Earlier this month the St. John’s Telegram reported on the legal challenge launched by the Sandy Pond Alliance – and supported by the Council of Canadians – against the Schedule 2 provision that allows for the destruction of freshwater lakes for mine tailings. The article notes, “The alliance launched its court challenge last year (on June 4, 2010) against metal mining effluent regulations created through a Canada’s Fisheries Act amendment. The alliance maintains the regulations are contrary to the intent of the Fisheries Act because they permit the destruction of freshwater fish habitat and unique biodiversity.”
SANDY POND ALLIANCE AFFIDAVIT: “Documents prepared by (Vale’s) lawyers for the case are about three-feet high, (SPA lawyer Owen) Myers said, whereas the alliance has just one lawyer and an affidavit of about 20 pages from John Gibson, a former Department of Fisheries and Oceans (DFO) scientist. At a recent federal court hearing, Myers said the company’s lawyers wouldn’t agree to anything and are even challenging Gibson’s affidavit as being based on hearsay, yet one of their witnesses claims he was told by residents that smelt were first introduced into Sandy Pond years ago by trout fishermen who wanted to catch big trout so they could win the May 24th prize at the Sports Shop. ‘We all just killed ourselves laughing,’ Myers said, to think that fishermen would illegally transport live smelt in buckets under each arm, while slogging it over three to four miles of rough terrain to get to the pond.”
CONCERNS ABOUT FISH COMPENSATION PLAN: “Vale intends to proceed this year with its compensation plan for Sandy Pond, which includes moving fish from the pond to a new habitat, but the company says no fish have been moved yet. …(Vale spokesperson Bob) Carter said work is proceeding to access the area, a trail has been cut, but a road has yet to be built. The actual timing of when the fish will be moved will be up to the site managers. …In a Canadian Society of Environmental Biologists newsletter, Gibson said compensation for the destruction and alteration of fish habitat was calculated as 18.11 hectares of ‘lacustrine habitat’ to be created by making a reservoir, two-to-eight-square metres deep and impounding a nearby valley. The company also plans to expand existing ponds which have filled in with vegetation to create five hectares of aquatic habitat. Gibson said the calculation requiring only 18.11 hectares of lacustrine habitat is based on a DFO document describing how to assign ratings to habitat features for each fish species. The alliance believes the compensation proposal is ‘naive and inadequate’. One of its arguments is that Sandy Pond brook trout have evolved an ecotype of large fish that use the pelagic, mid-waters of the lake and feed on dwarf smelt. Therefore, Gibson said the pelagic zone of Sandy Pond should be given a much higher rating for the trout than was given in the company’s environmental impact statement. …Myers said it’s his understanding the company has recently been doing work in the Northeast Placentia River and at Salmon Cove in Conception Bay, adding gravel and removing obstructions, claiming that by doing this more salmon will go up there. But Myers said experts on the alliance side think what the company is doing is nonsense because there’s already fish in the river. He said the company’s plans seem to miss that there’s only so much food in the river system for the fish to eat. …He believes the whole compensation plan is poorly conceived. Taking a unique population of trout that has developed over 10,000 years and that feed on smelt and dumping them in another lake will double the damage.”
BACK IN COURT: The article notes, “The two sides are expected back in court in September and Myers said he’s hoping they can set timelines for the actual court case.” A 2-3 day Federal Court of Canada hearing may occur in November-December of this year. It’s not clear at this point if the Federal Court justice would issue their ruling in November-December or at some point in early 2012. The Vale plant that would dump approximately 400,000 tonnes of tailings annually into Sandy Pond is to be completed in 2013.
The full Telegram article can be read at http://canadians.org/blog/?p=9933.
