Xatśūll First Nation has expressed extreme disappointment with two provincial decisions authorizing Mount Polley Mining Corporation (MPMC) to raise the height of the Tailings Storage Facility dam at the Mount Polley mine in BC by four metres.
“The Province continues to demonstrate it is unwilling or unable to responsibly regulate mining in our Territory, with its past actions and its recent decision to expedite natural resource projects to stimulate economic growth in response to the current political and economic climate,” said Xatśūll’s Kukpi7 (Chief) Rhonda Phillips in a news release.
This case is “about the legal and moral obligation to uphold Indigenous rights across B.C. and beyond,” Phillips added in the news release. “We need to maintain balance in decision making to ensure short-term decisions do not have long-term negative consequences for generations to come.”
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In its news release, the First Nation noted that MPMC plans to raise the dam by 13 more metres in the near future and expand the mine’s pits.
Before the Supreme Court of British Columbia, Xatśūll filed a judicial review application against the Minister of Mining and Critical Minerals, Minister of Environment and Parks, Deputy Permitting Officer, Major Mines Offices, and MPMC. It seeks to overturn the provincial decisions and prevent construction on the dam until the conclusion of the court proceedings.
The First Nation stressed that the courts should give guidance to ensure BC fulfills its legal obligations to hold environmental assessments before approving construction. Xatśūll claimed that BC improperly approved raising the dam without:
- following the required environmental assessment process
- fulfilling its duty to consult
- seeking to obtain Xatśūll’s free, prior, and informed consent as required by its legal commitments under BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA)
BC’s alleged shortcomings
First, Xatśūll said in its news release that BC did not adhere to the legally required environmental assessment process and approved the dam raise based solely on narrow design and engineering considerations under BC’s Mines Act, 1996.
Second, regarding the duty to consult, the First Nation stressed that it should be part of the provincial government’s development plans. Xatśūll acknowledged that its members would benefit from the materials obtained through mining.
Xatśūll added that it would support development as long as it is responsible, sustainable, and done in partnership with Indigenous Nations while protecting Xatśūll’s Aboriginal title, rights, lands, community health, and the well-being of species like salmon, moose, and caribou.
“The risks of raising the Tailings Storage Facility dam must be properly understood by Xatśūll and the public before any work is authorized, and we are standing up to demand accountability, transparency and a proper assessment process that respects Indigenous knowledge and law,” Phillips said in Xatśūll’s news release.
Third, the First Nation said BC may fall short of its legislated commitments to implement the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) under the DRIPA. Xatśūll said it
will refrain from consenting to the mine’s expansion until BC sufficiently tackles its serious concerns and abides by the environmental assessment process.
“The decision to allow Mount Polley to raise its tailings storage facility dam without seeking to obtain Xatśūll First Nation’s consent is nothing short of unconscionable,” Phillips said in the news release. “This demonstrates a lack of understanding of the long-term negative impacts of this project to our traditional territory and disrespect for Xatśūll First Nation and its people.”
MiningWatch Canada’s support
MiningWatch Canada said it strongly supported Xatśūll’s application.
The non-governmental organization noted that Canada’s largest environmental disaster occurred in the Mount Polley mine when the tailings dam collapsed in August 2014; spilled contaminated mine wastewater and tailings into Polley Lake, Hazeltine Creek, Quesnel Lake, and the Fraser River; and led to lasting environmental and cultural damage.
“We can only speculate on whether a proper environmental assessment could have helped prevent the Mount Polley disaster,” said Jamie Kneen, MiningWatch Canada's national program co-lead, in a news release. “However, to refuse to do an assessment and allow the mine to expand without additional scrutiny is just irresponsible.”
MiningWatch Canada also noted that the mine received permission to recommence operations less than a year after the disaster and has disposed of untreated mine wastewater into Quesnel Lake since 2017.
“If the Province wants to be taken seriously when it promotes its mining regulations as ‘world-leading,’ it needs to follow its own laws to uphold the rights of Indigenous Nations and protect communities and watersheds,” Kneen said in the news release. “We are very grateful to Xatśūll First Nation for taking this action for real accountability.”