by Vale Newfoundland and Labrador into Anaktalak Bay, near the Voisey’s Bay nickel mine site, is moving towards trial.

At provincial court in St. John’s Monday, Judge Jim Walsh heard arguments on an application by Vale’s lawyers for some further particulars from the Crown, ahead of the back and forth on the charges.

The company is charged under the federal Fisheries Act for allegedly dumping toxic material — acutely lethal effluent — into the waters of the Labrador bay. The charges include one count of illegally depositing waste into waters frequented by fish, one count of failing to take reasonable measures following the dumping to prevent the occurrence and one count of failing to provide relevant monitoring reports.

Crown attorney Mark Steers argued there has been extensive back and forth with Vale’s lawyers since the charges were laid and the company has already pleaded not guilty to all three charges.

The issues of the case, he suggested, are clear at this point to the attorneys.

“It’s not me holding cards to my vest,” Steers said in arguments. “Whatever cards I have are exposed.”

Earlier in the day’s hearing, Vale’s lawyers suggested there were too many cards in play and too many avenues of inquiry, for it to be fair as the case goes to trial.

The charge of failing to take “reasonable measures” was particularly at issue, with a lack of definition of what measures to which the Crown might be referring.

“The disclosure materials here are extensive. They identify many measures taken by the company to prevent the deposits,” said company lawyer Doug Hamilton, suggesting the Crown be called to specify what measures it feels were not taken when required.

Lawyer Michael Rosenberg, also representing Vale, argued further particulars could help narrow the scope of the trial, reducing the time required, “and keeping this trial from wandering all over the shop.”

The lawyers for Vale Newfoundland and Labrador also said the government has failed to disclose any evidence of any negative “real world” impact on the bay as a result of the alleged discharge of waste.

The illegal dumping is said to have taken place between Oct. 4, 2011 and Oct. 31, 2011.

Both sides offered case law in support of their for and against on the application.

Walsh reserved judgement on the issue of particulars, but did say he plans to look at amending the second charge — relating to the reasonable measures and alleged inaction by Vale — before the trial. He suggested the change should make the charge clearer for all involved.

A trial is expected later this year.



Geographic location: Labrador bay

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