Charges dismissed against Vale N.L.

Judge highlights failures of Environment Canada in Fisheries Act case

Published on January 20, 2016

Vale Newfoundland and Labrador did not violate the federal Fisheries Act in its work at the Voisey's Bay mine site in October 2011, a provincial court judge has found.

The decision from Judge James Walsh was handed down over the course of nearly an hour this morning, with the judge pointing to gaps in evidence collection in the case.

He also stated his belief the company was diligent in addressing failed environmental compliance testing at the time.

Special coverage: Vale in Court

Vale is permitted by both levels of government to treat liquid waste from the mine and release it into the waters of Edwards Cove, Anaktalak Bay, on the Labrador coast. That liquid effluent must remain within set parameters so as not to harm the surrounding environment.

The specifics are established in the Metal Mining and Effluent Regulations of the Fisheries Act and testing of the mine discharge — “acute lethality testing” involving rainbow trout — is used to indicate whether or not the company is meeting all requirements.

While the company experienced test failures periodically from 2008 to 2011, the case in question focused on three failed tests in October 2011.

As a result, the company was charged with one count of depositing a deleterious substance, dangerous to fish, into the nearby bay. It was also charged with failing to take all reasonable measures, once the environmental test was failed, to prevent damage to fish and fish habitat.

In dismissing the charges, Walsh highlighted questions left unanswered by the Crown, but also the lack of independent work by Environment Canada enforcement officers.

Environment Canada relied on samples and evidence from the company, meaning the regulator was unable to directly testify to how samples being gathered in northern Labrador and tested in St. John’s were handled and transported.

They could not say if anything may or may not have altered the samples on route.

“Neither officer (Gary) Kennell nor officer (Ron) Hunter were fully aware of the difference between compliance samples and legal samples based on the testimony,” Walsh said, naming the two officers responsible.

Hunter has since retired. Kennell was in court for the decision, but made no comment after the decision.

“If the court has a reasonable doubt … then Vale must be acquitted on both counts,” Walsh said.

Beyond that, he noted the lengths the company went to in order to address problems with environmental testing evident since at least 2008. Vale was experiencing many failed tests and spent millions to make additions to the on-site effluent treatment system. It also create an investigative team to determine the root of the test failures.

The company argued in court samples were likely being affected by a rapid drop in pH level from the point in time they were collected, to when they arrived for testing in St. John’s 24 to 48 hours later and then to when the test was ultimately completed, noting conditions in transit.

But while Environment Canada took issue with the company’s investigation, Walsh noted, the provincial government’s enforcement division was presenting a different message, one of continued support for the company’s efforts to get to the root of the problem.

“I find the decision to continue to discharge (effluent from the mine) was reasonable on a balance of probabilities,” he said.