Lawsuit exposes Canada's toxic tailings secret

MEDIA BACKGROUNDER

November 7, 2007

The US Toxics Release Inventory (TRI) is a publicly available database that contains information on toxic chemical releases self-reported to government each year by industrial facilities

Metal mining was added as a sector to TRI for the 1998 reporting year and was to include all pollutant releases, including reporting of waste rock and mine tailings

An industry lead lawsuit (Barrick Goldstrike Mines Inc. vs. Whitman) challenged the TRI mining reporting and delayed the sector from reporting full releases until the 2001 reporting year

TRI reporting from Metal Mining Sector in 2005

In 2005, the US metal mining sector reported the release of 530,418,243 kilograms of pollutants, accounting for 27.1% of all pollutants reported to the TRI

The metal mining sector ranked #1 amongst TRI sectors for total releases in 2005 and included the top 7 TRI facilities

In 2005, 72 mining facilities reported to the TRI, less than 0.3% of the 23,566 facilities reporting to TRI from all sectors in 2005

The amount of chemicals reported in waste rock and tailings from TRI metal mines is estimated to be 516,446,723 kg, including various toxic chemicals considered to be carcinogens and reproductive or developmental toxins

The reported chemicals released in tailings and waste rock included:

174,065,827 kg of lead and its compounds

77,503,483 kg of arsenic and its compounds

49,114,283 kg of copper and its compounds

2,136,300 kg of nickel and its compounds

1,664,647 kg of mercury and its compounds

839,921 kg of cyanide compounds

232,204 kg of cadmium and its compounds

270 kg of polycyclic aromatic hydrocarbons


Canada’s Mining Sector and the NPRI

The National Pollutant Release Inventory (NPRI) is a publicly accessible inventory of pollutants released, disposed of and recycled by facilities in Canada

Certain industrial facilities are required to report to the NPRI under the Canadian Environmental Protection Act, 1999 (CEPA 1999)

Until 2006 there was an exemption from reporting for mining facilities which provided that pollutant releases and transfers from extraction or primary crushing did not need to be reported

In 2006, the Minister exercised discretion under section 46 of CEPA to remove the exemption from reporting pollutant releases and transfers from extraction or primary crushing previously enjoyed by mining facilities

Despite the exemption removal, subsequent actions by the Minister and his delegates have conflicted with the requirements relating to the reporting of releases and transfers to waste rock dumps and tailing impoundment areas from mining

In particular, after the Minister exercised jurisdiction to remove 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

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

The lawsuit

The lawsuit is an Application for Judicial Review filed in Federal Court by Ecojustice (formerly Sierra Legal) on behalf of MiningWatch Canada and Great Lakes United

The application alleges that the Minister of the Environment has been making representations to and communicating with mining facilities in relation to the reporting of releases or transfers of pollutants to tailings impoundment and waste rock disposal areas in a manner that conflicts with the Minister’s exercise of discretion under sections 46 and 47 of the Canadian Environmental Protection Act, 1999, R.S.C. 1999, c. C-33 (CEPA)

The application alleges that the Minister of the Environment has been acting, and continues to act, without jurisdiction or beyond his jurisdiction; has erred in law; and is acting contrary to law within the meaning of section 18.1 of the Federal Courts Act

The lawsuit seeks a declaration from the court that the Minister has abused his discretion by communicating to mining facilities in a manner that permits them to violate CEPA, and a mandamus order directing the Minister to publish the NPRI data for mining facilities for the 2006 reporting year

The groups

Ecojustice (formerly Sierra Legal Defence Fund) is Canada’s largest non-profit environmental law organization, dedicated to defending the right of Canadians to a healthy environment (www.ecojustice.ca)

Great Lakes United is a twenty-five year old bi-national environmental group dedicated to leading efforts to protect and restore the Great Lakes and St. Lawrence River (www.glu.org)

MiningWatch Canada is a national non-profit coalition of organizations from across Canada with a mandate to support communities affected by mining (www.miningwatch.ca)