Environmental Watchdog Urged to Probe Canada’s ‘Regulatory Failure’

Report by University of Victoria’s Environmental Law Centre says failure to impose Fisheries Act powers has allowed cross-boundary coal mining pollution to persist for years

By Tristan Scott
The Elk River as seen at sunrise near Fernie, British Columbia on Sept. 25, 2019. Hunter D’Antuono | Flathead Beacon

Canada’s top environmental watchdog is facing mounting pressure to investigate whether years of alleged regulatory failures by its federal government has allowed toxic contaminants to leach from British Columbia (B.C.) coal mines into the transboundary watershed it shares with Montana, poisoning aquatic ecosystems while leading to the collapse of native fish populations.

A team of researchers from the University of Victoria Environmental Law Centre (ELC) compiled the evidence in a petition to Jerry V. DeMarco, the country’s Commissioner of the Environment and Sustainable Development, to investigate why the federal and provincial governments have not taken adequate steps to curb the pollution, which has continued unabated even as additional mines are approved for development.

Indeed the ELC report emphasizes the urgency of its request by detailing new coal mine proposals that are advancing through various stages of regulatory review by the Impact Assessment Agency of Canada and B.C.’s Environmental Assessment Office.

“Unbelievably, even though current impacts are not being adequately addressed, massive new additional coal mining projects are now proposed,” the petition states.

The latest call for the federal probe follows repeated pleas from U.S. government officials, as well as from state and federal regulatory agencies, tribal leaders, and business stakeholders, who point to two decades of scientific evidence detailing how pollutants from coal mines owned and operated by Teck Resources have been allowed to accumulate in the watershed. In particular, a mining contaminant called selenium has been allowed to flow from the Elk River Valley in B.C. into cross-border waterways spanning Montana and Idaho, most notably the Kootenai River basin and Lake Koocanusa.

The 330-page report submitted in July urges the environment commissioner to investigate allegations of regulatory negligence by Environment and Climate Change Canada (ECCC) and Fisheries and Oceans Canada (FOC), and issue a formal report on its findings.

“This regulatory failure has directly contributed to one of the most serious and permanent environmental disasters in Canadian history,” according to the report, which was compiled by ELC students Jesse Langelier, Russell Chiong and Ellen Campbell under the supervision of Calvin Sandborn, the school’s legal director. It was sent on behalf of the conservation group, Wildsight, which has been tracking the issues brewing in the Elk and Kootenai rivers for years.

“The governments of Montana, Idaho, and the United States have long complained about Canada’s remarkable failure to control the pollution now poisoning American waters and fish downstream from the Elk Valley coal mines,” the report states. “Those governments are now desperately attempting more definitive action to prompt Canada to address its international obligations — and to stop polluting its neighbour.”

The petition is the latest effort to furnish a higher degree of regulatory scrutiny over the transboundary watershed, which on the B.C. side is bristling with metallurgic coal mines operated by Teck. In March, federal prosecutors with ECCC leveled $60 million in fines against Teck Coal Limited, a subsidiary of Teck Resources, which pleaded guilty to two counts of unlawfully depositing deleterious substances into water frequented by fish.

However, the ELC petition characterizes that federal action as “a classic example of far too little, far too late.”

“Clearly, the fault in this long-neglected environmental tragedy belongs to both the federal and provincial governments,” according to the petition.

In 2016, the B.C. Auditor General released an audit chastising provincial mine regulators for “a decade of neglect in compliance and enforcement,” highlighting the coal mines above Lake Koocanusa as particularly egregious examples.

“We found almost every one of our expectations for a robust compliance and enforcement program within the (Ministry of Energy and Mines) and the (Ministry of Environment) were not met,” B.C. Auditor General Carol Bellringer wrote in the introduction to the report.

But the ELC’s petition goes a step further, urging Canada’s lead federal auditor to investigate instances of regulatory negligence, including whether the country was violating its international obligations under the Boundary Waters Treaty, signed in 1909. 

The alleged breach of Canada’s international environmental obligations recently attracted comment from both the United Nations’ Rapporteur on Hazardous Substances and from a bipartisan slate of U.S. senators representing downstream states, including Montana. The eight senators from Alaska, Montana, Washington, and Idaho drafted a letter to B.C. Premier John Horgan to complain about the lack of adequate regulation of the Elk Valley mines and other Canadian mines polluting U.S. watersheds — and raised questions concerning “the enforcement of the Boundary Waters Treaty of 1909.”

U.S. Sen. Jon Tester, D-Montana, subsequently issued a letter to Secretary of State Anthony Blinken, calling for referral of the Elk Valley coal mining pollution problem to the International Joint Commission (IJC) — a call previously made by Montana and the Confederated Salish and Kootenai Tribes (CSKT).

“In addition, two U.S. members of the IJC have not only suggested that Canada may be violating the Boundary Waters Treaty but, surprisingly, also accused Canadian IJC Commissioners of suppressing key scientific evidence on risks posed by Elk Valley selenium discharge,” the ELC petition states.

Earlier this summer, all three U.S. members of the IJC arrived in Montana for a “fact-finding mission” at Libby Dam, a tour of the facility that involved representatives of the U.S. Geological Survey (USGS), the EPA, and the CSKT.

According to Commissioner Jane Corwin, the IJC’s Canadian counterparts would have joined the tour were it not for the travel restrictions, though all six members met telephonically for a debriefing of the tour and the issue. It’s now up to the State Department and Global Affairs Canada to determine whether they can resolve the stalemate on the border without IJC mediation, or whether they’ll request assistance.

For its part, Montana recently took steps to address the selenium problem by adopting its own site-specific water quality standard for selenium at the border, a protective value crafted through years of scientific work to safeguard fish species in Lake Koocanusa and the Kootenai River. Despite selenium levels exceeding the standard, B.C. continues to consider proposals for new mines and mine expansions, while Teck Resources has filed a petition with the Montana Board of Environmental Review to weaken the standard, arguing it is inconsistent with the federal guidelines.

Meanwhile, B.C. has failed to move forward on the parallel limit that they previously committed to and has indicated they will not be adopting an enforceable limit for selenium in Lake Koocanusa. “The grossly negligent regulation of coal mining in the Elk Valley exposes deep flaws in Canadian environmental regulation,” the ELC petition states. “The dying fish populations and poisoned watershed have exposed the abject state of both provincial and federal environmental regulation. The coal mining there has produced massive environmental impacts in two countries — impacts that will not be rectified for decades to come, if ever.”

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