R. John Gibson (email@example.com)
Sandy Pond Alliance to Protect Canadian Waters Inc.
A flame has been extinguished in our natural world, with both Federal and Provincial governments having given permission for Sandy Pond, located near Placentia Bay, Newfoundland, to be used as a toxic waste dump. A mining company,Vale, was given the lake, under Schedule 2 of the Metal Mining Effluent Regulations and the Fisheries Act, to use as a Tailings Impoundment Area. Sandy Pond was a pristine, isolated post-glacial lake, of 37.83 ha, with a unique ecosystem, including trophy brook trout, probably the largest brook trout left on the Island. Three species were present, brook trout (Salvelinus fontinalis), rainbow smelt (Osmerus mordax) and American eel (Anguilla rostrata).
Judging by work in other similar situations, where a population has been isolated for thousands of years, the trout and the smelt were probably unique genotypes. Yet, no genetic studies were done before eradicating these stocks. After attaining a certain size the brook trout fed on the smelt, and grew up to 3 – 5 lbs. The brook trout had a deep girth, and ‘looked different’ from most brook trout, and were probably a unique race. Destroying biodiversity contravenes the Convention on Biological Diversity (1992), signed by Canada, but this was not considered.
In 2010 the Sandy Pond Alliance to Protect Canadian Waters, a group of concerned Canadian citizens, challenged the give-away of this priceless natural resource under the recent federal government change allowing toxic wastes to be dumped into pristine waters. Our legal case was based on the premise that the guiding principle of the Fisheries Act of Canada is conservation and such destruction was beyond the parliamentary intention of the Act, or in legal terminology – ultra vires. In her ruling of October 31, 2013 Federal Court Justice Heneghan indicated that “…subsection 35(2) of the Fisheries Act allows the Minister to authorize the alteration , disruption or destruction of fish habitat under any conditions he deems appropriate”. Thus, if the Government so chooses, Sandy Pond, or any other waterway in Canada, can simply be taken away from citizen owners and given free of charge for a destructive industrial use.
Judge Heneghan described the Environmental Impact Study, which was in fact surprisingly inadequate, as an ‘extensive environmental study of Sandy Pond’. No studies were done to estimate the biological productivity of the lake. The population estimates were a failure. For example, although the proponent (Vale) claimed to have done a mark and recapture study to estimate numbers of fish, no recaptures of smelt were made, but they say if they had caught one marked smelt the population number would have been 3,609 smelt. They had no recaptures of trout, but one trout had a damaged fin, which they guess might have been a mark, so calculated that there were 303 trout in the lake. However, they later report moving 1400 fish to nearby lakes, ‘primarily trout plus a small number of smelt’ (Vale newsletter 2012). Also trout were killed when they drained the lake. Moving fish to lakes with different genetic stocks has been shown for decades to be damaging to receiving stocks, because of reduction in fitness of the receiving stocks if they interbreed , so this exercise was worse than a waste of time and money.
Dams have created a new reservoir of 74 ha for permanent toxic waste, including small adjacent lakes, destroying 45 ha of natural waters. For compensation of fish habitat the proponent calculated for the three species combined that there was fish habitat loss of 18.11 ha. The main compensation for loss of Sandy Pond was opening a partial barrier of vegetation at the outlet of Forest Pond on Salmon Cove River, Conception Bay. This purported to compensate for 12.12 ha of the lost 18.11 ha of fish habitats in Sandy Pond. In fact no new habitat would be created, and no studies showed that Forest Pond was not already at carrying capacity. Further questionable compensation is 7.4 ha by enlarging some small bog ponds, and 0.2 ha with Salmon Cove River enhancement. In fact their estimate of lost habitat in Sandy Pond was in error. Using the same variables for ‘Habitat Equivalent Units’ (Bradbury et al. 2001), I calculated habitat losses of 25.5 ha for brook trout (67.5% of the area of the lake), 34.8 ha for smelt (91,8% the area of the lake), and 15.7 ha (41.6% the area of the lake) for eel.
A not inconsequential detail is that the status of American eel under the Species at Risk Act is ‘threatened’. Under the Act (#32, [(1)] no person is allowed to kill, harm or harass an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species, nor (# 33.) is it allowed to damage or destroy the habitat of such species. This detail was ignored.
It appears to me that plans had already been made to use Sandy Pond as a toxic waste site, and that the EIS and compensation were bureaucratic rationalizations to facilitate using a natural lake rather than building a more expensive retaining reservoir. In consequence, the Sandy Pond Alliance took the federal government to court in 2010, on the grounds that the Fisheries Act forbade the destruction of fish stocks and their habitats. Unfortunately for all of us, the judge, Justice Elizabeth Heneghan, on October 31, 2013 gave her decision that the applicant was mistaken when asserting that conservation is the paramount purpose of the Fisheries Act.
Under fairly recent changes to the Metal Mining Effluent Regulations and the Fisheries Act it is now legal, by decision of the Minister of the Environment, at their political whim, to allow companies to discharge toxic wastes into pristine waters, if that is the cheaper alternative. It is now regulatory policy for economics to override environmental protection. Compensation must be made, but as indicated above this may be only a public relations exercise. The new regulations have the potential to destroy numerous valuable fish stocks throughout Canada (Hutchings and Post 2013).
Since Sandy Pond and another lake, in central Newfoundland (Trout Pond, operated for eight years, 2007 – 2015) have been given as subsidies to mining companies, 23 other lakes are under threat for destruction (Nelson 2013).
The Sandy Pond Alliance is working to restore protection of such lakes, as was available under the prior Fisheries Act, by informing citizens of this unnecessary destruction of our natural heritage. And, following the advice of Justice Heneghan, that “the will of the people with respect to legislation can be expressed at the ballot box”, we will continue to rally to bring pressure on our politicians to stop this destruction.
Bradbury, C., A.S. Power and M.M. Roberge. 2001. Standard methods guide for the classification and quantification of lacustrine habitat in Newfoundland and Labrador. Fisheries and Oceans, St. John’s, Newfoundland. MS 60 p.
Hutchings, J.A. and J.R. Post. 2013. Gutting Canada’s Fisheries Act: no fishery, no fish habitat protection. Fisheries 38: 497 – 501.
Nelson, J. 2013. Loophole lets healthy lakes be converted into waste dumps. CCPA Monitor 20 (7): 18 – 20.