The BC Supreme Court has rejected a First Nation’s legal challenge against the government’s approval for Imperial Metals to raise the Mount Polley Mine tailings dam by four metres, a ruling delivered during the anniversary week of the catastrophic 2014 breach.
The 2014 disaster — one of BC’s largest environmental disasters from mining — released over 24 million cubic metres of toxic mine waste into Xatśūll territory in the Cariboo region near Williams Lake. The community continues to face lasting impacts on their rights, culture, environment and way of life more than a decade later.
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Justice Michael Tammen ruled that consultation with the Xatśūll Nation was legally sufficient and described the proposed four-metre raise as “comparatively modest,” unlikely to increase the mine’s overall footprint or environmental impact. He said the court’s focus was on the current project, not the earlier disaster, and described the risk of another dam failure as “remote.”
“This is the same unstable soil condition that caused the catastrophic failure more than a decade ago,” said Nikki Skuce, director of the Northern Confluence and co-chair of the BC Mining Law Reform Network, a coalition advocating for stronger mining laws and environmental protections. “Raising the dam height again on this foundation without a thorough, modern environmental assessment is deeply troubling.”
The Xatśūll First Nation said it was deeply disappointed and will review the decision and consider next steps.
Indigenous leaders condemned the decision.
Stewart Phillip, grand chief of the Union of BC Indian Chiefs, said the ruling “is a profound blow to Indigenous rights and environmental justice.”
The decision “sadly advances a ‘business as usual’ approach to consultation, an approach that BC First Nations have long asserted that it is fundamentally broken and does not uphold our inherent and constitutionally protected title and rights,” he said.
UBCIC called on the province to explain what meaningful consultation and consent look like for Indigenous peoples under the Declaration on the Rights of Indigenous Peoples Act, especially after the recent passage of Bills 14 and 15.
“Bills 14 and 15 send exactly the wrong message to those living downstream of risky mines: it’s about making it easier for big projects to get permits, not about making Indigenous consent real or prioritizing environmental protection,” Skuce said.
Bills 14 and 15, passed earlier this year, give the provincial cabinet broad authority to fast-track renewable energy and infrastructure projects by streamlining regulatory approvals, exempting certain projects from environmental assessment.
Skuce said that the Mount Polley dam expansion “represents all the worst parts of BC’s current mining rules,” from loopholes that let companies avoid new environmental assessments to a system that overlooks the combined effects of small project expansions and shuts out the affected communities from decisions about their lands.
A separate judicial review remains active regarding proposals for further dam raises and whether any would require environmental assessment.
Sonal Gupta / Local Journalism Initiative / Canada’s National Observer
