Xatśūll asks judge for ‘urgent' injunction to stop raising of mine tailings dam that failed in 2014
The Xatśūll First Nation is asking a judge to urgently stop the controversial Mount Polley mine from raising its nearly 20-storey tailings dam even higher on its territories.
On Friday, leaders from the Secwépemc community filed for an injunction 'on an urgent basis' against ongoing construction to increase the height of the dam — which was rebuilt after it collapsed in 2014 in one of the country's worst mining disasters.
The new injunction application came ten days after the community's lawyers filed a lawsuit against the province's permits for Mount Polley Mining Corp.
The April 15 court petition — which has not yet been heard — asks a B.C. Supreme Court justice to review the legality of those permits, which the provincial government issued without requiring a new environmental assessment or Indigenous consultation.
The Ministry of Mining and Critical Minerals said it 'cannot comment on matters that are before the Court.'
Nearly 11 years ago, the mine's previous tailings dam collapsed — dumping 25 million cubic metres of toxic waste and water into the local watershed.
'I can think of 25 million excuses of why we wouldn't want to increase the height of that,' quipped Xatśūll First Nation Kúkwpi7 Rhonda Phillips outside the Vancouver Law Courts on April 15.
'We all know the history of Mount Polley … We will not let that history repeat itself.'
Their legal battle has also drawn support from a growing list of Indigenous leaders opposed to the province's vow to '
fast track
' mining and energy projects to
stave off economic threats
from the 'U.S.-Canada' trade war.
Mount Polley — an open-pit copper and gold mine nearly 60 kilometres northeast of Williams Lake — sits on territories of both Xatśūll First Nation and Williams Lake First Nation.
The mining company, a subsidiary of 'Vancouver'-based Imperial Metals, says it needs to raise its earthen tailings dam from 60 to 64 metres high, and eventually up to 77 metres — roughly equivalent to a 25-storey building.
'As the mine continues to operate and produce more tailings, the height of the storage facility must be gradually increased to safely accommodate this material,' the company
stated on its website
on April 15.
'The dam raise helps manage water … The main reason for this raise is to make room for the additional tailings generated as part of our ongoing mining activity.'
The Aug. 4, 2014
collapse of the original dam
— which was 10 metres
shorter than today's dam
— caused devastation to fish habitat and ecosystems downstream.
Last December, a decade after the disaster, federal prosecutors
charged the mine's owners
with 15 offences under the Fisheries Act. And Engineers and Geoscientists B.C. previously
disciplined three engineers
at the mine for 'unprofessional conduct,' issuing $225,000 in fines.
'Since the 2014 disaster,' Phillips told reporters, 'our people have faced emotional and cultural trauma, environmental dispossession, impacts on salmon, moose and caribou.'
And the aftermath of the disaster worsened her community's 'distrust in government and industry,' she added — despite mining providing jobs in her community.
Xatśūll First Nation, she emphasized, recognizes the importance of the industry.
'The majority of our members drive cars, … live in homes, and benefit from the materials that mining provides,' she said.
'We support development that is responsible, sustainable and carried out in partnership with Indigenous nations.'
According to the B.C. Supreme Court petition filing, the First Nation is asking the court to reverse the provincial mining ministry's March 27 '
Consent for Material Alteration
' decision and the permits issued based on it.
The petition also wants the court to declare that provincial officials 'breached' the Environmental Assessment Act and their duty to consult the First Nation, 'by making the decisions in the absence of a valid environmental assessment certificate' — as well as a court order 'directing the ministers and the deputy chief permitting officer to reconsider.'
Meanwhile, Imperial Metals said 'it is too preliminary for Mount Polley to make a substantive comment' on the nation's legal petition.
But in a post to its website blog a day after Xatśūll First Nation's judicial review application, the firm emphasized the lawsuit is against the provincial permit approval process 'and not of Mount Polley per se.'
The company's statement said the First Nation renewed its longstanding participation agreement with the mine in 2016 — 'two years after the breach,' Imperial Metals noted — and the two sides met 'monthly' for the past three years as it prepared its plans, it added.
'Mount Polley continues to work with Xatśūll representatives on environmental matters, including these permits,' the April 16 blog post stated, 'and we take pride in using Xatśūll business ventures for some of the mine's largest external contracts.'
Ahead of filing the judicial review petition earlier this month, the First Nation held a meeting of its members before proceeding with the lawsuit.
That was important, Phillips told IndigiNews, to ensure elected leaders had the wider community's green light.
'We wanted to make sure that we had their consent before moving forward, and we wanted to hear their voices,' she explained.
But while the mining industry can be controversial among First Nations — and levels of support for particular projects vary widely from community-to-community — the Xatśūll case has drawn the attention of other Indigenous leaders.
That's because some are drawing a link to the 'U.S.-Canada' trade war — and the province letting Mount Polley proceed with construction without undergoing a new environmental assessment or consulting local First Nations.
'Government continues to make progress on previous investments to streamline permitting across the natural-resource sector so high-priority projects can be built faster,' the province announced on March 4.
'This includes fast-tracking 18 major critical mineral and energy projects.'
Mount Polley is
not on the province's list
of 'high-priority' projects — a list of 'mines, LNG and gas infrastructure, and electrical power projects' including 'First Nations clean energy partnerships.'
But there are at least four other gold or copper mines on the
candidates released so far
, several of which face Indigenous opposition.
The province's overall approach raised alarm bells for the First Nations Summit (FNS).
'We are told that some projects have to be expedited because of the tariffs being imposed in the U.S.,' said Hugh Braker, with the organization's political executive and member of c̓išaaʔatḥ (Tseshaht) First Nation, part of the Nuu-chah-nulth Nation.
'We're here to tell the government you cannot hide behind the tariffs. You cannot turn your back on Aboriginal title and rights just because you have a crisis in trade with the United States.'
His FNS executive colleague Robert Phillips added that increasing the size of the tailings pond at a mine that's already caused so much trauma to Indigenous communities and ecosystems is 'something bad just waiting to happen.'
Rushing such projects without mandatory consultation is too risky, he said.
'We're not here to listen to remarks about fast-tracking,' said Phillips, a member of Tsq'escen' (Canim Lake Band), part of Secwépemc Nation. 'That is not right — British Columbia has the time.'
But the province's Ministry of Mining and Critical Minerals insisted no projects will be fast-tracked without Indigenous consultation and proper review processes.
'These projects will still need to proceed with consultation with First Nations and meet or exceed B.C.'s world-class environmental standards,' a spokesperson said in a statement Friday.
'Our focus is streamlining the way government does its job and getting to decisions more quickly.'
For example, the spokesperson said, processes could be sped up by having 'all agencies' co-operate to review projects simultaneously, 'rather than one after the other.'
'All decisions,' the statement added, 'remain subject to technical review and consultation.'
The B.C. Assembly of First Nations (AFN) also opposes any fast-tracking of resource projects without full Indigenous consultation and environmental review.
Regional chief Terry Teegee — a member of Takla Nation who is of Dakelh, Gitxsan and Sekani descent — called on the province to 'live up to their own laws' including its Declaration of Rights of Indigenous Peoples Act, and its duty to ensure 'free, prior, and informed consent' for activities that impact First Nations' lands.
And Stewart Phillip, president of the Union of B.C. Indian Chiefs (UBCIC), also raised concerns about 'fast-tracking' projects.
'It was the worst mining disaster in Canadian history,' he said. 'Saying we have to fast-track this project … it makes no sense. It's absolutely insane.'
He said the UBCIC — which sits on the B.C. First Nations Leadership Council alongside the B.C. AFN and First Nations Summit — is 'here to service notice' to the provincial NDP government.
'We will not stand idly by and allow the government to fast-track and completely ignore their legal obligations,' said Phillip, former chief of snpink'tn (Penticton) Indian Band.
The tailings storage facility at the Mount Polley mine site holds a mix of water and waste materials from the mine's operations — including
toxic heavy metals
such as arsenic, lead, mercury, cadmium, cobalt, thallium, antimony, chromium, vanadium, and manganese, according to federal regulators.
The company's website said its dam 'meets or exceeds' all 'strict engineering and environmental standards.'
In the years since Imperial Metals' dam collapsed in 2014, the mine disposed of 855 tonnes of the arsenic — a highly fatal poison — into its on-site tailings storage, according to the
most recent federal data
, up to 2023.
Arsenic, the
World Health Organization (WHO) notes
, is 'a confirmed carcinogen and is the most significant chemical contaminant in drinking-water globally.'
Over that same time period Mount Polley dumped nearly six tonnes of mercury, another highly toxic heavy metal —
which the WHO deems
'a particular threat to the development of the child in utero.'
Other heavy metals disposed on-site from 2015-2023 include 45,784 tonnes of the
neurotoxin
manganese; 14,312 tonnes of vanadium; 3,047 tonnes of chromium; 1,188 tonnes of cobalt; 417 tonnes of lead; and 11 tonnes of cadmium.
'The toxic metals are still detectable in the critical waterways today,' Phillips said, causing 'a total loss of access to our sacred areas and our food sources.'
In a
post to the mine's website
last October, the firm claimed all environmental damage caused by its tailings breach 'has been successfully repaired and in many cases, the affected habitats have been enhanced beyond their original state.'
Mount Polley said it's invested more than $75 million to remediate the impacts of its 2014 tailings dam breach, including work to enhance fish habitats and reforestation.
'Fish populations are thriving again,' it stated.
For Robert Phillips, with the First Nations Summit, that couldn't be farther from the truth.
'You had a beautiful Quesnel Lake — you could go fishing, you could go swimming in the freshest water in the world,' he said. 'And that's not the case anymore.'
UBCIC's Phillip lambasted any attempt to downplay the lasting damage the catastrophe caused.
'When that tailings pond broke loose,' he said, 'it contaminated Quesnel Lake and the Fraser River, endangered B.C. wild salmon.'
For B.C. AFN's Teegee, there was no question he and other First Nations Leadership Council members wouldn't 'stand here in support of Xatśūll and their fight for a rightful say,' he said.
'And especially in a project such as Mount Polley that has a disastrous history.'
Xatśūll Kúkwpi7 Phillips thanked him and the other leaders for coming to her side as her nation launched its legal challenge.
But she said the biggest thanks goes to her own community who gave their blessing.
Surrounded by roughly a dozen community members on the courthouse steps — including her sister and oldest daughter — Phillips said their collective motivation is 'for future generations.'
'Your strength and your passion fuel me,' she said to her fellow Xatśūll members — including several Elders — who traveled to 'Vancouver' from their territories.
'We're standing up here saying enough is enough,' she added. 'You know, no longer can things keep happening without us.
'We need to make sure that we're at the table.'
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