Failures to report on methylmercury, a neurotoxin, prompt legal action
December 6, 2016
TORONTO – Wildlands League, represented by Ecojustice lawyers, has filed a private prosecution against De Beers Canada Inc. for failing to report levels of mercury and methylmercury at its Victor Diamond Mine site in northern Ontario. Methylmercury, a neurotoxin, can threaten the health of human and aquatic life.
Wildlands League alleges that De Beers failed to report properly on mercury levels from five out of nine surface water monitoring stations for the creeks next to its open pit mine between 2009 and 2016, violating a condition of its Certificate of Approval. These are offences under subsection 107 (3) of the Ontario Water Resources Act.
“Private prosecutions are an important tool that allows private citizens to hold industry to account,” said Julia Croome, Ecojustice lawyer. “When governments don’t enforce their own laws, this course of action is in the public interest,” Croome added.
The reporting failures undermined the effectiveness of the mine’s early warning system for mercury pollution, Ecojustice lawyers representing the group say.
De Beers’ plans include extending the life of the Victor mine by digging the existing pit deeper and by digging another pit to bring the ore back to the Victor site for processing. The Victor Diamond Mine is the first of 16 potential open pit mines that De Beers could build in the Attawapiskat River watershed. Further, a number of major mines have also been proposed for the Ring of Fire region, further upstream.
Wildlands League first alerted the province and De Beers to the failures more than 18 months ago. The group then outlined these concerns and others in a special public report released last December called Nothing to See Here: failures of self-monitoring and reporting at the De Beers Victor Diamond Mine in Canada.
“After months and months of silence from Ontario, we felt we had no choice but to file charges,” said Trevor Hesselink, citizen informant in this case, and Wildlands League Director of Policy and Research. “We expected Ontario to enforce its own laws. If we can’t rely on Ontario to oversee a single diamond mine, how can we trust it to oversee the many northern infrastructure and mining developments that are on the horizon?” Hesselink added.
The mine does not directly deposit methylmercury into nearby creeks. Instead, its activities trigger impacts on the environment by stimulating the conversion of mercury already present in the ecosystem into methylmercury.
Methylmercury enters the food chain when fish absorb it directly through their gills or when they consume small organisms, like plankton, that are contaminated. The neurotoxin quickly concentrates at harmful levels in top predator fish and game, posing risks to indigenous people and recreational fishers that eat fish or game caught in the region. The highest risks are borne by women of childbearing age and children under 15, as methylmercury affects brain and nervous system development.
The maximum fine under the Ontario Water Resources Act for a first time corporate offender is $250,000 per day. De Beers has been ordered to make a first appearance in the Ontario Court of Justice at [location and time TBD after information is sworn and summons issued].
To see a new graphic novel produced by Wildlands League that tells the story behind the self-monitoring failures please see http://wildlandsleague.org/media/SafeguardingNorthernRivers-1.pdf
The Provincial Offences Act allows any citizen to initiate a private prosecution if they believe, on reasonable and probable grounds, that a person has committed an offence under Ontario law.
Ecojustice has used this safeguard successfully in the past.
In 2009, Ecojustice worked with a citizen informant to launch a private prosecution against Syncrude for the deaths of 1,600 ducks that landed on the company’s toxic tailings ponds. Initially, both provincial and federal regulators said they would hold Syncrude accountable. But as time passed it became clear that they wouldn’t prosecute the company.
Once the private prosecution was launched, Alberta quickly took over the case and the provincial and federal governments laid their own charges. Syncrude was eventually found guilty and ordered to pay three million dollars – the largest fine for an environmental crime in Canadian history.
De Beers’ Victor Diamond Mine, 90 km upstream of the community of Attawapiskat, is the first major industrial intrusion into the Hudson Bay Lowland, a globally significant ecosystem in Ontario, Canada. It is comprised of intact wetlands and forests, carbon rich peatlands, clean, undammed waters and habitat for continentally important populations of wildlife such as caribou, wolverine and lake sturgeon. It is the ancestral lands of many indigenous communities.
There is the potential for at least 15 more open pit mines to be built here thereby adding more pressures to the receiving lands and waters around the mine site. Wildlands League is taking the step of initiating a private prosecution because Ontario failed to enforce its own law. Industry must be held to account to ensure the environment is protected and monitoring programs have integrity. Wildlands League and Ecojustice are taking this action to protect the public interest.