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Factual Record: Bc Mining Submission Factual Record BC Mining Submission (SEM-98-004) Prepared in Accordance with Article 15 of the North American Agreement on Environmental Cooperation Table of Contents 1. Executive Summary . 7 2. Summary of the Submission . 12 3. Summary of Canada’s Response. 14 4. Scope of the Factual Record . 17 5. Summary of Other Relevant Factual Information and Facts Presented by the Secretariat with Respect to Matters Raised in Council Resolution 01-11 . 19 5.1 Information Gathering Process . 19 5.2 Meaning and Scope of Fisheries Act s. 36(3) . 23 5.2.1 Introduction. 23 5.2.2 S. 36(3) and Mining. 24 5.2.3 Responses to Alleged Violations of s. 36(3) Provided for under the Fisheries Act . 26 5.2.3.1 Information Requests and Orders from the Minister . 26 5.2.3.2 Prosecutions . 27 5.2.3.3 Defenses to Charges under s. 36(3) . 29 5.2.3.3.1 The Defense of Due Diligence . 30 5.2.3.3.2 Defenses Based on Actions of the Regulator . 34 5.2.3.4 Court Orders Upon Conviction . 36 3 4 FACTUAL RECORD: BC MINING SUBMISSION 5.2.3.5 Injunctions. 37 5.2.3.6 Civil Suits for the Recovery of Remediation Costs . 37 5.3 Policies Regarding Compliance Promotion and Enforcement of s. 36(3) of the Fisheries Act at Abandoned Mines . 37 5.3.1 The Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy . 39 5.3.2 The Decision to Prosecute . 43 5.3.3 Streamlining Environmental Protection . 46 5.3.3.1 Federal-Provincial Harmonization . 47 5.3.3.2 Environmental Harmonization and Mining . 57 5.3.4 Compliance Promotion at Contaminated Sites including Abandoned Mines . 61 5.3.4.1 The National Contaminated Sites Remediation Program . 61 5.3.4.2 Initiatives in Relation to Abandoned Mines. 65 5.4 Alleged Violations of s. 36(3) at the Britannia Mine . 75 5.5 Canada’s Actions in Regard to Alleged Violations of s. 36(3) of the Fisheries Act at the Britannia Mine . 81 5.5.1 1974-1994 / Relevant Historical Information . 84 5.5.2 1994-1996 / Orphan Sites Funding and the Search for a Buyer . 96 5.5.3 1997-2001 / Scientific Advances, Remediation Proposals and Potentially Responsible Parties . 104 5.6 Whether Canada is Failing to Effectively Enforce s. 36(3) of the Fisheries Act in the Context of the Britannia Mine. 124 TABLE OF CONTENTS 5 5.6.1 Current Status . 124 5.6.2 Whether Current Initiatives Will Stop the Deposit of Deleterious Substances at the Britannia Mine in the Shortest Possible Time and in the Long Term . 126 6. Closing Note. 132 Figures Figure 1 Map . 75 Figure 2 Aerial photograph of the Britannia Mine and Howe Sound showing key locations. 76 Figure 3 Graphic Representation of Pollution Problem at the Britannia Mine . 77 Appendices Appendix 1 Council Resolution 01-11, dated 16 November 2001 . 135 Appendix 2 Overall Plan to Develop a Factual Record, dated 14 December 2001 . 139 Appendix 3 Comments of Canada and the United States on the Overall Plan to Develop a Factual Record, dated 14 and 23 January 2002 . 147 Appendix 4 Request for Information, dated January 2002 . 155 Appendix 5 Request for Additional Information, dated 8 May 2002 . 163 Appendix 6 Section 42 of the Fisheries Act, R.S.C. 1985, c. F-14. 171 Appendix 7 List of Information Gathered by the Secretariat. 177 Appendix 8 Timeline . 199 Appendix 9 Acronyms and Defined Terms . 205 6 FACTUAL RECORD: BC MINING SUBMISSION Attachments Attachment 1 Council Resolution 03-14 . 211 Attachment 2 Comments of Canada . 215 Attachment 3 Comments of the United States of America . 231 1. Executive Summary Articles 14 and 15 of the North American Agreement on Environmen- tal Cooperation (“NAAEC”) establish a process allowing residents of Canada, Mexico and the US to file submissions alleging that a Party to the NAAEC (Canada, Mexico or the United States) is failing to effec- tively enforce its environmental law. Under the NAAEC, this process can lead to the publication of a factual record. The Secretariat (“Secretar- iat”) of the North American Commission for Environmental Coopera- tion (“CEC”) administers the NAAEC citizen submissions process. In June 1998, Sierra Legal Defence Fund, on behalf of Sierra Club of British Columbia, Environmental Mining Council of British Columbia, and Taku Wilderness Association (the “Submitters”), filed a submission with the Secretariat alleging the systemic failure of the Government of Canada to enforce s. 36(3) of the Fisheries Act (“s. 36(3)”) against mining operations in British Columbia, in particular as regards violations of s. 36(3) caused by acid rock drainage (“ARD”). S. 36(3) prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by regulation. In May 2001, the Secretariat notified the Coun- cil that the submission warranted preparation of a factual record and recommended preparing a factual record regarding Canada’s actions to enforce and promote compliance with s. 36(3) at forty-two known or potentially acid-generating mines referenced in the submission. In November 2001, the CEC Council instructed the Secretariat “to prepare a factual record for the assertion that Canada is failing to effectively enforce s. 36(3) with respect to the Britannia Mine,” one of the mines referenced in the submission. The Britannia Mine is located on the eastern shore of Howe Sound in British Columbia, Canada, on the road from Vancouver to Whistler. The mine was in operation from 1904-1974, producing millions of tons of copper and zinc that was concentrated on-site and shipped to the US for further processing. The mine is located inside Mount Sheer, which rises to a height of 4,600 feet over several kilometers from the shore. Inside Mount Sheer, 210 kilometers of abandoned mine workings act as con- duits for rain water and snowmelt that enter open pits at the summit and flush out of a portal located at the base of the mountain. The acidic, 7 8 FACTUAL RECORD: BC MINING SUBMISSION metal-laden effluent, which is acutely lethal to fish, is channeled to a sub- merged outfall and discharged, untreated, into the fish-bearing waters of Howe Sound. An Environment Canada employee has called the Bri- tannia Mine the single-worst point source of metals pollution in North America. Regulations adopted in 1977, and updated in 2002, under s. 36(4) of the Fisheries Act to authorize the discharge of mine effluent to water fre- quented by fish do not apply at mines such as Britannia that closed down before June 2002. At these mines, the s. 36(3) general prohibition on depositing deleterious substances into waters frequented by fish contin- ues to apply. The courts have held that ARD (see above) is a deleterious substance for the purpose of s. 36(3). Under s. 36(3), no proof is required that a deleterious substance actually caused harm to fish. All that is required to establish a violation of s. 36(3) is proof that the ARD is acutely lethal to fish and is being deposited into water frequented by fish. Experts present courts with facts that establish a violation of s. 36(3), and courts decide whether, in regard to those facts and other consider- ations, a person has committed a contravention punishable as an offence under the Fisheries Act. Under the Fisheries Act Habitat Protection and Pollution Preven- tion Provisions Compliance and Enforcement Policy (the “Compliance and Enforcement Policy”) adopted by Fisheries and Oceans Canada and Environment Canada in 2001, “[e]nforcement is achieved through the exercise or application of powers granted under legislation.” The Fish- eries Act provides a range of potential enforcement responses to alleged violations of s. 36(3), including information requests or orders by the Minister of Fisheries and Oceans; prosecutions; injunctions; court orders upon conviction; and civil suits for the recovery of federal government remediation costs. Despite the existence of facts consistent with ongoing violations of s. 36(3) at the Britannia Mine, Canada has taken no enforcement action under the Fisheries Act. Environment Canada has no enforcement file regarding the Britannia Mine, but has kept numerous compliance promotion-related files in respect of the site. The Compliance and Enforcement Policy states that enforcement measures are directed towards ensuring that violators comply with the Fisheries Act within the shortest possible time and that violations are not repeated. Under the Compliance and Enforcement Policy, to identify an appropriate action—which may or may not include enforcement action—to be taken in response to an alleged violation, Environment Canada and Fisheries and Oceans Canada consider (i) the nature of the alleged violation; (ii) “the effectiveness of a proposed action in achieving EXECUTIVE SUMMARY 9 the desired result, with the alleged violator, of compliance in the shortest possible time with no further occurrence of violations;” and (iii) “how similar situations in Canada are being or have been handled.” At Britannia, consistent with Department of Justice policy and the Compliance and Enforcement Policy, Environment Canada and the province coordinated their compliance promotion and enforcement efforts. Regarding compliance promotion, federal Department of Justice policy allows prosecutors to consider whether a compliance program exists that might better achieve the purpose of a statute than would prosecution. A federal/provincial program for the remediation of orphaned/abandoned contaminated sites in Canada ended in 1995. Since then, Environment Canada, Fisheries and Oceans Canada and provincial officials have cooperated on an ad hoc basis to obtain funding to assess and find solutions for the effluent problem at the Britannia Mine.
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