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Vale setback: Sandy Pond Alliance lawsuit ruling places severe restrictions on intervener status

Brazilian mining company Vale was recently dealt a serious blow in its bid for intervener status in a legal challenge launched last year by the Sandy Pond Alliance to Protect Canadian Waters. The Federal Court of Canada decision granted limited intervener status to Vale, the Mining Association of Canada, and the Mining Association of British Columbia. The Alliance takes this as a victory in its efforts to protect Sandy Pond – a pristine 90 acre lake situated in eastern Newfoundland, noted for its abundant, trophy-winning brook trout, and unique 10,000 year old ecosystem.

Vale, the Mining Association of Canada and the Mining Association of British Columbia filed a motion to be designated as interveners in this legal challenge with fairly broad powers or, alternatively, to have “party” status.  Madam Justice Heneghan’s recent 23-page written decision on the motion creates very restrictive conditions in how the mining corporation and associations can intervene in the case.

“Justice Heneghan’s decision essentially gives a strong ‘no’ to the broad participatory powers sought by the interveners as proposed in their submissions,” says Owen Myers, lawyer for the Sandy Pond Alliance. “The Alliance is concerned that Vale's request for full intervener status would have the effect of dragging out the case extensively thus driving up costs and making it prohibitive for the volunteer, non-profit citizen’s group to pursue the legal challenge. The decision denied the mining corporations the full rights of a respondent, and addresses our concerns.”

Federal regulations created by ministerial action under Canada's Fisheries Act allow mining companies to use natural water as waste dumps. The Alliance considers these regulations as contrary to the intent of the Fisheries Act because they permit the destruction of freshwater fish habitat and unique bio-diversity. The Sandy Pond Alliance launched their legal challenge to strike these regulations from the Fisheries Act in 2010. 

“Vale has taken advantage of the regulatory loophole to obtain federal approval for the use of Sandy Pond, a pristine Newfoundland lake, as a toxic dumpsite for its nickel processing plant,” says Ramsey Hart, Program Coordinator of MiningWatch Canada. “Their request for intervener status is about protecting corporate profits rather than our water and environment.”

“Our case is strong and we want to protect all of Canada's natural ponds, lakes and waterways from the threat of being designated mine or smelter tailings ponds and being destroyed,” said Ken Kavanagh, Director of the SPA. “We view the actions of the federal government in 2006, which permitted mining companies to do this, as unconscionable.” Before 2006, mining and smelting companies were required to build lined pits to store mine and smelter waste.

The Sandy Pond Alliance’s legal challenge was recently strengthened by a federal government decision to reject a similar proposal at the Taseko/Prosperity Mine in British Columbia. Yet, despite similar concerns across Canada, some 12 lakes and waterways including Sandy Pond are still under threat from this regulatory loophole in the Fisheries Act.

The Alliance is made up of members of the Natural History Society of Newfoundland and Labrador, private citizens, scientists and national organizations including the Council of Canadians, MiningWatch Canada and Sierra Club Canada. The Alliance was formed when Brazilian mining giant Vale was given permission to use Sandy Pond as a toxic dump site from its nickel smelter operations. The Alliance opposes to the dumping poisonous mine waste into natural lakes and waterways in Canada.