By Chad Fraser - Exclusive to Resource Investing News

Tuesday March 19, 2013, 4:30am PDT

Environmentalists, mining giant Vale (NYSE:VALE) and Canada’s federal government are awaiting a verdict from a Newfoundland judge that could affect mining operations across the country.

Lawyers for the three groups squared off in court in late February over the multinational mining giant’s plan to use Sandy Pond, near Long Harbour, Newfoundland, as a tailings impoundment area (TIA) for waste from its adjacent nickel-processing facility. Vale has been building the $2.8-billion Long Harbour plant, which will process ore from the huge Voisey’s Bay deposit, since April 2009 and plans to commence operations later this year. The facility will employ roughly 475 people, according to Vale’s website.

A group called the Sandy Pond Alliance to Protect Canadian Waters launched the court challenge in 2010, but it has faced delays related to questions regarding whether Vale, as well as the Mining Association of Canada and the Mining Association of BC, should be granted intervener status in the case. They have now been granted that status, albeit on a limited basis.

Ken Kavanagh, former chair of the Alliance, feels a decision is likely still months away. “It took five to six months for the decision over intervener status to be made because there were reams of material from Vale, the government and the Mining Association,” he said in a March 18 phone interview. “I think we could be in for another four to six months again, but that’s just my personal opinion.”

“I want to make it clear that we are not against development and we’re not against jobs in Long Harbour,” he added. “We are simply against this aspect of dumping mining waste into a pristine pond.”

Environmental group aims to close “loophole”

At issue is Schedule 2, which was added to the country’s Metal Mining Effluent Regulations (MMER) by Prime Minister Jean Chretien’s Liberal government in 2002. The regulations were made under the country’s Fisheries Act.

On the surface, Schedule 2, which is posted on the government’s website, is simply a list of water bodies that have been used as TIAs. That is how the Council of Canadians, a social justice advocacy group, claims the government defines the schedule.

“Schedule 2 was first introduced by the Liberal government in 2002,” states the council’s website. “At the time, environmental groups were told it was merely an administrative detail aimed at accounting for the lakes and rivers that had historically been used for mining waste. The Liberal government gave assurances that Schedule 2 would not be used for healthy bodies of water.”

However, the council claims that the Conservative government of Stephen Harper, which came to power in 2006, is now using Schedule 2 as a loophole to allow mining companies to circumvent the Fisheries Act.

“Then in 2006, under the Harper government, two lakes in Newfoundland and Labrador were approved for destruction using the MMER loophole and a precedent was set that would put the future of all lakes and rivers throughout the country in jeopardy,” the council’s website states. Sandy Pond was added to Schedule 2 by an amendment published by the government in the June 10, 2009 Canada Gazette. Once bodies of water are added to Schedule 2, they lose all environmental protection, the council’s website explains.

The federal government has now reclassified 14 water bodies across the country as TIAs, and another 12 have been proposed, according to a March 13 HazMat Management article.

From Fish Lake to Sandy Pond

The case has similarities to an earlier controversy surrounding Taseko Mines’ (TSX:TKO) plan to drain Fish Lake in British Columbia as part of a plan to store waste rock from its New Prosperitycopper-gold project. The province initially approved Taseko’s plan, but it was rejected after a federal environmental review in 2010. Taseko has since redesigned the project to preserve Fish Lake. A federal review panel is currently examining the revised proposal. Fish Lake was never added to Schedule 2.

Sandy Pond differs from Fish Lake in that Vale’s project has passed the provincial and federal environmental assessment processes. However, both proposals have faced significant resistance from environmental and citizens’ groups and, in the case of Fish Lake, nearby First Nations.

The Long Harbour plant will produce 375,000 metric tons per year of “combined leach andiron/gypsum residue, requiring a total storage capacity of 5.8 million m³ with a design for more than that amount,” according to Vale’s 2006 project description and registration document. The preferred storage site is Sandy Pond, “where two containment dams would be required at the northeast end of the pond.”

The company has finished constructing the dams and has also removed 1,400 fish from Sandy Pond, relocating them to two other nearby ponds, according to The Telegram. “Vale has already done a lot of damage,” said Kavanagh. “They’ve already dammed up the pond, removed the fish and I believe they’ve already started dumping treated sewage into it. Sandy Pond is likely damaged beyond repair.”

Case has far-reaching implications

The Alliance charges that Schedule 2 is incompatible with the spirit of the Fisheries Act and should be removed. “This gives [Ottawa] authority not to just regulate fisheries, but wipe them out. That’s a big departure from the theme of the Act, which is conservation,” Alliance lawyer Owen Myers told Hazmat Management. Myers also contends that the federal government cannot authorize the destruction of fish habitats without parliamentary approval.

Ottawa’s position is that because the MMER forces mining companies to create new fish habitats when they destroy old ones, the Cabinet’s actions, including adding water bodies to Schedule 2, are compliant with the Fisheries Act.

The amendment published in the Canada Gazette highlights this point. “There will be a loss of fish habitat in Sandy Pond equivalent to 18.1 hectares (ha) as a result of the Amendments,” the executive summary reads. “However, Vale Inco NL is required, under section 27.1 of the MMER, to implement a fish habitat compensation plan to offset this loss. It is expected that there will be a net gain equivalent to approximately two ha of fish habitat as a result of the implementation of the fish habitat compensation plan.”

Kavanagh’s desired outcome is a decision that Schedule 2 is ultra vires (or outside the scope) of the act, with retroactive effect. That likely wouldn’t change the situation at Sandy Pond, but it would make it more difficult to designate water bodies in the future. But even that ruling likely wouldn’t settle the matter, in his view. “I suspect that industry and government would appeal, and if we won again, industry would lobby government to change the act and put in what they can’t do under an illegal resolution,” he said.

In the end, Kavanagh would like to see a more collaborative approach between the mining industry and citizens’ groups on environmental matters like the storage of mining waste. “That way, we can make sure we’re approaching these big mining projects in a more sustainable way,” he said.

The Independent Newspaper “Sandy Pond Alliance Declares Small Victory”

http://theindependent.ca/2011/02/28/sandy-pond-alliance-declares-small-victory/

NTV News Coverage of the Sandy Pond Court Case and Rally

http://ntv.ca/sandy-pond-case-challenges-federal-cabinet-powers/

Ken Kavanagh speaks to CBCs Central Morning Show

http://www.cbc.ca/player/Radio/Local+Shows/Newfoundland/Central+Morning/ID/2338943798

The Telegram -Ashley Fitzgerald

SandyPondFish- WhereAre They Now

Sandy Pond Alliance Calls on Government to Remediate Abandoned Mine Tailings Ponds

            The Sandy Pond Alliance, a national coalition of environmental and citizens’ organizations, is calling on the Government of Newfoundland and Labrador to allot additional funds to prevent further  spills of poisonous toxic materials from abandoned mines and tailings ponds into Newfoundland and Labrador rivers, streams and waterways.  In a 2010 report, the Provincial Auditor General identified over 600 abandoned mine sites and tailings ponds indicating their need for assessment and remediation.

Last year the Newfoundland and Labrador Government budgeted approximately $750,000 for remediation of sites in Newfoundland and Labrador. That amount was assigned to the remediation of the Gullbridge mine tailings pond for cleanup.  That process had barely started when the tailings pond dam gave way and spilled into a nearby bog located upstream from the community of South Brook in Green Bay.  While initial water quality tests indicate water supplies to be safe, the snow melt and spring runoff could influence water safety conditions.  The Sandy Pond Alliance hopes this will not be the case but is concerned about the environmental circumstances surrounding the Gullbridge mine tailings pond and other tailings ponds throughout the province which may have weakened over the past few decades.

The Sandy Pond Alliance calls on the Government of Newfoundland and Labrador to establish a well funded remediation program to identify and prevent runoff from old tailings ponds and abandoned mining sites throughout the province. “We are concerned about the potential for polluting the drinking water of unsuspecting and vulnerable communities located downstream from these locations ” said Fred Winsor, a Sandy Pond Alliance board member. “ Many of these toxic tailings ponds are old and local residents may be unaware of their existence or what substances, if any, could leach into their water supplies.”

The Sandy Pond Alliance is currently preparing a presentation for the Government of Newfoundland and Labrador’s pre-Budget consultations.  The Sandy Pond Alliance encourages communities around the province to find out if there are abandoned or neglected mining sites or tailings ponds in their area and to see if they are spilling or leaching potentially harmful substances into the natural environment.

Contact Information:

Fred Winsor

Sandy Pond Alliance

St. John’s, Newfoundland

709-738-3781

Click here to read the articles .

No Habitat, No Fish: Harper Plans for Elimination of Wildlife Protection

Destroying a pond is a bad choice
by Bill Montevecchi

In his letter to the editor (“Other options are bigger risks,” June 30), the executive director of the Mining Industry of Newfoundland and Labrador, Gerry O’Connell, continues his long-standing campaign that denigrates the importance of environmental protection for our province.

He contends that it is environmentally preferable to destroy Sandy Pond, an ancient lake and its magnificent trout and aquatic ecosystem, rather than requiring the developer to seek alternative means of taking responsibility for the pollution that will be generated.
He claims the decision to destroy Sandy Pond is based on the “most rigorous research and assessment into any and all residue storage facilities.”

This is simply unfounded.

Would not pass

The process of site selection and the biological compensation plan for the destruction of Sandy Pond would not pass a test of rigorous independent scientific scrutiny.

Developmental decisions have to be based on comprehensive environmental footing rather than economic expediency and profit margins.

Alternatives can be found.

Permission to destroy

With federal and provincial government sanction under the Schedule 2 amendment in the Fisheries Act, mining corporations are allowed to destroy natural waterways, such as Sandy Pond as toxic pollution dumps.

This is indeed a giveaway of immense proportion. To attempt to justify destruction of the Earth’s life support systems is simply a mask.

Mr. O’Connell implies that environmental destruction is now a key component of resource extraction development.

Start again

If this is so, then it is time to go back to drawing board and to rethink and reconsider everything.

Yet, contrary to Mr. O’Connell’s contention, we do not have to be forced into choosing between destructive environmental alternatives or the lesser of evils.

We can instead make the right choices about environmental protection.

Such an approach requires more than a cavalier dismissal of environmental destruction.

Bill Montevecchi is a research professor at Memorial University

______________________________________________________________
Price was the deciding factor    Published on July 7, 2011
Topics :    Sandy Pond , Long Harbour , Canada

Gerry O’Connell, in a recent letter to the editor (“Other options are bigger risks,” June 30), states that using Sandy Pond to hold mining waste has nothing to do with cost and everything to do with safety and the environmental protection.

He further states that the project was investigated with scrutiny by all stakeholders.

I take exception to this and I find his assertions purely based on economics.

The location at Long Harbour was, I suggest, based on the fact that Sandy Pond is out of sight and out of mind.

It could be easily kept out of the public eye and, with a couple of dams, could create the perfect tailings pond. The environmental assessment was merely a formality.

If a third party like Memorial University were asked to do an environmental assessment, the results would be much different than a few days observation.

The destruction of Sandy Pond and subsequent possible environmental fallout to the watershed is an environmental catastrophe for this pristine area, surpassed in Canada only by the tar sands.

Anyone who has fished this pond can tell you that there was something different about this pond. Why were the fish so fat? Why was there a strange looking char-like fish that was never identified? Why was there such an abundance of rainbow smelt? Why was there such a diversity of biotic life unlike other areas?

The answer is in the ecological and biological evolution of a water system that was isolated since the last ice age.

One solution to another tailings site option which has not been identified is using a naturally occurring gorge.

One such feature is located adjacent to Sandy Pond, to the north of the pond. This valley has two steep walls of rock on either side running east to west and a pond in the valley which has a small population of native brook trout. It is about 500 metres wide and a half a kilometer long. All that needs to be done is dam off either end and you have a secure site which will not be a significant environmental concern.

This might not be such a bad idea if it were looked at.

This development is a needed economic investment for not only Long Harbour but also for the province. No one is advocating that this project shouldn’t go ahead. However, no one can deny that we must proceed with extreme caution.

The residents of Long Harbour cannot forget the red tide from the phosphorous fallout and the deformed wildlife found in this area for years after ERCO shut operations. Let us look at all options and think about what our children will inherit.

Boyd Winsor
Whitbourne

             From June 3-5, 2011, I attended the Waterlution workshop entitled: “Striking a Balance: Growth and Watershed Protection on the Avalon Peninsula”. This program was designed for up and coming leaders with a focus on effectively managing economic growth and water resource protection through developing informed individuals with a commitment to maintaining healthy watersheds. Activities included experiential field tours, interactive dialogue sessions, mentoring and visioning exercises built on developing sustainable management solutions for water resources in the shadow of economic growth.

Newfoundland and Labrador is set to lead Canada in economic growth this year, thus, the Northeast Avalon Region was an excellent location to host such an event. New wealth coming into the province allows communities and industries to prosper, however, water resources become stressed, which in turn jeopardizes the livelihoods’ and well being of those same individuals.

Throughout the weekend, there were guest presentations by individuals who are currently involved in watershed conservation and/or management. Jennifer Bonnell, a PhD student in the Environmental Science program at Memorial University of Newfoundland was formerly employed by the Department of Environment and Conservation to monitor water quality throughout Newfoundland. The focus of her presentation was the difficulties behind trying to communicate scientific information to the public in a manner that is understandable and relatable.

Christa Ramsay of the Department of Environment and Conservation led a discussion regarding the definition of a watershed used for potable water and the regulations behind managing that resource.

Hope Bennett, a student in the Master of Environmental Science program at Memorial University of Newfoundland and a member of the Kelligrews Ecological Enhancement Program. Hope guided a tour along Incinerator Road, Foxtrap, Newfoundland to explain the residual effects of poor waste management practices by showing the group a retired landfill that was in operation before proper regulations were in place. Due to poor construction and decommissioning, this landfill has leached toxic waste and heavy metals into the surrounding watershed, and through erosion and mass wasting, garbage is continually being exposed.

Don Quigley and Dan Ficken of the Northeast Avalon Atlantic Coastal Action Program made clear the ineffectiveness of communicating regulation between City Council and developers with respect to vegetation buffer zones surrounding water bodies and clear cutting new construction sites. The duo organized a field trip through Paradise, Newfoundland to display the encroachment of development into the buffer zone and the complete devastation to any habitat that is slated for development. The contradiction here is that although it is illegal to clear to the waterline, developers impinge upon the buffer zone for expediency, and over time, homeowners who wish to have easier access to, or a view of the water, they will begin to remove vegetation down to the waterline.

Justin Dearing, Conference Coordinator for the Marine Institute Ocean Net program, gave an energetic presentation that reminded all of us how easy it is to make simple choices in life in order to reduce our impact on the environment.

Finally, of particular interest to the Sandy Pond Alliance (SPA), Bob Carter, Manager of Corporate Affairs for Vale, Newfoundland and Labrador, and Brenda Brown, representative from Vale’s Sustainability Group of Newfoundland and Labrador, were the weekend’s final guest presenters. These individuals were invited to present on the fish habitat compensation plans that have been “successfully” implemented by Vale throughout the province. I put successfully in quotations for two reasons: 1) There was no decisive data from long-term monitoring presented to prove that the compensation plans were in fact successful; 2) It has been shown that fish habitat compensation plans (implementation – long-term monitoring) throughout Canada have been historically inadequate ^{1, 2, 3, 4}. Based on the content of the Vale presentation and my involvement with the SPA, the organizers of the workshop were more than willing to allow me the opportunity to present the other side of the story. Thus, the evening before the Vale representatives visited, I was able to explain the regulations behind Schedule 2, the issue with Sandy Pond and how Canadian waters are threatened, and the inadequacies behind fish habitat compensation in general, and more specifically, the plan for Sandy Pond.

The following day, Mr. Carter began the introduction by acknowledging the fact that the issue of Sandy Pond being planned as a toxic tailings pond by Vale is currently under intense scrutiny, and therefore, they did not wish to begin a debate on that matter. The statement was accepted because the purpose of the weekend was to ask questions to clear any misunderstandings or to fill in the blanks rather than place blame or accusations. The presentation consisted mostly of before and after photographs of “restored” fish habitat from past or ongoing compensation projects by Vale. I congratulate both Mr. Carter and Ms. Brown for their efforts in attending such an event and for staying much longer than intended, however, following the departure of those two individuals, there was consensus in a group discussion that not one person bought into Vale’s sustainable camouflage. This majority agreement was in part due to Mr. Carter and Ms. Brown’s lack of comprehension concerning the science behind Vale’s projects. For example, when asked how fish habitat of a given water body is quantified, Ms. Brown could not answer, and when Mr. Carter was asked what quantity and type of heavy metals were being deposited in the marine environment of Long Harbour, he could not answer. The point I am trying to make is that they are promoting environmentally damaging actions that they do not fully understand or appreciate.

A major aspect of environmental issues surrounding water protection and conservation is government regulation. In essence, industry only has to do what the Canadian government requires of them. Therefore, if the legislation is inadequate, then the operations of an industry will also be inadequate. However, that is not to say that Vale is innocent in this because they do not want the regulations to change. These regulations are saving them a lot of time and money, and to preserve that benefit, Vale is lobbying government officials and littering the media with propaganda. This Brazilian corporation grossed 13 billion dollars in 2010, so they certainly have the means to use the most updated and advanced technology to best preserve the environment, they just choose not to.

Overall, the weekend was a success leaving all participants better informed on local and provincial water resource issues, and also, on how to begin solving those issues. All guest mentors were excellent contributors to the weekend and provided relevant water-related issues that sparked engaging discussions and critical thinking sessions.

References

1) Harper and Quigley 2005. No Net Loss of Fish Habitat: A Review and Analysis of Habitat Compensation in Canada. Environmental Management, 36, 343-355.

2) Quigley, J.T., and Harper, D.J., 2006. Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net Loss. Environmental Management, 37, 351-366.

3) Packman et al. 2006. Review of Approaches for Estimating Changes in Productive Capacity from Whole-lake / Stream Destruction and Related Compensation Projects. Ottawa: Fisheries and Oceans Canada.

4) Gibson 2010. The Inequity of Compensation for Destroyed Lakes. Osprey 41, 29-38.