THIS PAGE TO BE REPLACED BY COVER PAGE Embargo until 12:01am on Fri 16, 2021 IMAGE: Randall Request for an Inquiry into Regulatory Negligence: Canada’s Failure to Control Elk Valley Coal Mine Pollution An ELC Clinic Submission prepared for Wildsight Law Student: Jesse Langelier Coop Student: Russell Chiong Articled Student: Ellen Campbell Supervising Lawyer: Calvin Sandborn, QC JULY 2021 Acknowledgements We gratefully acknowledge the important contributions of law students Jesse Langelier, Justine Jarvis, Russell Chiong and articled student Ellen Campbell in developing this submission. We also appreciate Daniel Cheater for his participation in reviewing this submission. Lars Sander-Green of Wildsight has provided absolutely invaluable contributions to the submission, along with his Wildsight colleague, Randal Macnair. Copyright © 2021 The Environmental Law Centre Society. All rights reserved. Permission is hereby granted to reproduce and distribute these materials in whole or in part for educational and public interest purposes, provided such copies are disseminated at or below cost, provided that each copy bears this notice, and provided that the Environmental Law Centre is credited as the original published source. DISCLAIMER: This material is provided for general information as a public and educational resource. We attempt to ensure the accuracy of the material provided, however the Environmental Law Centre does not warrant the quality, accuracy or completeness of information in this document. Such information is provided "as is" without warranty or condition of any kind. The information provided in this document is not intended to be legal advice and should not be relied upon as such. Many factors unknown to us may affect the applicability of any statement that we make in this material to one’s particular individual circumstances. Please seek the advice of a competent lawyer in your province, territory or jurisdiction; or contact the ELC for more complete information. Cover Image: High elevation grassland habitat in the Elk Valley. The site of Teck Coal's proposed Castle coal mine. (Provided by Wildsight) Copyediting and layout: Holly Pattison, Environmental Law Centre Request for an Inquiry into Regulatory Negligence Page 2 of 45 Contents Acknowledgements .................................................................................................................. 2 1. Introduction ..................................................................................................................... 4 Background ...................................................................................................................................................................... 5 2. The Problem ................................................................................................................... 10 3. Westslope Cutthroat Trout are the Canary in the Mine .................................................... 11 4. Negative Impacts are Far Broader Than One Species, One River Reach, or Even One Country .................................................................................................................................. 17 Impacts on Fish Generally .............................................................................................................................................. 18 Impacts on Human Health and Indigenous Peoples ...................................................................................................... 21 5. Egregious Provincial Failures: Why Federal Agencies Should Have Acted .......................... 23 Political Override of Environmental Decisions ............................................................................................................... 27 6. The Central Problem: Federal Delay in Utilizing Fisheries Act Powers............................... 29 Delayed Prosecutions .................................................................................................................................................... 29 Lack of Serious Federal Engagement in Setting a Binational Selenium Standard at Lake Koocanusa ............................ 34 7. Delayed and Inadequate Water Treatment ...................................................................... 36 Water Treatment – A Flawed Excuse for Increased Coal Mining ................................................................................... 36 8. New Federal Regulations – Again, Far Too Little and Far Too Late .................................... 41 9. Conclusion...................................................................................................................... 43 Request for an Inquiry into Regulatory Negligence Page 3 of 45 1. Introduction On behalf of Wildsight, we request that you undertake a formal inquiry into the Government of Canada’s longstanding failure to properly regulate the devastating pollution flowing from British Columbia’s Elk Valley coal mines.1 We urge you to conduct this investigation specifically into the regulatory negligence of Environment and Climate Change Canada and Fisheries and Oceans Canada, and issue a formal report on your findings. Authority for such an examination and report is found in the following provisions of the Auditor General Act: • Section 7(2), which authorizes the Auditor General to report on whether government is operating efficiently; measuring and reporting in a satisfactory manner on effectiveness of programs; and expending money without due regard to the environmental effects of expenditures2; • Section 21.1, which states “…the purpose of the Commissioner is to provide sustainable development monitoring and reporting on the progress of designated entities [such as ECCC and Fisheries and Oceans Canada] towards sustainable development…”3; • Section 23(1), which states “The Commissioner shall make any examinations and inquiries that the Commissioner considers necessary in order to monitor…the extent to which designated entities have contributed to meeting the targets set out in the Federal Sustainable Development Strategy and have met the objectives, and implemented the plans, set out in their own sustainable development strategies…”4; and • Section 23(2), which authorizes the Commissioner to report to Parliament “anything that the Commissioner considers should be brought to the attention of Parliament in relation to environmental and other aspects of sustainable development.5 We submit that no issue of “sustainable development” could be more significant than government’s longstanding failure to use the Fisheries Act and other federal powers to address catastrophic coal mine pollution in the Elk Valley. This regulatory failure has directly contributed to one of the most serious and permanent environmental disasters in Canadian history. Therefore, it is essential that you review the errors made by federal regulators, so that such failures 1 See below for detailed documentation of the broad spectrum of profound environmental impacts caused by the pollution coming from the Elk Valley coal mines. For a brief discussion of the importance of this devastating pollution, see the Auditor General of BC report Carol Bellringer (Auditor General of British Columbia), Audit of Compliance and Enforcement in the Mining Sector, (May 2016) at 9, online (pdf): BC Auditor <https://www.bcauditor.com/sites/default/files/publications/reports/OAGBC%20Mining%20Report%20FINAL.pdf> [https://perma.cc/AVD2-UB9B]. This BC Auditor General report succinctly lays out the problem: “As selenium accumulates up the food chain, it can affect the development and survival of birds and fish, and may also pose health risks to humans.” 2 Auditor General Act, RSC 1985, c A-17, s 7(2). 3 Auditor General Act, RSC 1985, c A-17, s 21.1. 4 Auditor General Act, RSC 1985, c A-17, s 23. 5 Auditor General Act, RSC 1985, c A-17, s 23(2) Request for an Inquiry into Regulatory Negligence Page 4 of 45 are not made in the future. This inquiry is made ever more urgent by several new proposals to massively expand coal mining in the Elk Valley. Background Over recent decades, coal mining in the Elk Valley of BC has boomed. Today, Teck Resources Limited operates four major open-pit mines in the Valley and has recently closed a fifth mine.6 As a result, selenium and other pollution in the Elk Valley watershed has dramatically increased.7 Elk Valley mine discharge now stands as one of the world’s largest selenium contamination events – and one of North America’s most serious pollution problems.8 However, as the BC Auditor General pointedly noted in 2016, governments have failed to stop “the dramatic annual increases of selenium in the watershed’s tributaries.”9 To make matters worse, four new additional Elk Valley mine projects (to produce almost 500 million tonnes of coal) are being proposed – and have already begun the environmental assessment process.10 The governments of Montana, Idaho, and the United States have long complained about Canada’s remarkable failure to control the pollution now poisoning American waters and fish downstream from the Elk Valley coal mines. Those governments are now desperately attempting more definitive action to prompt Canada to address its international obligations – and to stop polluting its neighbour.11 Canada’s breach of its international environmental obligations recently attracted 6 Current Teck coal mines include Fording River, Greenhills, Line Creek, and Elkview, with Coal Mountain in care and maintenance. Teck, Teck Access Boundaries in the