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June 28, 2017 Sent Via Fax and Email Lisa Brygidyr Issues Project

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June 28, 2017 Sent Via Fax and Email Lisa Brygidyr Issues Project www.ecojustice.ca [email protected] 1.800.926.7744 June 28, 2017 Dr. Elaine MacDonald and Ian Miron 1910-777 Bay Street, PO Box 106 Sent via fax and email Toronto, ON M5G 2C8 T: 416-368-7533 [email protected] Lisa Brygidyr [email protected] Issues Project Coordinator File No: 386 Ministry of the Environment and Climate Change Operations Division Northern Regional Office Thunder Bay District Office 435 James Street South Floor 3, Suite 331B Thunder Bay, Ontario P7E 6S7 [email protected] Fax: 807-475-1754 Dear Ms. Brygidyr, Re: Instrument Proposal Notice, Order for preventative measures – EPA s. 18 (EBR Registry Number 013-0642) The following comments are made on behalf of Wabauskang First Nation in relation to the May 29, 2017 proposal for a Director to issue a preventative measures order to Domtar Inc. in respect of its site in Dryden, Ontario. As set out in further detail below, Wabauskang believes assessment and remediation work on and around the site must be undertaken quickly and is concerned that the proposed Order could result in further delay in this regard. Greater transparency and clear parameters for First Nations community oversight are needed. Finally, if the order is issued against Domtar, its requirements should be strengthened to ensure protection of the environment and human health now and in the future consistent with the purposes and requirements of the Environmental Protection Act. These strengthened requirements, as well as timely completion of the assessment, are also needed to ensure respect for and protection of the rights of Wabauskang community members under section 35 of the Constitution Act, 1982 and sections 7 and 15 of the Charter of Rights and Freedoms. 1. Wabauskang has a Direct Interest in the Subject of the Proposed Order Wabauskang is First Nation community of approximately 270 members, including 119 living on- reserve, located at Wabauskang 21. The people of Wabauskang are related to the people of Grassy Narrows First Nation. Wabauskang’s traditional territory includes areas of the Wabigoon River system that have been adversely affected for decades by mercury contamination from the Dryden mill site currently owned by Domtar Inc. In the early 1900s, the Wabauskang community was based near Wabauskang Lake. Following devastation caused by a flu epidemic after the First World War, in approximately 1917-1920, surviving band members moved to nearby locations, including near present day Quibell and Grassy Narrows. Those who moved to Quibell continued to live there until approximately 1963, using water from the Wabigoon River approximately 60 km downstream of the Dryden mill site for drinking, domestic use, and fishing. Several babies who were being bottle fed with milk made from the river water died, and several others, including babies who were being breastfed, were permanently damaged by the contamination, according to a community elder. Prior to 1963, the homes of Wabauskang community members living near Quibell were burned down and they were relocated to the community’s present reserve site by the Department of Indian and Northern Affairs. At the time, community members were not told about mercury contamination. Quibell is at a significantly closer location downstream of the Dryden mill than Grassy Narrows, so the contamination in the river was very likely more concentrated than at Grassy Narrows. At no time have community members been compensated for damages caused by their exposure to mercury contamination or their forced relocation, despite the serious impacts that contamination has had and continues to have on the health of community members and their ability to use and enjoy their traditional territory. When the community was located near Quibell, members experienced health problems consistent with mercury poisoning similar to those experienced by people living in Grassy Narrows at the time. Elders in the Wabauskang community continue to display signs of mercury poisoning and are concerned about the impacts on their families that they may have passed down. Impacted portions of the Wabigoon River were historically occupied and used by members of Wabauskang, who relied on the river for food and water. Community members continued to use and access the Wabigoon River downstream from the Dryden mill until the mid-1980s, when they found out about the contamination. The Wabigoon River and Quibell area still has important historical and cultural significance to the community. Community members’ ability to use the Wabigoon River and other resources in their traditional territory has been impaired by the ongoing contamination. 2. Remediation Must Be Conducted Immediately The February 2017 scientific report commissioned by Grassy Narrows concludes that there is strong evidence of an ongoing point source of mercury from the former chlor-alkali plant site at the Dryden mill into the Wabigoon River: High concentrations of mercury in the sediments at sites adjacent to and downstream of the former chlor-alkali plant, where there is shown to be recent sedimentation, is strong evidence of an ongoing point-source of mercury to the river from the former chlor-alkali 2 of 6 plant site. This warrants further investigation of the former chlor-alkali plant site and its surroundings. This report also identified exceedances of the Ministry’s Severe Effects Level for mercury in sediment adjacent to and downstream of the mill. Given the results of this and other recent studies, an urgent response is needed to find the sources of ongoing mercury contamination, prevent further contaminants from being released from the mill site and into the Wabigoon River, and remediate the mill site and river. Wabauskang is concerned that the proposed order could lead to further delay in cleaning up mercury contamination and preventing the release of new contamination into the English- Wabigoon River system. When a similar order was issued in 2011, the parties ordered to do work at that time challenged the order, ultimately succeeding in claiming the benefit of an environmental indemnity clause granted to previous owners of the site by the Ontario government. Domtar has stated publicly that it will appeal the current order. Although Wabauskang does not, at this time, take a position as to whether that indemnity applies here, they note that the Wabauskang First Nation was not a party to the settlement agreement under which that indemnity was granted and that its members have never been compensated for the severe harms they suffered as a result of mercury contamination from the mill. Regardless of whether and how quickly the company complies with the proposed Order, Wabauskang requests that the Ministry ensure all work mandated in the Order be conducted forthwith. It is important to note that this order requires further assessment but not remediation, and subsequent orders will be required to ensure the clean-up of any sources the assessment identifies. The initial work of identifying whether and where mercury is leaching into the river should not be delayed by litigation. The Ministry can seek compensation from Domtar for remedial work at a later date it if it desires, but questions about who should pay for remediation should not delay work that is necessary to protect the Ontario environment and human health. 3. The Terms of the Order Should be Strengthened If the Director issues the proposed order, Wabauskang submits that the following changes are needed to ensure adequate protection of the Ontario environment and human health. a) Workplan The scope of the work ordered under paragraph 2.2(a) of the proposed Order is unduly narrow. The contamination assessment is limited to a narrow strip of shoreline and excludes other parts of the shoreline as well as the mill site itself. As ordered, this work does not appear to be aimed at finding the source of mercury leaks. It will identify only if mercury is moving off-site into the river. Accordingly, further orders may be required to identify the potential source of any such leaks. 3 of 6 Given the information available to the Ministry at this time, and the urgent need to avoid the further delays that such an order may entail, Wabauskang First Nation suggests that the proposed Order be reworded so as to require identification of the source of mercury leaks from the site. The work ordered in the proposed order lacks clear timelines. This is a serious gap. The delay in remediating the mercury contamination from the Dryden mill has had catastrophic impacts on communities downstream. Any further delay in cleaning up the contamination would be unconscionable. Therefore, the work ordered should include aggressive timelines. Wabauskang First Nation proposes that the order include a deadline for the final report required under paragraph 2.8, rather than leaving this up to the orderee to decide. Finally, in order to ensure the assessment is done in a precautionary manner and is protective of human health, impacts of mercury contamination should be assessed according to Canadian Guidelines for the Protection of Aquatic Life as well as for Wildlife Consumers of Aquatic Biota. In assessing “safe” levels of mercury in fish, the draft order reflects the Health Canada guideline for fish consumption of 0.5 ppm for the general population and 0.2 ppm for subsistence fishers such as First Nation community members. The draft order also refers at paragraph 1.13 to the Table 9 “Soil, Groundwater and Sediment Standards for use under Part XV.1 of the Environmental Protection Act” to assess contaminated sites. These Ontario standards are not adequately protective against downstream impacts because they do not protect against impacts of methylmercury bioaccumulation in fish, including the direct impacts on the fish and the wildlife that consume the fish. Many members of Wabauskang and other local First Nation communities consume both the fish from the Wabigoon River and wildlife that consume that fish.
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