Published on August 2, 2011
By Deana Stokes Sullivan, The Telegram
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.
“We do have all the approvals in place,” company spokesman Bob Carter said Monday. “This year, it is our intent to do work in that area.”
He said an ongoing court challenge, launched by the Sandy Pond Alliance against Vale’s plan to use the pond for the disposal of tailings from its Long Harbour hydromet nickel processing plant, won’t have any effect on the company moving ahead with its compensation plan because the lawsuit is between the alliance and the federal government.
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.
Owen Myers, lawyer for the Sandy Pond Alliance, said he’s heard rumours that the company may be moving fish soon and, if they have ministerial approval, they can “roll ahead any time.”
He said the alliance has discussed this and it’s not in a position to seek an injunction to stop the relocation of fish because it’s spending all its resources on challenging the legislation that permits the project.
The alliance launched its court challenge last year 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.
Myers said the alliance had to make a decision a long time ago about whether to file injunctions, and had to accept, in challenging the regulations for the sake of all ponds, rivers and lakes across the country, that the court challenge might not be heard in time to stop the Long Harbour project.
He said the company has an army of lawyers and unlimited resources and doesn’t care if it spends $20 million.
“It means nothing to them.”
If the alliance unwisely spends the little bit of funding it has and what it can raise, nothing will be achieved, Myers said.
“You can get this short-term advantage and a bit of publicity, but after that you’ll just roll over to the side of the legal road, out of fuel.”
Documents prepared by the company’s lawyers for the case are about three-feet high, 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.
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.
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.
“It’s like you could have 10 cows in a field doing very well, but put 100 in and they’re all going to start starving,” Myers said.
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.
“You destroy one lake and genetically modify another lake,” Myers said.
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.