Canada's Hidden Toxic Mining Data Sought in Court

The lawsuit was filed in late 2007 by the nonprofit law firm Ecojustice on behalf of MiningWatch Canada and Great Lakes United, an international coalition representing environmentalists, conservationists, hunters and anglers, labor unions, community groups, and citizens of the United States, Canada, and First Nations and Tribes.

The Application for Judicial review alleges that the minister broke the law when he or ministry employees directed mining companies to not report pollution sent to tailings ponds and waste rock piles to the National Pollutant Release Inventory, NPRI, a publicly accessible inventory of pollutants released, disposed of and recycled by facilities in Canada.

"We are arguing that the minister has ignored his legal duties under the Canadian Environmental Protection Act to provide the public with the full extent of pollutants released by mining companies in Canada," said Justin Duncan, staff lawyer with Ecojustice.

Mine tailings near the abandoned Little Bay copper mine in north-central Newfoundland. Studies by Fisheries and Oceans Canada show that wild mussels from this site have some of the highest copper concentrations ever reported. (Photo courtesy DFO)

"The Canadian public - and especially residents living downstream from mining operations - have the right to scrutinize the environmental and health hazards these mining companies continue to create," he said.

In Canada, mine tailings are usually acidic, and if not properly contained they can leach sulphuric acid into surface waters and aquifers. They also can contain arsenic, mercury, copper, nickel, selenium and other toxic substances.

Until 2006 there was an exemption from reporting requirements under the Canadian Environmental Protection Act for mining facilities. The exemption provided that pollutant releases and transfers from extraction or primary crushing need not be reported.

In 2006, the minister removed the exemption from reporting pollutant releases and transfers from extraction or primary crushing previously enjoyed by mining facilities.

But, the plaintiff groups allege, after the minister removed the exemption for mining facilities, Environment Canada officials made numerous representations and communications to mining facilities advising that mining facilities would not be required to report releases or transfers of substances of concern to tailings areas and waste rock areas for 2006.

Ecojustice says analysis of NPRI data indicates that mining facilities have so far failed to report releases and transfers of substances of concern to tailings areas and waste rock areas for 2006 as they are legally required to do.

Gordon Peeling, president and chief executive of the Mining Association of Canada said in a statement, "MAC is firmly committed to multi-stakeholder processes, a strong Canadian practice, and is disappointed that it must take the unprecedented step of engaging in litigation because of its serious objection to these legal claims."

Throughout the 15-year history of the NPRI, said Peeling, the Mining Association of Canada has been at the center of many multistakeholder discussions on federal NPRI rules for the mining sector. "These discussions have resulted in the extension of the NPRI into all mining sector activities with the exception of mining related to pits and quarries in 2006," he said.

"Stakeholders have generally agreed on the need for some type of regular reporting mechanism relating to a core set of information concerning waste rock and tailings," Peeling said. "However, throughout these discussions, there has never been any consensus that the NPRI is the appropriate mechanism for including waste rock and tailings that are managed at a mining facility."

Runoff from the Yankee Girl tailings pile near Ymir, British Columbia (Photo courtesy NRC)

In making their case, MiningWatch Canada and Great Lakes United compare the reporting standards U.S. mining companies must meet with those required of Canadian companies.

For more than a decade, the U.S. government has required mining companies to report the amount of pollutants they release under the American equivalent of the NPRI, the U.S. Toxics Release Inventory.

Pollution in the form of mine tailings and waste rock - the data being withheld from the Canadian public - accounted for more than 97 percent of the total pollutants reported by the U.S. mining industry in 2005, says Ecojustice and the plaintiff groups.

In the United States that year, mining operations represented less than one-half a percent of all industries reporting to the TRI, but they accounted for 27 percent of all pollutants released - more than 530 million kilograms of toxic materials.

"Given the enormous amounts of carcinogens and heavy metals like lead and mercury reported in U.S. mine tailings, it is absurd that Canadian mines are being let off the hook and not reporting this massive form of toxic pollution," said MiningWatch Canada spokesman Jamie Kneen.

"Whether you live in Smithers, British Columbia, Voisey's Bay, Newfoundland and Labrador, or anywhere in between, Canadians have a right to know what poisons industry is releasing into our air, water, and soil," Kneen said.

"There are at least 80 facilities across the country not reporting their tailings and waste rock pollution to the NPRI. If the U.S. figures are any indication, this could be many millions of kilograms of toxic pollution," said John Jackson, director of clean production and toxics for Great Lakes United.

"But," he said, "so long as the Minister of the Environment continues to direct the mining industry to break the law and conceal these figures, we'll never know."

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