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A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINE

DISASTER, BRITISH COLUMBIA, CANADA

Hazeltine Creek, July 2015 © Amnesty International

May 2017

Original language: English

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A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

THE WORST MINING DISASTER IN BRITISH COLUMBIA’S

HISTORY

“We were woken up from a deep sleep in the middle of the

night. It sounded like a low-flying airplane or an

earthquake—I couldn’t fathom what it was. We took the

grandkids and ran for higher ground. We didn’t know what

was happening.”

-Resident of Likely, BC

The Mount Polley copper and gold mine is located in an interior rainforest in the province of British Columbia

(BC) in western Canada; full of cedar and alder trees, devils club and mountain huckleberries, and home to

grizzly bear, wolves, endangered Mountain Caribou, and various fish species. It is also home to Quesnel

Lake, one of the deepest fjord lakes in the world. Up to 25% of all salmon in British Columbia return to

spawn in Quesnel Lake and its tributaries. The annual salmon return is of economic, social, cultural and

nutritional significance to Indigenous peoples within the Secwepemc Nation

and surrounding Indigenous

territories.

Picturesque Likely, BC is a tiny rural community

located at the mouth of Quesnel Lake, 60 kilometres from

the city of Williams Lake on the interior plateau of BC’s Cariboo Region. The area is a popular destination for

outdoor enthusiasts and its economy relies on both ecotourism and mining. Many families in Likely and

surrounding communities rely on the Mount Polley mine for their income.

As morning dawned on August 4, 2014, residents of Likely awoke to the devastating news that the Mount

Polley mine’s four-square kilometre tailings pond had failed. It was the first catastrophic mine failure in the

province’s history.

The breach released over 24 million cubic meters of water and mine tailings into surrounding waterways,

depositing tailings silt up to ten metres thick at the bottom of pristine Quesnel Lake. Hazeltine Creek, only

four feet wide before the breach, became a 150 foot-wide canyon scoured down to bedrock. Some residents

raced out onto the lake in the morning hours to warn campers and backpackers of the danger and recall

watching the water seem to boil out of the mouth of Hazeltine Creek into Quesnel Lake.

Residents of nearby Indigenous communities said they were notified of the disaster by media reports or over

Facebook, but not by the company or the province.

Other residents were notified when volunteer firefighters

knocked on their doors to inform them of the disaster and warn them to stay indoors.

On August 5, provincial government officials issued the operator, the Mount Polley Mining Corporation

(MPMC), a pollution abatement order under the Environmental Management Act to stem the discharge,

carry out an impact assessment and begin remediation work. Federal government officials, through Fisheries

and Oceans Canada, issued a precautionary closure on a portion of the Chinook and Sockeye salmon

fisheries.

Fish eggs and juvenile salmon are vulnerable to some of the chemicals found in mine tailings,

BC is home to 201 First Nations where 32 languages and 59 different dialects are spoken. The Secwepemc people occupy a large area of the central interior

of British Columbia. There are currently 17 bands within the Secwepemc Nation. In the late 1800’s under colonialism, the Crown established land reserves

where the lives of Indigenous peoples were and continue to be administered through band administrations governed by the Indian Act. Secwepemc traditional

territory was vast, but colonization whittled it down to several small reserves scattered throughout what was once a large territory. Indigenous lands today

account for only 0.36% of British Columbia.

Likely has a population of about 350 people, http://likely-bc.ca/.

Cariboo Regional District, August 4, 2014: https://www.youtube.com/watch?v=xAItFxc8bME and CBC The National, August 5, 2014

https://www.youtube.com/watch?v=VYYwzAvQIF8.

CBC Radio Canada – the lessons of the worst mine spill of Canadian history. By Francis Plourde, April 2017.

Fisheries and Oceans Canada, 2014. Advisory FN0753 Recreational, August 5, 2014, accessed at. http://www-ops2.pac.dfo-mpo.gc.ca/fns-sap/index-

eng.cfm?pg=view_notice&DOC_ID=161980&ID=all. FOC later re-opened the chinook fishery on August 13 and the Sockeye fishery on August 19

A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

particularly copper which interferes with salmon olfactory systems which they need for migration to their

spawning grounds. At the time of the breach, Quesnel sockeye salmon were returning up the Fraser River

and young salmon born during the 2013 spawning cycle were rearing in the lake.

The breach deposited tailings waste containing nickel, arsenic, selenium, copper, aluminium and lead into

Quesnel Lake.

Homeowners along the lake reported a dramatic increase in turbidity (meaning that water

appeared cloudy because of the number of large particles suspended in the liquid) and the appearance of a

green plume. Turbidity is an indicator of water quality: the more turbidity, the greater the concern that large

particles can harbour micro-organisms and heavy metal toxins.

Trees along the breach site were coated in

tailings. MPMC’s post-breach environmental impact assessment reported that most of the trees in the “halo”

zone died as a result of suffocation from the deposited tailings sediment.

The region’s local authority, the Cariboo Regional District (CRD) declared a State of Local Emergency; and

drinking, bathing, fishing and swimming in the lake were immediately banned by the province’s Interior

Health Authority. Community showers were temporarily set up for residents and the Red Cross, local

businesses and MPMC provided them with drinking water.

BC’s Premier Christy Clark said she was committed to

returning Quesnel Lake, one of the “most pristine, cleanest

lakes in the world”, to its pre-breach state. She said those

responsible would be held accountable and that taxpayers

would not be on the hook for the clean-up costs.

By the end of August the provincial Ministry of Environment

(MOE) reported that water in Quesnel Lake met all drinking

water and aquatic life guidelines.

However, the extent of the

pollution and long-term health impacts of the disaster remain unclear, prompting University of Northern

British Columbia researchers to note that, “the nature of waste materials now present in Quesnel Lake

presents a potential hazard to the metal content of aquatic food webs and the growth, survival and behaviour

of important fish species”.

The CRD called on the provincial government to conduct a socio-economic impacts study in order to fully

assess the impacts of the spill on people and economies within the Cariboo. The Province and MPMC

agreed to conduct a study and to release it at the end of February 2017 but, to date, the report has not been

made publicly available.

Petticrew, E.L , et al (2015), The impact of a catastrophic mine tailings impoundment spill into one of North America’s largest fjord lakes: Quesnel Lake,

British Columbia, Canada, Geophys.Res.Lett., 42, 3347-3355, dol:10.1002/2015GL063345, pg 1.

There is no agreement about how to safely remove tailings from the lake, but residents are concerned about the toxicity of the tailings sediments and their

long-term impact on Quesnel Lake. Mine tailings are a concentration of toxic substances. According to company records filed with Canada’s MOE, in 2012 the

Mount Polley tailings pond contained, “326 tonnes of nickel, over 400 tonnes of arsenic, 177 tonnes of lead and 18,400 tonnes of copper and its compounds”.

Guidelines for Canadian Drinking Water Quality – Summary Table, February 2017, http://www.hc-sc.gc.ca/ewh-seMount/pubs/water-eau/sum_guide-

res_recom/index-eng.php.

The ‘halo’ zone refers to the area along the forest floor where tailings were deposited: “Later studies conducted as part of the risk assessment problem

formulation found that there were physical impacts to the terrestrial ecosystem where the tailings deposited on the existing forest floor (referred to as the

‘halo’) blocked air exchange and led to the loss of standing trees in the ‘halo’ area along Hazeltine Creek”. Post-Event Environmental Impact Assessment

Report, Golder and Associates, June 3, 2016, pg.4.

Post-Event Environmental Impact Assessment Report, Golder and Associates, June 3, 2016. P.4 and as reported in the media: Michael Mui, Vancouver 24

Hours, http://vancouver.24hrs.ca/2016/06/22/majority-of-trees-dead-near-Mount-polley-spill, June 22, 2016, Accessed April 6, 2017.

http://globalnews.ca/video/1498093/raw-christy-clark-speaks-about-mount-polley-mine-disaster Accessed March 2017.

MOE, 2014. Information Bulletin: Latest Mount Polley water-quality results.2014ENV0073-001248 August 25, 2014, available at

http://www.env.gov.bc.ca/epd/mount-polley/pdf/20140825/IB_Aug13-water-quality-results-Aug25.pdf. However, an MOE Bulletin noted that samples

collected from the Quesnel River showed ongoing problems with turbidity levels above the B.C. drinking water guidelines and total aluminum above Health

Canada drinking water guidelines, and exceedances for total suspended solids, total iron and total phosphorus.

Fisheries and Oceans Canada, 2014. Advisory FN0753 Recreational, August 5, 2014; FOC later re-opened the chinook fishery on August 13 and the Sockeye

fishery on August 19.

Petticrew, E.L., et al (2015), The impact of a catastrophic mine tailings impoundment spill into one of North America’s largest fjord lakes: Quesnel Lake ,

British Columbia, Canada, Geophys.Res.Lett., 42, 3347-3355, dol:10.1002/2015GL063345, pg 9

“People were confused, hurt and angry.

They were traumatized. People stopped

trusting the authorities.”

– Al Richmond, Chair, Cariboo Regional

District.

A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

1.1 OUR TRADITIONAL ECONOMIES SWIM IN THE

WATERS AND WALK ON THE LANDS

The rights of Indigenous peoples are recognized in treaties between Indigenous peoples and the state, in the

Canadian Constitution and its interpretation by Canadian courts, and in international human rights law.

Indigenous peoples have ongoing rights to harvest wild foods, hunt, fish and practice their customs

throughout their broader traditional territories. However, a half century of intensive resource development

throughout BC has meant that there are fewer and fewer places left where it is possible to exercise those

rights. In an April 7, 2017 public statement the MOE acknowledged that the Secwepemc people extensively

used the land and Quesnel Lake for traditional uses such as hunting, fishing, harvesting medicines and berry

picking.

According to Secwepemc elders, certain plants only grow within their territory around Quesnel Lake. They

report that the sites they used to visit to pick plants to treat specific health conditions now no longer exist.

They question whether any plants picked from the area are safe and according to Jacinda Mack, a Xat’sull

First Nation community member, this has had an enormous emotional impact on the community. Elders say

they now question whether they should pick mountain huckleberries from the area at all. She told Amnesty

International that the tailings waste deposited in the forests during the breach dry out, creating a heavy

metal-laden dust that settles on the plants. She says the dust residue is nearly undetectable, but people are

afraid to pick and eat berries from the area for fear of getting sick.

Salmon and human health could also be at risk. The Mount Polley disaster occurred at the start of the

annual salmon fishery, which is vital to Indigenous peoples throughout the Province. It immediately raised

fears about eating fish from the area. In the days following the disaster, Secwepemc elder Jean Williams

said, “The loss of the salmon for us as Secwepemc people is a matter of life or death for our culture. Can our

salmon survive this devastation?”

Chief Wayne Sparrow of the southern Musqueam First Nation called the

interior territories the “incubators” of the eggs that will eventually become salmon and feed downstream

Indigenous communities.

At the request of Indigenous leaders who identified the need to look beyond the technical and environmental

aspects of the disaster, the First Nations Health Authority commissioned a study to identify the probable

community level impacts of the disaster on determinants of health in 47 communities (including the non-

Indigenous community of Likely). It released its findings in August, 2016 and found:

 Emotional stress and trauma as a result of the spill was shared across the 22 communities which

participated in the study.

 Direct impacts to traditional territory, such as loss of access to sacred land, traditional foods and

medicines, in three First Nations – Xat’sull First Nation, Williams Lake and Lhatko Dene First Nation.

Impacts were immediate and ongoing.

 A decrease in individual fishing practice reported by almost all communities, resulting in changes to

diet composition, physical activity and cultural practices.

 Impacts to commercial fisheries in six communities, leading to reduced economic income and

employment opportunities for community members.

The report outlined the financial burden the disaster placed on families resulting from the loss of salmon. For

example, the average household in the Lillooet Nation consumes 200 fish per year. The direct financial costs

for an Indigenous family to catch their own fish are approximately $3-$4 per fish. A replacement salmon in

the grocery store can cost anywhere from $20 (for a pink) or $45 (for a sockeye). The severe economic

marginalisation of Indigenous peoples in British Columbia makes it virtually impossible to spend upwards of

$4000-$9000 annually on replacement fish from a grocery store

. The FNHA estimated the replacement

Public talk by Bev Sellers, President of First Nations Women Advocating Responsible Mining and former Chief of the Xat’sull First Nation, Comox Valley,

March 2017.

Indigenous knowledge and traditions are often associated with specific places. For example, a location where women have picked plant medicines and

berries for generations may be associated with particular stories and teachings that are integral to the culture. Loss of these specific places can erode

traditional knowledge and teachings.

Interview with Amnesty International, April 10, 2017.

Video, Doreen Manuel, Mount Polley Imperial Metals Disaster: https://player.vimeo.com/video/107550322.

Government takes heartless stand against efforts to help First Nations devastated by Mount Polley tailings pond catastrophe, Musqueam Indian Band

press release, August 9, 2014. http://northernshuswaptribalcouncil.com/?page_id=765.

Compared to other Canadians, Indigenous peoples experience poorer health outcomes due to the ongoing impacts of colonization, racism and social

exclusion, dispossession from traditional territories, loss of access to traditional food sources, poor infrastructure and limited access to adequate mental and

A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

cost of fish for families living on reserve in the five communities that make up the Lillooet Nation in St’at’imc

territory (downstream from Mount Polley) to be in the range of $1.7 to $3.8 million per year.

Some communities, such as the Stswecem’c Xgat’tem, are more than two hours away from the nearest

grocery store

and roads out of communities are often unpassable during harsh winter weather. Remote

communities rely on having freezers and cupboards stocked with frozen, dried and canned salmon for the

months until the next fishing season.

The halt to fishing in some of the communities had a negative impact on community practices related to

catching, processing and preserving fish. Fishing is a physical, cultural and social activity. The FNHA

scoping study concluded that, “salmon fishing plays a central role in a wide variety of determinants of First

Nations health, ranging from physical exercise to social cohesion, building and sharing cultural identity and a

wide range of factors affecting emotional health.”

At the time of the disaster, the Lhtako Dene – Red Bluff Indian Band closed down its main fishing camp and

recommended community members not fish. The report identified the community as one of the three most

affected by the disaster and recommended members be provided with support, access to meetings and

inclusion in high-level MOE and MPMC decision-making related to the disaster.

The study called on industry and government to support a full health impacts assessment of the Mount

Polley disaster and, at the request of the St’at’imc Nation, called for urgent steps to protect the Fraser River

system from further degradation.

Four lawsuits have been launched by Indigenous nations over the provincial government’s failure to protect

the salmon fisheries from harm resulting from the Mount Polley disaster.

ROLE OF SECWEPEMC COMMUNITIES IN DISASTER

RESPONSE

The Williams Lake (T’exelc) Indian Band and Xat’sull First Nation First Nation are broadly supportive of

mining and in 2013 signed revenue-sharing agreements with MPMC. These agreements were in place at the

time of the breach.

Some members worked at the mine at the time of the disaster and others participated

in clean-up operations. The disaster caused shock and deep distress in the communities.

Chiefs from both communities did not trust early water testing results which showed Quesnel Lake water fell

within Canadian drinking water guidelines. Xat’sull First Nation First Nation used its own funds to pay for

independent water testing.

Testing results from the First Nations Health Authority in late August showed

water samples were within BC and Health Canada Drinking Water Guidelines for known health effects but

exceeded allowable ‘non-health’ or ‘aesthetic’ limits for phosphorous, aluminum, iron and manganese.

The

monitoring and analysing of water quality data, remediation work, meetings with the Province and company,

support for community members, and worry over the long-term implications of the disaster caused

significant emotional, administrative and financial stresses for the two communities.

physical health services. Amnesty International has noted that resource extraction on traditional lands can exacerbate these factors. First Nations Health

Authority; Mount Polley Mine Health Impact Assessment Screening and Scoping Phase Report, January 2016, pg.26. and Amnesty International, Out of Sight,

Out of Mind: Gender, Indigenous Rights and Resource Development in Northeast British Columbia, Canada, 2016

Lillooet traditional territory of the St’at’imc people is approximately 200 kilometres south of the Mount Polley Mine. In 2016, the St’at’imc Chiefs Council

filed a civil lawsuit in BC Supreme Court over the Mount Polley spill. Notice of Civil Claim: St’at’imc Chiefs Council on behalf of the St’at’imc vs Mount Polley

Mining Corporation, Imperials Metals Corporation, Imperial Energy Inc, Bethlehem Resources Corporation and Her Majesty the Queen in Right in the Province

of British Columbia, August 2, 2016.

First Nations Health Authority; Mount Polley Mine Health Impact Assessment Screening and Scoping Phase Report, January 2016 pg.32.

First Nations Health Authority; Mount Polley Mine Health Impact Assessment Screening and Scoping Phase Report, January 2016 pg.66.

The St’at’imc, Williams Lake, Soda Creek, and Tsilhcot’in Indigenous nations have filed notices of civil claim against the Province and companies. At the

time of writing, several of the Nations were waiting for the results of a criminal investigation before taking next steps in the legal process.

The agreements mean the two Nations will share 35 percent of the incremental mineral tax revenue collected by the Province. Xat’sull/Soda Creek will

receive 16.5%and T’elexcemc/Williams Lake will receive 18.5%. The revenue they were promised from the mine is a percentage of the mining tax (tax based

on profit) and has returned very little. According to media reports, the Williams Lake Band received $4500 as their first compensation payment from the

mine.https://news.gov.bc.ca/stories/mine-revenue-sharing-agreements-benefit-first-nations-and-the-cariboo.

CBC News, 2014. Belle Puri, First Nations worry Mount Polley impact not as benign as claimed. Aug 11, 2014, http://www.cbc.ca/news/canada/british-

columbia/first-nations-worry-mount-polley-impact-not-as-benignas-claimed-1.2733429.

First Nations Health Authority Communique #6, August 29, 2014.

A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

On August 18 2014, the Province announced an agreement had been reached to address aspects of the

tailing pond breach. It provided $400,000 in funding to Xat’sull First Nation and Williams Lake Indian Band

to cover immediate costs caused by the spill and “to be incurred in responding to the Mount Polley Mine

incident”. The funds were used for clean-up and related administrative activities, but quickly ran out.

The agreement established a government-to-government Principals Table of Chiefs from Williams Lake

Indian Band and Xat’sull First Nation, and the Ministers of Environment, Aboriginal Relations and

Reconciliation, and Energy and Mines. The purpose of the Principals Table is to oversee a number of

activities related to the spill, including future permitting of the mine, assessing the adequacy of existing laws,

and identifying opportunities for First Nations to participate in response efforts. The Principals Table meets

four times per year.

Chiefs from the two northern Secwepemc communities regularly engage with the

province and MPMC regarding remediation and ongoing operations at the mine.

However, the relationship does not have the support of all members of the Secwepemc Nation. Some

members believe all mining activity in Secwepemc traditional territory is illegitimate, including the Mount

Polley mine. Some Secwepemc activists and their supporters attended the Imperial Metals AGM in 2015

and 2016 to demand the company leave the territory. Chief Judy Wilson of the Neskonlith Indian Band said

the Mount Polley disaster showed that parent company Imperial Metals was unable to manage water

concerns and announced her intention to serve an eviction notice on Imperial Metals regarding its proposed

Ruddock Creek zinc and lead mine.

She said, “Our elders have stated very clearly they do not want

anything poisoning our water or our salmon.”

The Mount Polley disaster exposed divergent views on mining and development held within the Secwepmec

Nation and exacerbated internal tensions regarding decision-making that could affect the rights of the Nation

as a whole. But there is agreement that Secwepemc rights were deeply impacted by the spill, and the

protection of the land and waters, and the cultural rights that flow from being Secwepemc, must be upheld

and protected.

TRANSBOUNDARY CONCERNS

The southeast border of Alaska, USA lies approximately 1000 km northwest from Mount Polley and a

number of major resource projects in BC. Alaskans have long raised concerns about leaking and abandoned

mines and the BC government’s perceived lack of urgency in preventing transboundary harms from

Canadian mining operations. Days after the Mount Polley disaster, on August 8 2014, Alaskan Senator Lisa

Murkowski wrote to then US Secretary of State, John Kerry, to voice her concerns about the “spectre of

environmental impacts from large-scale hardrock mineral developments in Canada that are located near

transboundary waterways” and asked the State Department to safeguard US interests in the wake of the

disaster.

Prominent environmental groups like Rivers Without Borders Alaska and Salmon Beyond Borders have

raised concerns about BC’s culture of weak compliance enforcement. They say that Alaskan residents,

fishermen, Alaskan Native Tribes and tourism operators have little faith in BC’s ability to hold companies

accountable for transboundary environmental and human rights harms, particularly when companies

operating in BC are not required to post full financial sureties in the form of cash or bonds as they are

required to do in Alaska. They do not believe BC’s mine permitting process will protect the transboundary

region from the long-term ecological and economic impacts of large-scale potentially acid-generating mines,

such as the recently approved Red Chris mine. For the last 60 years, the abandoned Tulsequah Chief mine

on the BC side of the border has been leaking acid runoff into the Taku River which flows into Alaska,

prompting Alaskans to demand BC do a better job of securing financial sureties for mine remediation.

Ministry of Aboriginal Relations and Reconciliation, Media Advisory: Letter of Understanding between Soda Creek Indian Band, Williams Lake Indian Band

and the Province of British Columbia, 18 August 2014.

Eviction Notice, August 14, 2014 http://miningwatch.ca/sites/default/files/eviction_notice_.pdf

Letter from Lisa Murkowski, US Senator for Alaska to Secretary of State, John Kerry; 8 August 2014. http://riverswithoutborders.org/wp-

content/uploads/2014/08/Murkowski-Letter-to-Sec-Kerry-Protect-AK-Fisheries-2014-08-08.pdf.

Red Chris is an Imperial Metals mine located in northwest BC. Newsletter, Rivers Without Borders; Dangerous Dams: Mount Polley mine report shows

inherent risks of watershed tailings impoundments; Transboundary Taku, Iskut-Stikine and Unuk Rivers at Risk of Worse Disaster, Spring 2015.

A BREACH OF HUMAN RIGHTS

THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

1.2 INVESTIGATIONS INTO THE CAUSES OF THE

FAILURE

“The company knew what they were supposed to do, but they

didn’t do it because they didn’t really think the breach would

happen. Would the mine have blown if it had been inspected

properly? The company would have done a better job with the

mine had they been watched.”

-Mine worker

To understand the technical causes of the tailings pond failure and to make recommendations to prevent

such failures in the future, the Province and the Xat’sull First Nation and Williams Lake First Nations

convened an Independent Expert Engineering Panel. MPMC paid the costs of the Panel Review. The Panel

was not mandated to investigate company oversight and management leading up to the disaster and noted

that it was “unable to ascertain the circumstances that contributed to key decisions.’’

On January 30, 2015

it released its findings.

The panel found:

 Poor design of the tailings pond was the primary cause of the disaster. The tailings dam was built on

relatively soft glacial silt which was unable to support the four kilometer square pond.

 The walls of the pond had been raised by MPMC several times without adequate buttressing and

perimeter beaches to stabilize the increased height of the dam wall. The engineering firm contracted

by MPMC, Knight Piésold, warned the company about increasing the dam wall height without

adequate buttressing and perimeter beaches, but says the company ignored its warnings and did not

renew its contract in 2011. It has been sued by MPMC and has filed a counter-suit.

 The construction of a downstream rock zone at a steep slope was a contributing factor and the Expert

Panel noted that had the downstream embankment slope been flattened in recent years as proposed

in the original design, failure would have been avoided.

Interview with Amnesty International, July 2015.

The report notes, “The Panel did not conduct its process according to formal legal procedures. To do so would have extended the length of this investigation

and would have entered into an assessment of roles and responsibilities, which is beyond the Panel’s authorization. As a result, the Panel is not able to offer

an adequate assessment of the role of management and oversight in its contribution to the cause of the failure. In particular, the Panel has not explored the

relationship between the designers and owner, contractual or otherwise. Accordingly, the Panel is unable to ascertain the circumstances that contributed to

key decisions.” Pg 111 .

Independent Expert Engineering Investigation and Review Panel Report on Mount Polley Tailings Storage Facility Breach; January 30, 2015

https://www.mountpolleyreviewpanel.ca/sites/default/files/report/ReportonMountPolleyTailingsStorageFacilityBreach.pdf.

Stockwatch Daily, Mike Caswell, Mount Polley Engineer Says its Warnings Went Unheeded: Imperial Metals lawsuit sees much finger-pointing; September

27, 2016.

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THE HUMAN RIGHTS IMPACTS OF THE MOUNT POLLEY MINING DISASTER, BRITISH COLUMBIA, CANADA

Amnesty International

 The Panel concluded that the failure could not have been predicted.

Parallel to investigating the causes of the tailings breach, the Panel was tasked with investigating current

tailings storage practices in BC to ensure that another failure like Mount Polley never happens again. It found

current practices severely lacking.

It recommended the Province reduce the number of existing dams from

120 to 60 in order to reduce the risks of dam failures. Alarmingly, it noted:

“If the inventory of active tailings dams in the province remains unchanged, and performance in the future

reflects that in the past, then on average there will be two failures every 10 years and six every 30. In the

face of these prospects, the Panel firmly rejects any notion that business as usual can continue.

”

The Panel recommended the province eliminate water storage dams and require companies to design dams

using Best Available Technologies to reduce the risks associated with ‘wet’ tailings impoundments (i.e. using

large bodies of water to cover and store mining waste). It also recommended that dam designs be overseen

by an independent panel.

“The Panel does not accept the concept of a tolerable failure rate for tailings dams. To do so, no matter how

small, would institutionalize failure. First Nations will not accept this, the public will not permit it, government

will not allow it, and the mining industry will not survive it.”

The government said it would act immediately to implement the recommendations and launch review of the

BC Health, Safety and Reclamation Code (HSRC) and Mines Act.

In July, 2016, MEM announced it had

implemented all of the Panel’s recommendations, including new design and operation criteria for tailings

storage facilities throughout the province.

However, critics note that the revisions to the Code don’t go far

enough: there is no clear strategy to retire approximately 60 existing dams or ensure that new mines use dry

disposal facilities, as recommended by the panel.

INVESTIGATION LAUNCHED BY CONSERVATION OFFICER

SERVICE

In February, 2015, Imperial Metals and MPMC offices in Vancouver and Williams Lake were raided by the

BC Conservation Officer Service as part of a joint investigation with Fisheries and Oceans Canada, the Royal

Canadian Mounted Police and Environment Canada into possible violations of the Environment Management

Act and the Fisheries Act.

According to an email received by Amnesty International from the provincial

MOE on March 31, 2017, the investigation is ongoing. Despite investigating for more than two years, no

charges have been laid nor have the investigations’ findings been made public. In fact, the Province is not

required to publicly release the findings.

However, panel member Norbert Morgenstern described the failure as an accident waiting to happen. “We have gone ahead and built on this weak layer [of

glacial silt], loading the gun,” Mr. Morgenstern said. “Building the steep slope pulled the trigger.” http://www.theglobeandmail.com/news/british-

columbia/design-failure-caused-mount-polley-tailings-breach-expert-panel-concludes/article22719967/ accessed 17 April 2017. This point was elaborated

on in the Review Panel Report, pg 116.

Independent Expert Engineering Investigation and Review Panel Report on Mount Polley Tailings Storage Facility Breach; January 30, 2015, Appendix 1: BC

Tailings Dam Failure Frequency and Portfolio Risk.

Independent Expert Engineering Investigation and Review Panel Report on Mount Polley Tailings Storage Facility Breach; January 30, 2015, pg 118.

The province has continued to approve applications for wet storage impoundments. Despite the panel’s recommendations, recent updates to the

Reclamation and Closure sections of the government’s Health, Safety and Reclamation Code for Mines in British Columbia do not require companies to build

alternatives to wet impoundments, but rather call on companies to ‘make efforts’ to reduce the use of water and to ‘consider’ alternatives.

http://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/mineral-exploration-mining/documents/health-and-safety/code-

review/health_safety_and_reclamation_code_2017.pdf. This runs contrary to the Expert Panel’s clear recommendations on the issue.

The Panel report

states, “Safety attributes should be evaluated separately from economic considerations and cost should not be the determining factor.” Independent Expert

Engineering Panel Investigation and Review Panel, Report on Mount Polley Tailings Storage Facility Breach (Province of British Columbia, 2015), p. 125.

The government launched a Code review chaired by the Chief Inspector of Mines and representatives of First Nations, mine labour unions and industry.

The public provided written submissions on implementing the independent panel’s recommendations to the Code Review Committee.

Province of British Columbia, Ministry of Energy and Mines, News Release, BC completes implementation of all independent panel recommendations, July

20, 2016 https://archive.news.gov.bc.ca/releases/news_releases_2013-2017/2016MEM0017-001317.pdf

For more, please see: University of Victoria, Environmental Law Centre; Fixing Systemic Failures in BC’s Mining Regulation: The Urgent Need for a Judicial

Inquiry; March 2017 pgs.17-19

Conservation officers are Special Provincial Constables under the Police Act with a wide suite of powers associated with that designation. Although part of

government, the Conservation Officer Service (COS) is unfettered in its investigations as it has the power to investigate and forward recommendations for

charges, when warranted, directly to provincial crown counsel. https://news.gov.bc.ca/stories/mount-polley-tailings-pond-situation-update-2Investigation

Report of the Chief Inspector of Mines, p. 22 See also: Conservation Officer Service Investigation Overview, September 19,

2014.http://www.env.gov.bc.ca/epd/mount-polley/pdf/20140919/RAPP-Handout-4Sept2014.pdf.

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In October 2016, the advocacy group MiningWatch Canada launched a public-interest private prosecution

against the provincial government and MPMC for the Mount Polley disaster, arguing that it was

‘unacceptable’ that two years after the accident the Crown had not released the results of the criminal

investigation or laid charges. The case alleges violations of the Federal Fisheries Act, which prohibits

“serious harm to fish” and the deposit of “deleterious substances” into fish-bearing waters that sustain

commercial, recreational, or aboriginal fisheries. MiningWatch claims that the spill was caused by the

negligence of both MPMC and the Province. The prosecution presented the Crown with evidence in support

of the claim that two articles of the Federal Fisheries Act were violated in the course of the disaster.

The Crown prosecutor argued it was not in the public’s interest to continue a private prosecution because

there was an ongoing comprehensive investigation being conducted by three different agencies (the B.C.

Conservation Officer Service, Environment Canada, and Fisheries and Oceans Canada).The Provincial Court

granted the stay of proceedings in March 2017. It is unclear if the Crown intends to lay its own charges

before the statute of limitations for doing so is reached in August 2017.

CHIEF INSPECTOR OF MINES INVESTIGATION

On December 17, 2015 the Chief Inspector of Mines released his report on the Mount Polley breach and his

findings confirmed the findings of the Expert Panel regarding the technical causes of the breach. He also

examined management practices by MPMC. He found the following, with respect to the company’s water

management activities:

 a lack of long-term planning for water management;

 no qualified individual on staff to take responsibility for water balance risks;

 no integration of water planning across the entire mine site; and

 an inadequate water management plan despite a growing awareness of the urgency of water

discharge planning.

The report found MPMC and its engineering consultants failed to recognize geotechnical and water

management risks and had not met generally accepted standards of practice for tailing pond embankments.

He did not, however, assign liability for management decisions or omissions which contributed to the

breach.

BC’s Energy and Mines (MEM) Minister Bill Bennett accepted the Chief Inspector’s 19 recommendations for

improvements and promised to introduce stronger regulations. But shortly after receiving the report, the

Minister announced MEM had no power to issue administrative fines under BC’s current mining law, and

there was insufficient evidence on the basis of criminal wrongdoing to prosecute Imperial Metals in court.

In February, 2015, Minister Bennett introduced Bill 8, the Mines Amendment Act which, on March 15,

2016, was enacted by the BC Legislature. The Amendment stipulates that fines and penalties can be

imposed within a period of three years of the act or omission being brought to the attention of the Chief

Inspector of Mines. Penalties of $1,000,000 can now be sought, up from the previous level of $100,000;

and the maximum jail term was raised from one to three years.

BC’S AUDITOR GENERAL: “A DECADE OF FAILED

EXPECTATIONS”

In May 2016, the Auditor General of BC, Carol Bellringer, raised a number of concerns in her audit of

compliance and enforcement of BC’s mining sector. Her investigation included the Mount Polley disaster

and examined not only on how the dam failed but why it failed and whether MEM met its overall compliance

and enforcement obligations.

The report, An Audit of Compliance and Enforcement in the Mining Sector,

concluded that:

Under the Fisheries Act, any citizen may initiate a private prosecution if the person has reasonable grounds to believe that a person has committed an

indictable offense. MiningWatch Canada lawsuit briefing, October, 2016. WOULD BE BETTER TO CITE THE ACTUAL ACT.

Decision and Reasons for Decision of the Chief Inspector of Mines on whether to submit a Report to Crown Counsel to assess if charges should be laid and

a prosecution commenced for contravention of the Mines Act., December 8, 2015.

http://mssi.nrs.gov.bc.ca/1_CIMMountPolley/T0229_TAR431_ANALYSIS_Decision%20DocumentCIM_20151208.pdf

Mount Polley Mine Tailings Storage Facility Breach Investigation, Report of the Chief Inspector of Mines, November 30, 2015

The Mines Act, R.S.B.C. 1996, c. 293.

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016), pg.8.

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“We found almost every one of our expectations for a robust compliance and enforcement program within

the MEM and the MOE were not met. We found major gaps in resources, planning and tools. As a result,

monitoring and inspections of mines were inadequate to ensure mine operators complied with

requirements.”

The Auditor General also found: “Overall, we concluded that compliance and enforcement activities of the

two ministries are inadequate to protect the province from significant environmental risks.”

She found that

the MOE and MEM were not routinely and adequately informing the public or legislators of the long-term

risks associated with mining, nor how well the agencies were providing oversight of the sector or reporting on

the overall performance of companies.

Specific to Mount Polley, Carol Bellringer found that “the Ministry (of Energy and Mines) did not ensure that

the tailings dam was being built or operated according to the approved design, nor did it ensure that the

mining company rectified design and operational deficiencies. MEM continued to allow the mine to operate

and to approve permit amendments to raise the tailings dam.”

The report noted that MEM had sole

responsibility for making sure MPMC completed and maintained the dam as designed and while it could

have compelled the company to comply, it failed to do so.

Photo by Kieran Oud, Hazeltine Creek

In order to address, “a decade of neglect in compliance and enforcement program activities within the

Ministry of Energy and Mines, and significant deficiencies within the MOE’s activities”, the Auditor General

made 17 recommendations for improvements to compliance and enforcement activities.

Crucially, she found that the Ministry of Energy and Mines is in a conflict of interest and at risk of ‘regulatory

capture’ (promoting industry interests over those of the public) because of its dual role as both regulator and

promoter of mining activities in the Province. Her priority recommendation was to move compliance and

enforcement duties out of MEM to an independent agency.

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016), pg.3

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016), pg.11.

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016), pg.8.

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016), pg.78.

Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016) pg. 11.

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In a lengthy response

MEM agreed to adopt all but one of the Auditor General’s recommendations. The

Minister rejected the finding that MEM is unable to separate compliance and enforcement duties from

promotion. Instead, the Minister set up a Compliance and Enforcement Board within the Ministry to “address

the need for greater integration between the Ministries as well as with the Environmental Assessment

Office.”

In rejecting this recommendation, the government essentially failed to implement the Auditor

General’s primary recommendation.

REGULATORY AND OTHER FAILURES OF THE BC

GOVERNMENT

Among First Nations and non-Indigenous people interviewed by Amnesty International in surrounding

communities, few people want to see the mine shut down. Rather, many believe it is simply too risky for the

Province to allow the mine to discharge waste water that is not fully treated into Quesnel Lake. They are

calling for the Province to put a number of strict conditions in place. Those safeguards are detailed in this

section.

APPROPRIATE AND ROBUST EFFLUENT TREATMENT

During public consultations prior to the approval of initial operations, local residents were told that no effluent

would ever be discharged to Quesnel Lake. Mount Polley was initially licensed as a zero-discharge mine.

However, subsequent permit applications before the disaster for relatively small volume water discharges

into Polley Lake or Hazeltine Creek were approved by the Province. These discharges were treated on site

using reverse osmosis, considered a robust best available technology. However, in April 2017, despite

significant objections from community members, MOE approved large volume effluent discharge directly into

Quesnel Lake and allowed MPMC to use a comparatively less expensive and less robust water treatment

technology.

MPMC is permitted to discharge the equivalent of approximately 21 Olympic-sized swimming pools of

treated waste water into Quesnel Lake every day for over 5 years. However, MPMC’s water treatment process

will not meet BC Water Quality Guidelines (WQGs) because the treatment process MPMC will now use is not

capable of treating water to BC WQG standards. Rather, to meet the WQGs, the treatment process requires

additional fresh water dilution once waste water enters Quesnel Lake, making Quesnel Lake in effect part of

MPMC’s water treatment process. MPMC’s discharge permit requires it to make “continual improvements”

to its treatment processes until the end of the mine’s operating permit in 2022.

Despite requests by local residents to fully study other options, according to the MOE in its ‘reasons for

decision’ notice, alternatives to discharge via pipeline into Quesnel Lake were not fully investigated in

MPMC’s application because, in the company’s view, the dilution capacity of Quesnel Lake is sufficient for

dealing with the effluent.

Local water defenders presented evidence to suggest that the water quality of Quesnel Lake is higher than

that of BC’s WQGs and argue that it should in fact be Quesnel Lake’s pre-breach water quality which forms

the basis of allowable effluent limits, not BC’s WQGs.

Critics, including Indigenous leaders, say the

province should have explored other treatment and discharge options and, if none were reasonable, only

permitted fully treated water that met BC’s WQGs for discharge into Quesnel Lake.

“Response from Government” to Auditor General of BC, 2016. An Audit of Compliance and Enforcement of the Mining Sector,

https://news.gov.bc.ca/files/Government_responds_to_OAG_report_An_Audit_of_Compliance_and_Enforcement_of_the_Mining_Sector.pdf?WT.cg_n=Hoot

suite, pg. 5.

“Response from Government” to Auditor General of BC, 2016. An Audit of Compliance and Enforcement of the Mining Sector. In July, 2016, the MEM issued

its Terms of Reference for the C&E Committee. http://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/mineral-exploration-

mining/documents/compliance-and-enforcement/board_tor.pdf accessed April 8, 2017.

Reasons for Decision Memo File 11678, MOE, April 7, 2017.

Technical Memorandum, Existing and Proposed Effluent Discharge Permit Limits for the Mount Polley Mine Environmental Management Act Permit 11678;

Golder and Associates, November 15, 2017. The Memorandum, requested by the public during MPMCs application for its long-term water management

permit, provides current and proposed EMA effluent discharge limits for Quesnel Lake. Likely Chamber of Council member, Doug Watt, provided Amnesty

International with an amended data table he shared with MPMC which includes water quality data available for Quesnel Lake. The table compares allowable

levels of metals and compounds under BC’s WQGs with Quesnel Lake pre-breach water quality data and predicted site water concentrations of untreated

mining effluent.

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In Amnesty International’s view, it is unusual that the province would approve mine effluent discharge that

does not, at a minimum, meet BC’s WQG when outstanding studies such as the Socio-Economic study, the

Human Health Risk Assessment study and the Ecological Risk Assessment study,

are still pending.

TRANSPARENT AND INDEPENDENT TESTING

Currently, the province relies primarily on MPMC to carry out most of the water sampling, site investigations

and reporting. In March, 2017, MPMC published its first community update newsletter which included site

monitoring information for Mitchell Bay on Quesnel Lake.

However, many residents say they do not trust

the testing results and this has caused significant anxiety about drinking the water and eating fish from the

region.

The MOE told Amnesty International in an email that it is carrying out ‘compliance verification sampling’ and

working with institutions such as the University of Northern British Columbia (UNBC). UNBC confirmed that

the MOE paid for some metal sampling tests and researchers shared the results with them. However, groups

like the Concerned Citizens of Quesnel Lake (CCQL), which search for, analyze and share the company’s

water sampling results on its blog, say that testing results are infrequently updated and have historically been

difficult to find. They are concerned that MPMC’s new reporting requirements allow the company to post

three months-worth of sampling results within 45 days of the end of the sampling period, leading CCQL to

fear that the public will only become aware of water quality problems months after they are detected.

ACCESS TO MEANINGFUL INFORMATION

At least four different websites provide information and updates about Mount Polley: MOE

, the province’s

Mineral Exploration and Mining site

, MEM’s BC Mine Information site

, and Imperial Metals.

People

seeking information say they must regularly search all sites for pertinent news and updates. They also say

that it is difficult to find new information without knowing in advance the keywords or titles of reports, and

that reporting formats are often technical and difficult to interpret. They say that over the last two years,

documents which were once available have disappeared or have been archived in ways members of the

public find difficult to access or need particular software to open. Internet service is slow in some

communities around Quesnel Lake and some homes lack computers or internet service. Residents are

calling on the province to create a single, user-friendly site with regularly updated information, including

testing results and compliance enforcement-related documents.

FULLY-FUNDED FINANCIAL SURETIES FOR REMEDIATION AND POST-CLOSURE

Under the BC Mines Act, financial securities in British Columbia are established on a case-by-case basis by

the Chief Inspector of Mines. The Chief Inspector estimates reclamation costs for cleaning up the mine site

after decommissioning, but negotiates the actual amount with the mining company. The province relies on

policy rather than law and the Chief Inspector’s discretion to decide whether or not a security is required,

when it is due, and the amount of financial security required.

Other jurisdictions, such as Alaska and

The Pollution Abatement Order Amendment lays out the requirements MPMC is required to fulfil or face fines and possible imprisonment. The Amendment

requires the provision of these reports and their due dates. The order notes that failure to comply with the Environmental Management Act could result in

legal action. To date, none of these reports have been made public. Environmental Protection Division, MOE, File # 107461, Pollution Abatement Order

Amendment, November 30, 2016. http://www2.gov.bc.ca/assets/gov/environment/air-land-water/spills-and-environmental-emergencies/docs/mt-polley/p-o-

r/2016-11-30_pao_amended.pdf

Community Update Newsletter, MPMC, Volume 1, Issue 1. March 2017 https://www.imperialmetals.com/assets/docs/mt-polley/2017-03-update.pdf.

BC Ministry of Environment, Mount Polley Tailings Dam Breach: Key Information; http://www2.gov.bc.ca/gov/content/environment/air-land-water/spills-

environmental-emergencies/spill-incidents/past-spill-incidents/mt-polley/mount-polley-key-information.

BC Mineral Exploration and Mining; Mining Compliance & Enforcement; http://www2.gov.bc.ca/gov/content/industry/mineral-exploration-

mining/compliance-enforcement

. British Columbia Mines Information; http://mines.nrs.gov.bc.ca/ and http://mines.nrs.gov.bc.ca/p/mount-polley/overview

Imperial Metals, Our Operations, Mount Polley Mine; https://www.imperialmetals.com/our-operations/mount-polley-mine/overview

Fair Mining Collaborative, http://www.fairmining.ca/guide/securing-the-cost-of-mine-clean-up/; accessed 5 April 2017.

Governments increasingly rely on companies to regulate themselves and the implications of this on the

right to a remedy for harms suffered are serious. When a State allows a company to monitor key

environmental parameters this removes independent oversight and is potentially open to abuse. People are

deprived of impartial information and may be unaware of the harmful consequences of corporate

operations because information is not disclosed or is manipulated. In some cases people may be well

aware of the harms they are suffering but there is no official data to support their efforts to seek a legal

remedy, or the official data is compiled by the company and undermines their claim.

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Quebec, require companies to post full surety bonds for 100% of anticipated clean-up costs.

The Auditor

General noted these concerns in her report.

Under-funded liabilities for authorized environmental harms

are a significant concern in British Columbia.

BC has adopted the Polluter-Pays Principle

which is generally accepted as good public policy because it

puts the burden on the company to pay for remediation, rather than on regulators, residents and First

Nations who typically bear the administrative, financial, and emotional burden of environmental harms. The

Polluter Pays system also requires companies to put in place best available technologies and practices when

designing, operating and remediating their mines. A good mine permitting process builds in mechanisms to

ensure the Principle will be enforced. However, in British Columbia the Principle is undermined by the

province’s lack of financial assurances for unauthorized environmental harms. Critics say without fully

funded financial sureties and mechanisms to enforce the Polluter Pays Principle, there is little incentive for

companies to adopt best practices and, in Amnesty International’s view, this puts human rights at risk.

At the time of the disaster, details about MPMC’s financial sureties were not publicly available. However,

based on a MEM document, by 2013 MPMC had only posted a portion of its estimated financial surety,

$7.05 million out of an estimated $38 million in normal reclamation costs. The costs of remediating the

tailings pond breach were not included in MPMC’s expected remediation costs. MPMC’s cost of emergency

remediation was expected to be $67 million. Fortunately for British Columbians, the company was able to

pay for these costs. BC taxpayers, however, paid for $23 million of that total because the company was able

to write off clean-up costs against its 2014 taxes.

CURBING POLITICAL DONATIONS TO PREVENT REGULATORY CAPTURE

Donations totalling over $400,000 by Imperial Metals and its major shareholders to the incumbent BC

Liberal Party, as well as a $1million private fundraiser for the BC Liberal Party organized by Imperial Metals’

controlling shareholder, N. Murray Edwards, in 2013 as part of the party’s successful re-election bid, have

sparked concern that these donations may have unduly influenced the Province’s decision to not seek

charges against the company over the Mount Polley disaster. At a minimum it has certainly left that

impression in the community and more widely with the public in BC, significantly eroding trust and

confidence in oversight and enforcement of mining and environmental laws. In March 2017, the RCMP

announced an investigation into political contributions in BC after journalists alleged that lobbyists made

indirect, illegal donations to the two main political parties. The Premier was criticized for accepting a

$50,000 yearly stipend, raised through political donations, on top of her salary.

Robyn Allan, Toward Financial Responsibility in British Columbia’s Mining Sector, (Union of BC Indian Chiefs, 2016), pgs.35, 47, 86, 87.

The Auditor General noted that “MEM is not holding an adequate amount of security to cover the estimated environmental liabilities at major mines. The

Ministry has estimated the total liability for all mines at more than $2.1 billion, yet has obtained financial securities for less than half that amount ($0.9

billion). Auditor General of British Columbia, An Audit of Compliance and Enforcement of the Mining Sector (May 2016),pg.6.

Robyn Allan, Toward Financial Responsibility in British Columbia’s Mining Sector, (Union of BC Indian Chiefs, 2016); Authorized environmental harms

include expected harms to the environment in the course of metals mining, such as disturbances to soil, water contamination, loss of biodiversity, etc. Their

costs are built into companies’ reclamation funds and strategies. Unauthorized environmental harms as a result of mining activities, such as catastrophic

tailings dam breaches, are currently not built into remediation liability calculations.

Under the Polluter Pays Principle, the party responsible for the damage is responsible for cleaning up the environment.

Robyn Allan, Toward Financial Responsibility in British Columbia’s Mining Sector, (Union of BC Indian Chiefs, 2016), pg 5

Fixing Systemic Failures in BC’s Mining Regulation: the Urgent Need for a Judicial Inquiry (March 2017), pg.47 and Robyn Allan, Toward Financial

Responsibility in British Columbia’s Mining Sector, (Union of BC Indian Chiefs, 2016), pg 49.

Globe and Mail; Dhillon, Sunny; Special Prosecutor Joins Fundraising Probe in BC, March 30, 2017.

The effect of corporate influence over governments can be difficult to determine. Channels of corporate

influence can be indirect, but phenomena such as regulatory capture are well known in the mining sector.

Essentially, the relationship between the regulator and the regulated entity becomes overly close to the

point where there is little meaningful oversight. In such a context, companies may gain leverage over

government policy. Although it is often difficult to prove the existence of these privileged channels of

influence, they can become patently obvious in the way in which governments behave toward certain

companies or to a whole industry. Corporate influence on domestic policy processes can be legitimate.

However, that advocacy can too often become an undue influence on the state and may lay the ground for

human rights abuses. Donations to political parties are certainly not illegal. But large donations to political

parties can sometimes result in decisions and policies that favour corporate interests at the expense of the

public good. Regulatory effectiveness can also be undermined by conflicts of interest that arise when a

public official or agency is unable to discharge their responsibility impartially because they are facing

competing interests. This is often the case when a government department is responsible for the promotion

of a given industry as well as enforcing regulatory standards for that industry.

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1.3 CARTE BLANCHE TO RESUME OPERATIONS

“Two years later, it is still unknown what the long-term

effects will be, and numerous local families and businesses

have suffered great losses and hardship. Many of us doubt

we can be made whole again, by the mine or the province”

-Jacinda Mack and Richard Holmes, area residents

Since the disaster, MPMC has applied for a number of permits and amendments in order to clean up the

damage caused by the disaster and seek a return to full operations. Public consultations have been part of

these permit applications.

In a letter to Amnesty International

the MOE states that it, “has been engaged with local First Nations and

local residents in a meaningful, consent-seeking process regarding all aspects of decision making around

permitting and ongoing remediation for the Mount Polley Mine. This work has included a Government-to-

Government Technical Working Group with local First Nations, a Public Liaison Committee with the local

community, a transparent Mine Development and Review Committee process, sharing of monitoring

information with the public on the Ministry web site, and numerous public meetings.”

Without exception, BC regulators have approved each permit application sought by MPMC (some with

amendments), including:

 June 2015: partial re-opening of the mine;

 December 2015: short-term permit to discharge treated mine effluent down Hazeltine Creek into

Quesnel Lake;

 June 2016: return to full operations using a repaired and reinforced tailings dam; and

 April 2017: long-term water management and water discharge plan.

In the face of these approvals, activists point out that these permits were granted over the objections of

affected Indigenous and non-Indigenous communities.

For example:

 Indigenous leaders from Xat’sull First Nation and Williams Lake Indian Band report that the Province

has ignored their concerns about water pollution. In 2015, the Williams Lake Indian Band and

Xat’sull First Nation Chiefs argued that the partial re-opening of the mine was premature. “I strongly

feel they are not listening. We had a team of experts working on our behalf. They continually put forth

our concerns and I don’t see any long-term plans (to address those concerns),” Williams Lake Chief

Ann Louie told the media. Xat’sull First Nation Chief Donna Dixon said there were still too many

unanswered questions to issue a restart permit and that First Nations were ‘shocked’ the government

would make this decision while investigations (by the Conservation Officer Service and the Chief

Inspector of Mines) were ongoing.

Chiefs Louie and Dixon regularly voiced their concerns about the

Victoria Times Colonist, Comment: Communities Still Reeling from Mount Polley Disaster, 7 August 2016 by Jacinda Mack and Richard Holmes

http://www.timescolonist.com/opinion/op-ed/comment-communities-still-reeling-from-mount-polley-disaster-1.2317590.

Email received on March 31, 2017 from Deputy Minister of Environment Wes Shoemaker, Reference 308915.

Letter from Diane Howe, MASc, P.Geo, Deputy Chief Inspector of Mines, Reasons for Decision regarding permit no. M-200, Mine No. 1101163. July 9, 2015.

Prior to the breach the BC Ministry of the Environment warned Mount Polley that it had exceeded the permitted level of waste water in the tailings pond.

The public wrote letters opposing the application out of concern that effluent discharges would add to the toxicity burden of Quesnel Lake. However, despite

being initially permitted as a zero-discharge mine, in December, 2015 MPMC received a short-term permit to discharge treated mine effluent into Quesnel

Lake.http://www.cbc.ca/news/canada/british-columbia/Mount-polley-williams-lake-1.3335897, accessed 6 April 2017.

Long Term Water Management Plan Approved for Mount Polley, April 7, 2017 https://news.gov.bc.ca/releases/2017ENV0038-001156.

First Nations Women Advocating Responsible Mining noted a number of concerns with the public comment period: “The only method for receiving

comments from the public was to submit an e-mail to you with the subject line “comments on technical assessment report” by December 23, 2016. This

limits comments to technical issues only, ignoring the myriad of other concerns not addressed in their current application. Also, this process limits comments

to people with access to a computer, Internet, and the technical knowledge of how to use them to submit comments. Your method for receiving public

comments excludes many First Nation and public citizen comments in this region and beyond”. Comments on Technical Assessment Report, December 22,

2016.

Hoestra, G. 2015. Mount Polley restart ignores water concerns: First Nations. Vancouver Sun July 13, 2015

http://www.vancouversun.com/news/Mount+Polley+restart+ignores+water+concerns+First+Nations/11208937/story.html.

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long-term water treatment and discharge plan, but did support a temporary water discharge permit in

July 2016 when water build-up at the mine site became a serious concern, requiring discharge.

 In December 2015, neighbouring Tsilhqot’in National Government Chiefs issued a press release

about the downstream effects of the breach on, “our people, our food, our social and ceremonial

rights to fish.” Chiefs Joe Alphonse and Roger William expressed concern that Quesnel Lake would

be contaminated as part of the dilution zone. The Tsilhqot’in National Government maintained that

any discharge should be treated to a level that meets water quality guidelines prior to the discharge

entering the environment, and raised concerns that current treatment does not meet those

guidelines. A spokesperson from the MOE responded to the media that the water in the dilution zone

would meet BC Water Quality Guidelines.

Ultimately, however, the MOE approved water discharges

that do not meet BC’s WQG’s. In August 2016, the Tsilhqot’in filed a civil claim against Imperial

Metals, MPMC, engineering firms Knight-Piesold and AMEC and the Province of BC for negligence

and failure to protect the public and the Tsilhqot’in people.

 In November 2016, members of the NGO First Nations Women Advocating Responsible Mining

(FNWARM) went door-to-door in the Secwepemc communities of Xat’sull First Nation, Williams Lake,

Canim Lake and Canoe Creek to gather support for a petition to the Province calling for the discharge

of only fully treated mine waste water into Quesnel Lake. The petition read:

I do not support Mount Polley Mine in its application to discharge mine wastewater to Quesnel Lake

and Bootjack Lake as proposed in their current Long Term Water Management Plan. This plan

depends on partial water treatment onsite, and extensive dilution by clean water sources to meet

BC Water Quality Guidelines. I support FULL WATER TREATMENT for all mine water leaving the

Mount Polley Mine.

Over two hundred people signed the petition, including one adult from every home but two in Xat’sull

First Nation.

The province acknowledged in its Reasons for Decision statement that MPMC’s water discharge permit

was granted even though Xat’sull First Nation and Williams Lake negotiators asked that effluent

discharge meet BC’s WQGs.

 Researchers noted in the First Nations Health Impacts Report that despite experiencing serious

impacts from the Mount Polley disaster, the Lhtako Dene -Red Bluff Indian Band has been left out of

high-level discussions with the province and company about the impacts on their rights or the

remedies they are seeking for harms they experienced.

Press release, Tsilhqot’in National Government, 7 December 2015

http://www.tsilhqotin.ca/PDFs/Press%20Releases/2015_12_07_mnt%20polley%20discharge.pdf.

Williams Lake Tribune, December 8, 2015, http://www.wltribune.com/news/361087001.html.

Tsilhqot’in National Government press release, August 8 2016 http://www.tsilhqotin.ca/PDFs/Press%20Releases/2016_08_08_PolleyNOCC.pdf

Ministry of Environment, Environmental Protection, Mining Operations; FILE 11678 Permit Amendment, April 7, 2017 Reasons for Decision, pg. 6.

Canadian and international law requires a rigorous standard of protection for the human rights of

Indigenous peoples. This high standard of protection responds to the long history of colonialism, forced

assimilation and racism that has marginalized and impoverished Indigenous families and communities and

left them especially vulnerable to further abuses.

Consultation is part of this framework for protection but consultation has to be meaningful. No amount of

consultation is adequate if, at the end of the day, the concerns of Indigenous peoples are not seriously

considered and their human rights remain unacknowledged or unprotected. Furthermore, consultation is

only meaningful if there is genuine willingness to abandon a proposal or explore alternatives to ensure that

human rights are protected and fulfilled.

The 2007 United Nations Declaration on the Rights of Indigenous Peoples sets out minimum global

standards for the “survival, dignity and well-being of Indigenous peoples.” The UN Declaration generally

calls on states to do much more than consult with Indigenous peoples. Where the UN Declaration refers to

consultation, it also calls on the state to “collaborate” with Indigenous peoples. Where there is a risk of

serious harm, the UN Declaration and other international human rights standards generally require that

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Non-Indigenous residents living along Quesnel Lake have also raised concerns about lack of access to clean

water. On the second anniversary of the disaster, local biologist and Likely area resident Rick Holmes and

Xat’sull First Nation member, Jacinda Mack, voiced these concerns in an op-ed published in the Victoria

Times Colonist:

It has left local residents fuming. Have we really come to the point where wanting clean water

makes us dissidents?

Residents were extremely concerned about the July 2016 temporary approval of discharge of untreated

water into the lake. “We do not want this discharge into Quesnel Lake. It’s horrible. It’s terrible,” resident Kim

Goforth told the media. Christine McLean, another homeowner in Mitchell Bay on the lake said, “We just

want the lake to be clean again.”

In a secret ballot, Likely’s Chamber of Commerce membership voted against the company’s 2016 long-term

water management plan which included a proposal to discharge waste water into Quesnel Lake. Chamber

Director, Doug Watt told the Canadian Broadcasting Corporation’s (CBC) Daybreak Kamloops radio show that

Chamber of Commerce members opposed discharges because the effects on the lake from the initial breach

have not yet been identified and, as University of Northern BC researchers reported, it will likely take

decades to know the full extent of the damages.

In October 2016, MPMC applied for an amendment to its permit under the Environmental Management Act.

The CCQL launched a public information campaign, calling on residents to make their thoughts known to the

province and demand it keep ‘toxic mine waste’ out of Quesnel Lake.

On February 28, 2017, MPMC

published a Public Consultation Report which included submissions made by the public to the MOE and

MPMC. The majority of comments sent to the MOE opposed discharges of mine water into Quesnel Lake.

When the permit was granted, the CCQL released a statement expressing their anger over the decision and

making a number of recommendations for restoring public confidence.

Victoria Times Colonist, Comment: Communities Still Reeling from Mount Polley Disaster, 7 August 2016 by Jacinda Mack and Richard Holmes

http://www.timescolonist.com/opinion/op-ed/comment-communities-still-reeling-from-mount-polley-disaster-1.2317590

Hume, M 2016. Mount Polley Mine resumes effluent discharge into Quesnel Lake. The Globe and Mail, April 27, 2016

Daybreak Kamloops, interview with Likely Chamber member Doug Watt, November 16, http://www.cbc.ca/news/canada/kamloops/likely-chamber-against-

Mount-polley-waste-water-plan-1.3853285

Billboards erected at the entrance to Williams Lake read: Save Quesnel Lake. Help Protect Quesnel Lake and surrounding watershed from further discharge

of toxic mine waste water. https://www.ccql.ca/

Press Release, Concerned Citizens of Quesnel Lake, April 2017. https://www.ccql.ca/single-post/2017/04/18/CCQL-Press-Release

projects such as dams, mines, and other resource development go ahead only if the affected peoples grant

their free, prior and informed consent (FPIC).

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1.4 CANADA’S INTERNATIONAL HUMAN RIGHTS

OBLIGATIONS MUST BE ENFORCED IN BRITISH

COLUMBIA

Under international human rights law and the UN Guiding Principles on Business and Human Rights,

Canada has a duty to protect human rights from abuse by non-state actors, including companies. This duty

includes taking appropriate measures to prevent human rights abuses by private actors and to respond to

these abuses when they occur by investigating the facts, holding the perpetrators to account, and ensuring

effective remedy to those affected. Canada is further obligated to ensure the rights of Indigenous peoples are

fulfilled in all government policies and decisions.

All victims of human rights violations have a right to an effective remedy when things go wrong. This right is

at the very core of international human rights law. It also stems from a general principle of international law

that every breach gives rise to an obligation to provide a remedy. Around the world, victims of corporate

human rights abuses strive, sometimes for decades, to get justice for the harms they suffered.

In correspondence with the BC government, Amnesty International underscored the relevance of the UN

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian Law. The obligation to

protect includes the duty to ‘[i]nvestigate violations effectively, promptly, thoroughly and impartially and,

where appropriate, take action against those allegedly responsible in accordance with domestic and

international law”.

The actual reparation that should be provided will depend on the nature of the right violated, the harm

suffered and the wishes of those affected. The essence of reparation, however, is that it must seek to

remove the consequences of the violation and, as far as possible, restore those who have been affected to

the situation they would have been in had the violation not occurred. The UN Declaration calls for means of

redress to be determined in collaboration with Indigenous peoples (art. 11.2) and elaborates a specific

objective of maintaining Indigenous peoples’ relationships to the land (art. 28).

Moves by the Province to improve mining regulations, compliance and enforcement mechanisms, and

oversight are important steps in this direction, but do not address the demands for reparation and remedy

identified by rights-holders in the area. Focusing on regulatory reforms alone neglects the human rights

abuses suffered by residents, such as access to a healthy environment, access to water and livelihoods, and

to cultural practices which form the foundation of Indigenous identities.

United Nations General Assembly, Universal Declaration of Human Rights 1948 Articles 19, 22, 25, 27; UN General Assemply, 28 July 2010, The human

right to water and sanitation; Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1966; UN General Assembly Basic Principles

and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human rights Law and Serious Violations of

International Humanitarian Law, 16 December 2005

It is easy to take our human rights for granted. Events like the Mount Polley disaster remind us why it is so

important that we have in place international laws which enable us to hold States and people to account

when they commit human rights harms

. Canada’s human rights obligations regarding economic, social

and cultural rights, as well as other human rights standards guaranteed internationally, are at stake under

British Columbia’s weak regulatory regime for extractives industries. Some of these rights include: health,

water, livelihood, freedom of information, the right to remedy and reparations, and to cultural practices.

Further, the UN Declaration on the Rights of Indigenous Peoples, which Canada has unequivocally

endorsed, sets out minimum standards for the “survival, dignity and well-being” of Indigenous peoples.

The Declaration builds on existing human rights standards, many of which represent established, legally-

binding obligations of states, and applies these standards to the specific needs and circumstances of

Indigenous peoples. The Declaration provides guidance to governments, a roadmap for non-Indigenous

peoples to better understand the rights of Indigenous peoples, and a powerful tool to advocate for the rights

of Indigenous peoples before courts and tribunals.

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CONCLUSION AND

RECOMMENDATIONS

The 2014 Mount Polley disaster has exposed the weaknesses of BC’s mining regulatory framework and the

vulnerabilities of Indigenous and non-Indigenous communities in the province to human rights harms from

mining disasters, such as potential violations of economic, social, cultural, Indigenous and universal human

rights. The disaster left the public deeply shaken and diminished public confidence in the government’s

ability to effectively regulate the mining industry and rectify the harms caused. It also raised fears about

corporate interests trumping human rights.

The disaster also revealed how poorly equipped the Province is to tackle potential corporate crimes under

current mining regulation and raised concerns about the potential for corporate capture in BC. Questions

remain about why prosecutors have yet to enforce the Environmental Management and Federal Fisheries

Acts or prosecute those responsible for wrongdoing.

The Province’s decision to allow the company to discharge mine waste that currently does not meet water

quality guidelines into Quesnel Lake has eroded rights-holders’ hopes that the Province will fulfill its promise

to return Quesnel Lake to pre-disaster conditions.

Amnesty International has raised these issues with the BC Government, including the concern that it

approved a return to full operations and permitted effluent discharge into Quesnel Lake although a number

of regulatory and investigative issues remain outstanding. Amnesty noted that, “allowing the mine to re-open

and return to full operations without exhausting all investigative avenues is highly irregular and could put

people and the environment at further risk.”

In response, the MOE outlined a number of actions it has

taken since the disaster, but did not address in detail any specific questions about water testing, public

consultation, health impacts on Indigenous peoples, or financial sureties. Most disappointingly, it did not

explain its reasons for allowing the mine to return to full operations before the results of the Conservation

Officer Service investigation or several other impacts reports were known.

In Amnesty International’s view,

this could put human rights at further risk and at a minimum, warrants a fuller examination.

Amnesty International does not take a position for or against mining. We call for rigorous protections of

human rights throughout the life-cycle of a project, including assessing its human rights impact, upholding

the duty to consult and meaningful consultation and compliance with the presumed requirement that the

free, prior, informed consent of Indigenous peoples will be required. In light of the Mount Polley disaster, it is

Amnesty International’s view that BC’s mining regulatory framework must be urgently reformed and brought

into compliance with Canada’s international human rights obligations. Harms resulting from mining

disasters must not be compounded by the State’s failures to uphold rights, including the right to remedy and

reparations. The rights of Indigenous peoples must be at the centre of these reforms.

Amnesty International calls on the province of British Columbia to:

RESTORE PUBLIC CONFIDENCE

 In order for the public to truly assess the human rights impacts of the Mount Polley disaster and

determine necessary remedy and reparations, make public the results of the Socio-Economic Study,

the Human Health Risk Assessment and the Ecological Risk Assessment of the Mount Polley disaster

and, crucially, the Conservation Officer Service investigation.

 Appropriate charges should be laid where there is evidence of wrongdoing, such as violations of the

Federal Fisheries or BC Environmental Management Acts. If charges are not warranted, the public

must be informed of the reasons.

Letter from Amnesty International to the BC Minister of Environment, 20 March, 2017.

Email from the Deputy Minister of Environment, 31 March, 2017.

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 Create an independent compliance and enforcement office for the mining sector independent of the

Ministry of Energy and Mines as recommended by the Auditor General, in order to avoid potential

conflicts of interest in a Ministry tasked with both compliance enforcement and mining promotion.

CARRY OUT ROBUST REFORMS OF BC’S MINING REGULATORY FRAMEWORK

 Hold a public inquiry into BC’s mining regulatory framework in order to make substantive reforms

designed to bring British Columbia’s mining law, regulation and policy into compliance with Canada’s

international human rights obligations.

 Ensure Canada’s obligations to respect and uphold the rights of Indigenous peoples are fulfilled in all

government policies and decisions in respect to resource development; in particular by incorporating

the standard of free, prior informed consent in all decision-making processes related to resource

development where the rights of Indigenous peoples may be affected.

 Require full financial sureties for mine remediation, closure, and post-closure period. Require that

companies post sufficient emergency response funds to ensure thorough clean-up of any disaster

event, fund studies into on-going impacts and conduct transparent monitoring.

MONITOR THE MEDIUM AND LONG-TERM IMPACTS OF THE MOUNT POLLEY DISASTER

 Publicly and widely share the results of MPMC, MOE and independent sampling and monitoring of

mine effluent, and the waters and aquatic life in Quesnel Lake and Quesnel River and surrounding

waters, including aquifers in the region, and conduct independent testing to ensure discharged mine

effluent and tailings sediment from the disaster do not harm the environment and lead to future

human rights harms.

 Ensure that all environmental and operational reports and studies, and monitoring and testing results,

including compliance verification, are posted in a timely fashion on a single, publicly accessible

website.

 Fund an analysis of the long-term health impacts of the Mount Polley disaster on Indigenous peoples

including but not limited to: cultural healing processes, access to information, access to traditional

foods and medicines, and the overall health of the Fraser River, which is of vital importance to

downstream Indigenous communities. Provide funding and resources for further study and

implement without delay any recommendations aimed at improving the long-term health outcomes

for Indigenous peoples affected by the Mount Polley disaster.

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AMNESTY INTERNATIONAL

IS A GLOBAL MOVEMENT

FOR HUMAN RIGHTS.

WHEN INJUSTICE HAPPENS

TO ONE PERSON, IT

MATTERS TO US ALL.

May 2017

Language: English

amnesty.ca

THE HUMAN RIGHTS IMPACTS OF THE

MOUNT POLLEY MINE DISASTER,

BRITISH COLUMBIA, CANADA

The Mount Polley tailings pond breach on August 4, 2014 is the worst

environmental mining disaster in BC’s history. The disaster shook the

public’s confidence in the province’s ability to protect their human rights and

the environment from possible harms caused by the Mount Polley tailings

dam failure. In Amnesty International’s view, the disaster raised serious

questions about the ability of the province under current mining regulations

to protect British Columbians’ economic, social, cultural, Indigenous and

universal human rights. In this briefing, Amnesty International makes

recommendations to the province aimed at restoring public confidence in its

ability to regulate its mining sector and comply with its human rights

obligations.