Schedule 2 and the End of Fresh Water Lakes in Canada

PHOTO: This is what Schedule 2 looks like

by Brent Patterson, - Council of Canadians

In 2010, the Council of Canadians joined with the Sandy Pond Alliance for the Protection of Canadian Waters to launch a Federal Court challenge against the federal Schedule 2 provision that allows mining companies to dump their tailings waste into freshwater lakes. The challenge was intended to save both Sandy Pond in Newfoundland and other lakes threatened by Schedule 2 across the country, including Fish Lake in British Columbia. Mining companies have applied to use about 13 natural water bodies as waste sites, with 5 water bodies already approved for destruction.

The Brazilian mining corporation Vale and the Mining Association of Canada made efforts to delay the Federal Court hearing so much so that the case was only heard this past week by Justice Elizabeth Heneghan.

This morning, The Telegram reports that Vale removed about 1400 fish, mostly trout, from Sandy Pond in July-September 2011 and June 2012. “Then the company claimed their former home as a containment area for tailings from its new hydromet nickel processing plant. …Vale has added three dams at the Sandy Pond site - increasing the capacity of the containment area. …Liners have been installed. …The site formerly known as Sandy Pond will start being filled with hydromet tailings when the processing facility begins production, scheduled for later this year.”

Beyond the loss of water with destruction of Sandy Pond, the newspaper also notes that the Vale processing plant will take about 4.4 million cubic metres of water a year from Rattling Brook Big Pond.

While it now appears that the ruling from Justice Heneghan will not save Sandy Pond (though it might be possible to remediate the lake if toxic tailings were not dumped onto what is now left of it), we remain hopeful that her ruling will find the federal Schedule 2 approval of this destruction ultra vires or illegal in relation to the Fisheries Act, and that it could serve as an important precedent to protect the other freshwater lakes facing this same fate across the country.

We find it unacceptable, as reported earlier this week by The Telegram, that the federal government, Vale and Mining Association of Canada lawyers argue that “the Sandy Pond Alliance members incorrectly believe environmental protection, habitat protection, is the overarching purpose of the Fisheries Act.”