Federal Court rules against Sandy Pond Alliance

Approvals for Long Harbour project well within government’s legal right

Ashley Fitzpatrick afitzpatrick@thetelegram.com
Published on November 1, 2013
Heavy equipment prepares Sandy Pond for its new use as a tailings impoundment area, for waste from the Long Harbour hydromet nickel processing facility. — File photo courtesy of Vale

The Sandy Pond Alliance to Protect Canadian Waters has lost its case before the Federal Court over the fate of Sandy Pond, near Long Harbour.

The alliance was formed in 2009 and pressed a case based on the transformation of the pond into a tailings impoundment for Vale’s multibillion-dollar hydromet processing plant at Long Harbour.

Final hearings on the legal case were held at Supreme Court in St. John's in late February.

The alliance argued 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 mining effluent - at least not under the existing regulations.

The pond has since been transformed into a tailings impoundment area for Vale's new hydromet processing facility.

In final arguments, alliance lawyer Owen Myers said changes to the federal Fisheries Act in 2002 - specifically the addition of Metal Mining Effluent Regulations allowing for the designation of a pond or lake as a tailings impoundment - were not in line with existing statutes and the very purpose of the Fisheries Act.

In a decision issued yesterday, Justice Elizabeth Heneghan dismissed the alliance’s application, laying out how the regulations and the Act stand.

“In the first place, the Applicant is mistaken when asserting that conservation is the paramount purpose of the Act,” she stated in her 38-page decision.

“The fact that regulations enacted pursuant to the Act may have negative environmental consequences does not, per se, render those regulations invalid. Parliament legislated the provisions allowing the enactment of the regulations in question here. There is no basis for judicial intervention,” she stated.

“The will of the people, with respect to legislation, can be expressed at the ballot box.”

She also noted an earlier Supreme Court of Canada ruling, on a different case, wherein the Court recognized the many, sometimes competing, interests navigated and managed under the Fisheries Act.

As for the devastation to Sandy Pond: “There is no doubt that the said residue, that is the tailings (from the Long Harbour plant), contains deleterious substances and that these substances will be deposited in Sandy Pond. While this prospect stirred public opinion and precipitated this litigation, the use of Sandy Pond in this manner is not illegal but expressly authorized by the (referenced) provisions of the Act,” she stated.

In an email, Myers said the decision is under review and the alliance’s directors will be meeting Tuesday for discussion. At least for now, he has declined further comment.