Factual Record

BC Mining Submission

(SEM-98-004)

Prepared in Accordance with

Article 15 of the North American Agreement

on Environmental Cooperation

Table of Contents

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Summary of the Submission . . . . . . . . . . . . . . . . . . . . 12

3. Summary of Canada’s Response. . . . . . . . . . . . . . . . . . 14

4. Scope of the Factual Record . . . . . . . . . . . . . . . . . . . . 17

5. Summary of Other Relevant Factual Information and Facts

Presented by the Secretariat with Respect to Matters Raised

in Council Resolution 01-11 . . . . . . . . . . . . . . . . . . . . 19

5.1 Information Gathering Process . . . . . . . . . . . . . . . . 19

5.2 Meaning and Scope of Fisheries Act s. 36(3) . . . . . . . . . 23

5.2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . 23

5.2.2 S. 36(3) and Mining. . . . . . . . . . . . . . . . . . . 24

5.2.3 Responses to Alleged Violations of s. 36(3)

Provided for under the Fisheries Act . . . . . . . . . 26

5.2.3.1 Information Requests and Orders from

the Minister . . . . . . . . . . . . . . . . . . 26

5.2.3.2 Prosecutions . . . . . . . . . . . . . . . . . . 27

5.2.3.3 Defenses to Charges under s. 36(3) . . . . . 29

5.2.3.3.1 The Defense of Due Diligence . 30

5.2.3.3.2 Defenses Based on Actions of

the Regulator . . . . . . . . . . . 34

5.2.3.4 Court Orders Upon Conviction . . . . . . . 36

3
5.2.3.5 Injunctions. . . . . . . . . . . . . . . . . . . 37

5.2.3.6 Civil Suits for the Recovery of

Remediation Costs . . . . . . . . . . . . . . 37

5.3 Policies Regarding Compliance Promotion and

Enforcement of s. 36(3) of the Fisheries Act at

Abandoned Mines . . . . . . . . . . . . . . . . . . . . . . . 37

5.3.1 The Fisheries Act Habitat Protection and

Pollution Prevention Provisions Compliance

and Enforcement Policy . . . . . . . . . . . . . . . . 39

5.3.2 The Decision to Prosecute . . . . . . . . . . . . . . . 43

5.3.3 Streamlining Environmental Protection . . . . . . . 46

5.3.3.1 Federal-Provincial Harmonization . . . . . 47

5.3.3.2 Environmental Harmonization

and Mining . . . . . . . . . . . . . . . . . . 57

5.3.4 Compliance Promotion at Contaminated

Sites including Abandoned Mines . . . . . . . . . . 61

5.3.4.1 The National Contaminated Sites

Remediation Program . . . . . . . . . . . . 61

5.3.4.2 Initiatives in Relation to Abandoned

Mines. . . . . . . . . . . . . . . . . . . . . . 65

5.4 Alleged Violations of s. 36(3) at the Britannia Mine . . . . 75

5.5 Canada’s Actions in Regard to Alleged Violations of

s. 36(3) of the Fisheries Act at the Britannia Mine . . . . . . 81

5.5.1 1974-1994 / Relevant Historical Information . . . . 84

5.5.2 1994-1996 / Orphan Sites Funding and the

Search for a Buyer . . . . . . . . . . . . . . . . . . . 96

5.5.3 1997-2001 / Scientific Advances, Remediation

Proposals and Potentially Responsible Parties . . 104

5.6 Whether Canada is Failing to Effectively Enforce

s. 36(3) of the Fisheries Act in the Context of the

Britannia Mine. . . . . . . . . . . . . . . . . . . . . . . . . 124

4 FACTUAL RECORD: BC MINING SUBMISSION
5.6.1 Current Status . . . . . . . . . . . . . . . . . . . . . 124

5.6.2 Whether Current Initiatives Will Stop the Deposit

of Deleterious Substances at the Britannia Mine

in the Shortest Possible Time and in the Long

Term . . . . . . . . . . . . . . . . . . . . . . . . . . 126

6. Closing Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Figures

Figure 1 Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Figure 2 Aerial photograph of the Britannia Mine and

Howe Sound showing key locations. . . . . . . . . . 76

Figure 3 Graphic Representation of Pollution Problem at

the Britannia Mine . . . . . . . . . . . . . . . . . . . . 77

Appendices

Appendix 1 Council Resolution 01-11, dated 16 November

2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Appendix 2 Overall Plan to Develop a Factual Record,

dated 14 December 2001 . . . . . . . . . . . . . . . . 139

Appendix 3 Comments of Canada and the United States on the

Overall Plan to Develop a Factual Record, dated 14

and 23 January 2002 . . . . . . . . . . . . . . . . . . 147

Appendix 4 Request for Information, dated January 2002 . . . . 155

Appendix 5 Request for Additional Information,

dated 8 May 2002 . . . . . . . . . . . . . . . . . . . . 163

Appendix 6 Section 42 of the Fisheries Act, R.S.C. 1985, c. F-14. . 171

Appendix 7 List of Information Gathered by the Secretariat. . . 177

Appendix 8 Timeline . . . . . . . . . . . . . . . . . . . . . . . . . 199

Appendix 9 Acronyms and Defined Terms . . . . . . . . . . . . 205

TABLE OF CONTENTS 5
Attachments

Attachment 1 Council Resolution 03-14 . . . . . . . . . . . . . . . 211

Attachment 2 Comments of Canada . . . . . . . . . . . . . . . . . 215

Attachment 3 Comments of the United States of America . . . . . 231

6 FACTUAL RECORD: BC MINING SUBMISSION
1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (“NAAEC”) establish a process allowing residents of

Canada, Mexico and the US to file submissions alleging that a Party to

the NAAEC (Canada, Mexico or the United States) is failing to effectively enforce its environmental law. Under the NAAEC, this process

can lead to the publication of a factual record. The Secretariat (“Secretariat”) of the North American Commission for Environmental Cooperation (“CEC”) administers the NAAEC citizen submissions process.

In June 1998, Sierra Legal Defence Fund, on behalf of Sierra Club of

British Columbia, Environmental Mining Council of British Columbia,

and Taku Wilderness Association (the “Submitters”), filed a submission

with the Secretariat alleging the systemic failure of the Government of

Canada to enforce s. 36(3) of the Fisheries Act (“s. 36(3)”) against mining

operations in British Columbia, in particular as regards violations of s.

36(3) caused by acid rock drainage (“ARD”). S. 36(3) prohibits the

deposit of deleterious substances into waters frequented by fish, unless

authorized by regulation. In May 2001, the Secretariat notified the Council that the submission warranted preparation of a factual record and

recommended preparing a factual record regarding Canada’s actions

to enforce and promote compliance with s. 36(3) at forty-two known

or potentially acid-generating mines referenced in the submission. In

November 2001, the CEC Council instructed the Secretariat “to prepare

a factual record for the assertion that Canada is failing to effectively

enforce s. 36(3) with respect to the Britannia Mine,” one of the mines

referenced in the submission.

The Britannia Mine is located on the eastern shore of Howe Sound

in British Columbia, Canada, on the road from Vancouver to Whistler.

The mine was in operation from 1904-1974, producing millions of tons of

copper and zinc that was concentrated on-site and shipped to the US for

further processing. The mine is located inside Mount Sheer, which rises

to a height of 4,600 feet over several kilometers from the shore. Inside

Mount Sheer, 210 kilometers of abandoned mine workings act as conduits for rain water and snowmelt that enter open pits at the summit and

flush out of a portal located at the base of the mountain. The acidic,

7
metal-laden effluent, which is acutely lethal to fish, is channeled to a submerged outfall and discharged, untreated, into the fish-bearing waters

of Howe Sound. An Environment Canada employee has called the Britannia Mine the single-worst point source of metals pollution in North

America.

Regulations adopted in 1977, and updated in 2002, under s. 36(4) of

the Fisheries Act to authorize the discharge of mine effluent to water frequented by fish do not apply at mines such as Britannia that closed down

before June 2002. At these mines, the s. 36(3) general prohibition on

depositing deleterious substances into waters frequented by fish continues to apply. The courts have held that ARD (see above) is a deleterious

substance for the purpose of s. 36(3). Under s. 36(3), no proof is required

that a deleterious substance actually caused harm to fish. All that is

required to establish a violation of s. 36(3) is proof that the ARD is

acutely lethal to fish and is being deposited into water frequented by

fish. Experts present courts with facts that establish a violation of s. 36(3),

and courts decide whether, in regard to those facts and other considerations, a person has committed a contravention punishable as an offence

under the Fisheries Act.

Under the Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy (the “Compliance

and Enforcement Policy”) adopted by Fisheries and Oceans Canada and

Environment Canada in 2001, “[e]nforcement is achieved through the

exercise or application of powers granted under legislation.” The Fisheries Act provides a range of potential enforcement responses to alleged

violations of s. 36(3), including information requests or orders by the

Minister of Fisheries and Oceans; prosecutions; injunctions; court orders

upon conviction; and civil suits for the recovery of federal government

remediation costs. Despite the existence of facts consistent with

ongoing violations of s. 36(3) at the Britannia Mine, Canada has taken no

enforcement action under the Fisheries Act. Environment Canada has no

enforcement file regarding the Britannia Mine, but has kept numerous

compliance promotion-related files in respect of the site.

The Compliance and Enforcement Policy states that enforcement

measures are directed towards ensuring that violators comply with the

Fisheries Act within the shortest possible time and that violations are not

repeated. Under the Compliance and Enforcement Policy, to identify

an appropriate action—which may or may not include enforcement

action—to be taken in response to an alleged violation, Environment

Canada and Fisheries and Oceans Canada consider (i) the nature of the

alleged violation; (ii) “the effectiveness of a proposed action in achieving

8 FACTUAL RECORD: BC MINING SUBMISSION
the desired result, with the alleged violator, of compliance in the shortest

possible time with no further occurrence of violations;” and (iii) “how

similar situations in Canada are being or have been handled.”

At Britannia, consistent with Department of Justice policy and the

Compliance and Enforcement Policy, Environment Canada and the

province coordinated their compliance promotion and enforcement

efforts.

Regarding compliance promotion, federal Department of Justice

policy allows prosecutors to consider whether a compliance program

exists that might better achieve the purpose of a statute than would

prosecution. A federal/provincial program for the remediation of

orphaned/abandoned contaminated sites in Canada ended in 1995.

Since then, Environment Canada, Fisheries and Oceans Canada and

provincial officials have cooperated on an ad hoc basis to obtain funding

to assess and find solutions for the effluent problem at the Britannia

Mine. During this time, industry and governments (federal/provincial/territorial) in Canada have repeatedly identified the need for a systematic approach to addressing non-compliance with environmental

laws such as s. 36(3) at abandoned mines such as Britannia.

Regarding enforcement, Environment Canada has actively supported the province’s enforcement of the BC Waste Management Act contaminated sites provisions at Britannia since 1997, when that Act was

amended to allow the province to hold past owners and operators retroactively liable for pollution at the mine. Environment Canada’s actions

have been consistent with the Compliance and Enforcement Policy,

which allows Environment Canada to consider enforcement actions of

other levels of government in determining the appropriate response to

an alleged violation of the Fisheries Act. Environment Canada’s actions

have also been consistent with, and illustrate the practical application of,

ongoing federal/provincial environmental harmonization initiatives

that seek to streamline the content and administration of environmental

laws in Canada, including laws that regulate environmental impacts

from mining, with a view to eliminating duplication and overlap.

Environment Canada asserts that at Britannia, prosecution under

s. 36(3) is not and has not been a viable option. Environment Canada

asserts that in the past, the mine’s long history of operation and changes

in owners and operators made it difficult for Environment Canada

investigators to obtain the evidence required to attribute responsibility

for environmental impacts from the mine to a particular past owner or

operator. Further, the agency adds that the limitation period for proseEXECUTIVE SUMMARY 9
cuting such persons has now expired and that the present owner of the

mine is insolvent and therefore lacks the means to implement any

court-ordered remediation. In light of these considerations, Environment Canada explains that it and Fisheries and Oceans Canada have

decided to engage in compliance promotion at Britannia and to lend

technical assistance to the province in support of enforcement actions by

the province under provincial contaminated sites legislation.

Copper Beach Estates Ltd. (“CBE”) purchased the Britannia Mine

from Anaconda Canada Exploration Ltd. (“Anaconda”) in 1979. BC

Environment issued effluent remediation orders against CBE under the

BC Pollution Control Act and its successor, the Waste Management Act in

1981, 1993 and 1999. CBE has not complied with these remediation

orders. Over the years, CBE sold off millions of dollars in development

property at Britannia without using the profits to pay for site remediation, despite an undertaking in its sale contract with Anaconda that it

would comply with all future requirements of environmental authorities at the site. CBE has been insolvent since 1994 and there is a court

order for sale of the Britannia lands. Since 1997, CBE has advanced—and

received considerable federal and provincial government technical

review of—several “reclamation/remediation” proposals aimed at

financing site remediation through redevelopment of the Britannia site,

none of which have materialized. In 2001, CBE repudiated a memorandum of agreement signed with the province under which CBE had

agreed to fund construction and operation of an effluent treatment plant

at the mine using revenue from proposed real estate development projects at the site.

To promote compliance with s. 36(3) at the Britannia Mine, in

1994-95, Environment Canada and BC Environment attempted to obtain

financing for research into environmental impacts from, and treatment

methods for, Britannia effluent through the National Contaminated

Sites Remediation Program. The federal government and the province

agreed to commit up to $2M each for studies and site remediation, but

delays in obtaining provincial funds caused federal funding to lapse.

Beginning in 1995, Environment Canada and BC Environment jointly

funded $130K for effluent monitoring at the site. In 1998, consultants

working for Environment Canada and BC Environment identified the

high-density sludge (“HDS”) process as being the best technology to

treat Britannia effluent. Between 1997 and 2000, Fisheries and Oceans

Canada carried out a major study of impacts of Britannia effluent on the

receiving environment, to generate momentum for site remediation. The

results showed negative impacts on fish and fish habitat over a distance

of several kilometers in Howe Sound.

10 FACTUAL RECORD: BC MINING SUBMISSION
To enforce provincial environmental standards and enable

remediation of the Britannia mine Cite, in 1998, under the Waste Management Act, BC Environment named certain past owners and operators of

the Britannia Mine as “Potentially Responsible Persons” (“PRPs”) in

connection with pollution from the mine. Submissions filed with BC

Environment by these “private PRPs” led to BC Environment naming

other PRPs. The Provincial Crown and the Federal Crown were named

as PRPs on the basis of past involvement with the site. The submissions

process did not result in any PRPs being named as “responsible persons,” a designation that would have made them subject to the 1999

remediation order issued by BC Environment against CBE. Rather,

the Provincial Crown signed a settlement agreement (the “Settlement

Agreement”) with the private PRPs in 2001. Under the Settlement

Agreement, the private PRPs contributed $30M toward a comprehensive, provincial site investigation and remediation program at Britannia

in exchange for a release and indemnity in connection with all Britannia

environmental liabilities. The Federal Crown participated in negotiating

the Settlement Agreement but did not sign it. During these negotiations,

Environment Canada agreed to conduct offshore sediment investigations at Britannia and provide technical reviews of remediation works

including a waste water treatment plant. As a result of amendments to

the Waste Management Act in 2002, the provincial regulator is now likely

barred from holding the private PRPs responsible for any shortfall in

remediation or effluent treatment costs at Britannia because the indemnity under the Settlement Agreement removes them from the category

of “potentially responsible persons” under the Act.

At the time this factual record was written, in October 2002, a submerged outfall at Britannia continued to discharge untreated mine

effluent that is acutely lethal to fish into the fish-bearing waters of Howe

Sound. In addition to the $30M obtained from the private PRPs, the BC

Government expects to incur additional costs of $45M or more to complete the remediation program, which includes construction of an effluent treatment plant using HDS technology by June 2004. The federal

government has not made direct financial assistance available. A

provincial remediation action plan states that federal and provincial

effluent standards for the treatment plant will be “risk based,” but Environment Canada has stated that effluent requirements will be consistent

with limits set in federal regulations that apply to operating mines,

including a requirement for non-acutely lethal effluent.

The Secretariat retained an expert on ARD treatment to provide

preliminary comments on the effectiveness of the current provincial

EXECUTIVE SUMMARY 11
remediation program in stopping the deposit of deleterious substances

at the Britannia Mine in the shortest possible time and in the long term,

as provided by the Fisheries Act Compliance and Enforcement Policy. In

his report, the expert concluded that a treatment plant using HDS technology could likely be in operation sooner than the projected start-up

date in June 2004, as HDS technology is “practically off the shelf.” He

cautioned that because of the variable nature of Britannia effluent, strict

treatment plant operating controls will be required to avoid deposits of

deleterious substances in the future. Finally, he stated that the amount

budgeted for Britannia remediation and treatment plant operation

($75M) is only marginally sufficient to fund treatment plant operation in

perpetuity, requiring strict control of treatment plant operating costs

and a minimum 5% return on investment.

2. Summary of the Submission

The Submitters filed the submission on 29 June 1998, alleging “the

systemic failure of the Government of Canada to enforce s. 36(3) of the

Fisheries Act to protect fish and fish habitat from the destructive environmental impacts of the mining industry in British Columbia.”1 S. 36(3),

together with s. 40(2), make it an offense “to deposit or permit the

deposit of a deleterious substance of any type in water frequented by fish

or in any place under any conditions where the deleterious substance or

any other deleterious substance that results from the deposit of the deleterious substance may enter such water.”2

The Submitters identify four types of mining impacts on water

quality and they claim that acid mine drainage and heavy metal contamination cause the worst impacts.3 They explain that during mining, acid

mine drainage results when sulfide-bearing rock is exposed to air and

water, creating sulfuric acid. The sulfuric acid dissolves the metals in the

surrounding rock. This combination of toxic substances then flows into

water systems, harming fish, other aquatic species, fish habitat, water

quality and human health.4 Acid mine drainage continues as long as sulfide-bearing rock is exposed to air and water, until all the sulfides are

leached out. This process can take hundreds or thousands of years.5

The Submitters assert that there are at least 25 mines in British

Columbia that are known to be acid-generating and at least 17 other

12 FACTUAL RECORD: BC MINING SUBMISSION

1. Submission at 5.

2. S. 36(3) of the Fisheries Act.

3. Submission at 7-8, 5.

4. Ibid. at 5.

5. Ibid. at 8.
mines that are potentially acid-generating.6 The submission focuses on

three abandoned mines known to be acid-generating and states that

these mines have been leaching toxic, deleterious substances into

salmon-bearing waters in violation of s. 36(3) for over 25 years.7

According to the Submitters, the Tulsequah Chief Mine, an abandoned copper mine located on the Tulsequah River in northwest British

Columbia, has been discharging high levels of zinc, lead and copper into

the Tulsequah River since the mine began operating in the 1950s. These

toxic substances are having a significant impact on downstream water

quality and are acutely toxic to fish.8 The Submitters allege that the Britannia Mine, located 50 km north of Vancouver on the Sea-to-Sky Highway, discharges high levels of minerals, especially copper and zinc, into

Britannia Creek and Howe Sound and has been described as “the single

worst point source of metal pollution on the North American continent.”9 The Mt. Washington Mine on Vancouver Island, which operated

for two years, from 1964 to 1966, leaches copper-laced acid mine drainage into nearby streams which flow into the Tsolum River. The Tsolum

River’s salmon population has been virtually destroyed.10 The Submitters claim that no charges have ever been laid against the owners or operators of these mines.11

The Submitters state that they were able to find only three prosecutions of mining companies in British Columbia for violations of s. 36(3)

of the Fisheries Act, and that these date back to the 1980s.12 They claim

that neither Environment Canada nor the Department of Fisheries and

Oceans has enforced the Fisheries Act against mining companies in the

province for at least a decade, despite their knowledge of ongoing violations of the Fisheries Act caused by acid mine drainage.13 The Submitters

contend that “the fact that [the three mines highlighted in the submission] have been allowed to continue polluting fish habitat for decades is

prima facie evidence that enforcement mechanisms other than prosecution have been complete and utter failures.”14

SUMMARY OF THE SUBMISSION 13

6. Ibid. The Submitters attach a list of these 42 mines as Appendix 1 to the Submission.

7. Ibid. at 5.

8. Ibid. at 10. The Submitters attach a copy of a letter from Environment Canada to the

British Columbia Ministry of Environment, Lands and Parks describing copper,

zinc and lead present in the effluent as being acutely toxic to fish.

9. Ibid. at 10, citing a mining specialist working with Environment Canada, quoted in

the Vancouver Sun, June 13, 1996.

10. Ibid.

11. Ibid. at 10-12.

12. Ibid. at 14.

13. Ibid.

14. Ibid. at 17.
The Submitters attribute Canada’s failure to effectively enforce the

Fisheries Act in part to a severe shortage of staff and resources.15 They

also cite reduced accountability and transparency resulting from Canada’s efforts to devolve responsibility for enforcing environmental laws

to the provinces as another factor contributing to Canada’s alleged

failure to enforce the Fisheries Act.16 They claim that problems faced by

Environment Canada associated with staff and resource shortages and

reduced accountability and transparency “[...] lead inexorably to the

conclusion that the examples highlighted in this submission demonstrate a persistent, systemic pattern of non-enforcement of Canada’s

environmental laws.”17

3. Summary of Canada’s Response

In its response, filed with the Secretariat on 8 September 1999, Canada submits that further consideration of the submission and preparation of a factual record are not warranted for several reasons: the

assertions underlying the submission are subject to pending judicial or

administrative proceedings; Canada is taking all necessary actions to

ensure compliance with the pollution prevention provisions of the Fisheries Act; the Submitters did not provide Canada with a reasonable

opportunity to respond to their concerns; the NAAEC cannot be applied

retroactively (pre-1 January 1994); private remedies appear not to have

been pursued; and development of a factual record would not further

the objectives of the NAAEC.18

Canada asserts that it is enforcing s. 36(3) against mines in British

Columbia and other industrial facilities.19 Canada denies that there is a

pattern of non-enforcement because of staff and resource shortages. It

points to a comprehensive review of its enforcement program launched

in May 1998, the object of which is to further strengthen the enforcement

program and increase its reach and impact through development of an

action plan.20 No other information is provided regarding the enforcement program review.21

Canada asserts that in practice, and as a natural result of the constitutional division of responsibilities in environmental matters, the fed14 FACTUAL RECORD: BC MINING SUBMISSION

15. Ibid. at 12.

16. Ibid. at 13.

17. Ibid.

18. Response at 8-9.

19. Ibid. at 11.

20. Ibid. at 16.

21. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “[...] the plan in question added over $40 million to the enforcement program, increasing our number of enforcement officers and operating funds base.”
eral and provincial governments cooperate in setting goals, enacting

complementary legislation, and achieving compliance in a manner that

most effectively avoids gaps, overlaps or conflicts in government

enforcement action.22 It states that Canada and British Columbia “have

legislation, regulations, policies and procedures including a range of

compliance promotion and other enforcement tools in place to prevent

mining operations from harming fish and fish habitat.”23

Canada refers to its ongoing work on developing a compliance and

enforcement policy for the habitat protection and pollution prevention

provisions of the Fisheries Act,24 and attaches to the response the July,

1999 draft of the Fisheries Act Habitat Protection and Pollution Prevention

Provisions Compliance and Enforcement Policy (the “Draft Compliance and

Enforcement Policy”).25 Canada states that although this policy is still

being developed, Environment Canada follows the working draft at the

regional level in its enforcement of s. 36(3).26 Canada describes the range

of enforcement and compliance mechanisms at its disposal pursuant to

the Draft Compliance and Enforcement Policy and states “in dealing

with pollution problems, such as those from the three abandoned mines,

the mechanism determined to be the most effective in bringing about

compliance is always the preferred one.”27

With respect to criminal prosecutions, Canada explains that the

requirement to prove all elements of the offense beyond a reasonable

doubt means that prosecution may not always be a feasible enforcement

response for violations of s. 36(3), particularly in relation to abandoned

mines.28 The Crown will not approve the laying of charges unless there

is sufficient evidence to meet the criminal standard of proof and prosecution is in the public interest. The Crown will also consider the defendant’s chances of successfully invoking a defense, such as due diligence

or officially induced error. At an abandoned mine, there may be no person available to answer the charges. Alternately, the environmental

problem may not be resolved if the current owners do not have the financial resources to clean up the pollution.

Canada claims that the Submitters appear to equate enforcement

with legal and judicial prosecution and sanctions, and that this reflects

only a partial view of a much wider system of compliance-seeking

SUMMARY OF CANADA’S RESPONSE 15

22. Response at 10.

23. Ibid. at 15.

24. Ibid. at 13.

25. Ibid., Exhibit 4.

26. Ibid. at 13.

27. Ibid. at 11.

28. Ibid. at 14-15.
actions which collectively constitute the proper enforcement of environmental laws in a modern and complex society.29 Canada states that “[i]n

the case of mining operations, extensive monitoring, research and data

gathering activities over the past 15 years have led to a better understanding of the acid rock generation problems associated with mining

including the drainages emanating from abandoned mines in BC.”30

Canada’s response does not contain information about any of the

known or potentially acid-generating mines listed in Appendix 1 of the

submission, other than the three mines cited as examples by the Submitters, because in Canada’s view, the Submitters did not include specific

assertions about those mines.31 Canada adds, however, that it regularly

reviews and evaluates monitoring data from over 80 operating and

abandoned mines in British Columbia, including those listed in Appendix 1, to ensure compliance with the Fisheries Act. As an example of the

use of the full range of available enforcement responses, Canada states

that Fisheries Act charges have been laid against owners of the Kemess

Mine.32

Canada acknowledges that there are ongoing discharges of acutely

lethal effluent at the Britannia, Tulsequah Chief and Mt. Washington

mines33 and describes actions it has taken to address these potential

violations of s. 36(3), such as participating in technical and multistakeholder committees, and conducting multi-year studies, monitoring, and field research.34 Canada contends that there are pending

judicial or administrative proceedings within the meaning of Articles

14(3)(a) and 45(3)(a) of the NAAEC at each of the three mines.35 At Britannia, Canada provided detailed comments on provincial permit applications for the construction and operation of an effluent treatment plant

and other works.36 At Tulsequah Chief, Canada issued a warning letter

and conducted follow-up inspections.37 At Mt. Washington, Canada

collected effluent samples and wrote a letter to four persons with ownership or other interests in the property, advising them that the effluent

violated s. 36(3) of the Fisheries Act.38 Canada states that these actions

16 FACTUAL RECORD: BC MINING SUBMISSION

29. Ibid. at 12.

30. Ibid. at 12.

31. Ibid. at 16.

32. Ibid. at 15.

33. Ibid. at 17, 20, 23.

34. Ibid. at 16-24.

35. Ibid. at 4-5, 16-24.

36. Ibid. at 18-19.

37. Ibid. at 23-24. As the response was filed by Canada with the Secretariat in September 1999, it does not present up to date information regarding actions of Canada in

regard to enforcement of s. 36(3) at the Tulsequah Chief and Mt. Washington

mines.

38. Ibid. at 21-22.
“clearly demonstrate a comprehensive and productive strategy aimed at

eliminating the discharge of deleterious substances and thereby achieving compliance with the Act.”39 Further, Canada maintains that these

actions were pursued in a timely manner, are consistent with the Draft

Compliance and Enforcement Policy, and are expected to resolve the

many issues raised in the submission.40

4. Scope of the Factual Record

On 11 May 2001, the Secretariat notified the Council under Article

15(1) of the NAAEC that the Secretariat considered that the submission,

in light of Canada’s response, warranted development of a factual

record. The Secretariat found that using three mines as examples, the

submission raised central questions regarding the Party’s efforts to control and prevent acid mine drainage so as to enforce compliance with s.

36(3) of the Fisheries Act in relation to mining operations in British

Columbia.

Council Resolution 01-11, which is set out in its entirety in Appendix 1, instructs the Secretariat:

[...] to prepare a factual record in accordance with Article 15 of the NAAEC

and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation for the assertion that Canada is failing to effectively enforce section

36(3) of the Fisheries Act with respect to the Britannia Mine.

In addition, in Council Resolution 01-11, the Council unanimously

decided “[...] to terminate this submission process with respect to the

assertions concerning the Tulsequah Chief and Mt. Washington Mines”

on the basis that both mines remained subject to pending judicial or

administrative proceedings.41 The Submitters objected to Council Resolution 01-11, claiming that at both Mt. Washington and Tulsequah Chief,

Environment Canada had taken no action since it issued warning letters

in June 1998, and that the two-year limitation period for bringing summary conviction proceedings expired in June 2000.42 The Submitters

claimed “[...] looking only at the Britannia site will paint an unrepresentative and inaccurate picture.”43

SCOPE OF THE FACTUAL RECORD 17

39. Ibid. at 12.

40. Ibid. at 5.

41. The Council Resolution (Appendix 1 to this Factual Record) provides information

regarding the Council’s reasons for limiting the scope of the factual record.

42. Letter from Randy L. Christensen, Sierra Legal Defence Fund, to the Council (6

March 2002).

43. Ibid.
In light of the Council’s instructions in Council Resolution 01-11,

the scope of this factual record is significantly different from the scope of

both the factual record requested in the submission and the factual

record that the Secretariat considered to warrant development.44 This

section clarifies the scope of the factual record and briefly summarizes

the matters raised in the submission and the Secretariat’s Article 15(1)

notification to Council that fall outside the scope of Council Resolution

01-11. As stated in the overall work plan for the factual record, this factual record presents information regarding:

(i) alleged violations of s. 36(3) of the Fisheries Act in connection with the

Britannia Mine;

(ii) Canada’s enforcement of s. 36(3) of the Fisheries Act in connection

with the Britannia Mine; and

(iii) whether Canada is failing to effectively enforce s. 36(3) of the Fisheries

Act in the context of the Britannia Mine.

Legal background regarding the scope and meaning of s. 36(3) of

the Fisheries Act as it applies to the Britannia Mine is within the scope of

the factual record. Information regarding general policies and practices

of the Government of Canada for enforcing and promoting compliance

with s. 36(3) of the Fisheries Act at abandoned mines such as Britannia is

included in the factual record to the extent relevant to the experience

with the Britannia Mine. However, consistent with Council Resolution

01-11, the Secretariat has included no information in this factual record

regarding enforcement and compliance promotion actions taken by

Canada at the Tulsequah Chief and Mt. Washington mines cited as

examples in the submission, or at any other known or potentially

acid-generating mines listed in Appendix 1 to the submission.

Specifically, and pursuant to Council Resolution 01-11, this factual

record generally excludes information relevant to

• compliance with MMLER (now MMER) and/or s. 36(3) at operating and abandoned mines in British Columbia, except at the

Britannia Mine;

• MMER and/or s. 36(3) enforcement and compliance promotion

efforts at operating and abandoned mines in British Columbia,

except at the Britannia Mine;

18 FACTUAL RECORD: BC MINING SUBMISSION

44. Council Resolution 01-11 is binding on the Secretariat. It should not be assumed

that the Secretariat’s Article 15(1) Notification to Council recommending a factual

record for SEM-98-004 (B.C. Mining) was intended to include a recommendation to

prepare a factual record of the scope set out in Council Resolution 01-11, or that the

Secretariat would have recommended a factual record of this scope.
• detailed information on s. 36(3) enforcement/compliance promotion resources in British Columbia;

• role of the harmonized environmental assessment process in

promoting compliance with the MMER and/or s. 36(3) at operating and abandoned mines in British Columbia; and

• effectiveness of MMER and/or s. 36(3) enforcement and compliance promotion efforts at operating and abandoned mines in

British Columbia, except at the Britannia Mine.

5. Summary of Other Relevant Factual Information and Facts

Presented by the Secretariat with Respect to Matters Raised

in Council Resolution 01-11

5.1 Information Gathering Process

On 16 November 2001, the CEC Council instructed the Secretariat

to develop a factual record in regard to submission SEM-98-004 (B.C.

Mining), pursuant to Council Resolution 01-11 (Appendix 1). Under

Article 15(4) of the NAAEC, in developing a factual record, “the Secretariat shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information: (a) that is

publicly available; (b) submitted by interested nongovernmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent experts.”

On 14 December 2001, the Secretariat published an Overall Plan to

Develop a Factual Record (Appendix 2) pursuant to Council Resolution

01-11. The plan stated the Secretariat’s intention to gather and develop

information relevant to facts regarding:

(i) alleged violations of s. 36(3) of the Fisheries Act in connection with the

Britannia Mine;

(ii) Canada’s enforcement of s. 36(3) of the Fisheries Act in connection

with the Britannia Mine; and

(iii) whether Canada is failing to effectively enforce s. 36(3) of the Fisheries

Act in the context of the Britannia Mine.

To comply with Council’s instruction to the Secretariat in Council Resolution 01-11 “to provide the Parties with its overall work plan for gathering the relevant facts and to provide the Parties with the opportunity to

comment on that plan,” the Secretariat stated that execution of the plan

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 19
would begin no sooner than 14 January 2002. Canada provided the

Secretariat with comments on the plan on 14 January 2002 and the

United States provided comments on the plan on 23 January 2002

(Appendix 3).

As noted above in Section 4 regarding the scope of the factual

record, and as reflected in the overall plan to develop the factual record,

the Council, in Resolution 01-11, determined the scope of the information gathered for the factual record. Accordingly, the Secretariat prepared a Request for Information (Appendix 4) limited, as described

above, to the matters set out in Council Resolution 01-11. The Request for

Information provided the following examples of relevant information

falling within the scope of the factual record:

1. Information regarding the characteristics of acid mine drainage at

the Britannia Mine, including annual and seasonal volumes and

chemical composition.

2. Information on whether and to what extent acid mine drainage

from the Britannia Mine renders water to which it is added deleterious to fish or fish habitat or to the use by man of fish that frequent

that water, including:

• monitoring or inspection results;

• studies carried out by or on behalf of owners or operators of the

Britannia Mine, universities, government, nongovernmental

organizations or others;

• public complaints or petitions.

3. Information about remedial measures for controlling acid mine

drainage, including:

• whether such measures have been adopted at the Britannia

Mine;

• who is responsible for implementing such measures;

• cost of such measures and who bears the risk of cost over-run;

• effectiveness of such measures in ensuring compliance with section 36(3) of the Fisheries Act at the Britannia Mine.

4. Information on local, provincial or federal policies or practices

(formal or informal) regarding enforcement of, or ensuring compliance with, section 36(3) of the Fisheries Act, specifically ones that

might apply to acid mine drainage from the Britannia Mine.

20 FACTUAL RECORD: BC MINING SUBMISSION
5. Information on federal, provincial or local enforcement or compliance-related staff or resources available for enforcing or ensuring

compliance with section 36(3) of the Fisheries Act in connection

with the Britannia Mine.

6. Information on Canada’s or British Columbia’s efforts to enforce or

ensure compliance with Fisheries Act section 36(3) in connection

with the Britannia Mine, including for example:

• efforts to prevent violations, such as by providing technical

assistance;

• monitoring or inspection activity;

• public consultations;

• warnings, orders, charges or other enforcement action issued to

owners of the Britannia Mine;

• agreements entered into with owners or former owners or operators of the Britannia Mine;

• actions to remedy impacts to fish habitat caused by acid mine

drainage from the Britannia Mine; or

• coordination between different levels of government on

enforcement and compliance assurance.

7. Information on the effectiveness of Canada’s or British Columbia’s

efforts to enforce or ensure compliance with Fisheries Act section

36(3) in connection with the Britannia Mine, for example their

effectiveness in:

• remedying any violations of Fisheries Act section 36(3) that

occurred;

or

• preventing future violations of that provision.

8. Information on barriers or obstacles to enforcing or ensuring compliance with section 36(3) of the Fisheries Act in connection with the

Britannia Mine.

9. Any other technical, scientific or other information that could be

relevant.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 21
In early February 2002, the Secretariat posted the Request for Information on the CEC web site and issued a press release notifying the public of its availability. In addition, on 7 February 2002, the Secretariat sent

the Request for Information to the Government of Canada, inviting a

response by 15 April 2002 in order to allow time to request follow-up

information and also requesting meetings with officials from relevant

federal, provincial and/or local agencies to discuss the matters to be

addressed in the factual record. As requested by Canada, requests for

information from the Canadian federal government were made in writing through designated points of contact. The Secretariat also sent the

Request to the Submitters, the Governments of Mexico and the United

States, the Joint Public Advisory Committee (JPAC), representatives of

current and past owners of the Britannia Mine, and nongovernmental

organizations identified as potentially having relevant information,

inviting them to respond with any relevant information by 30 June 2002.

The Secretariat sent the Government of Canada an additional information request on 8 May 2002 with follow-up questions based on the Secretariat’s review of information received from Canada on 15 March 2002

(Appendix 5).

The Submitters provided documents that the Secretariat requested

from them. The Secretariat also met with a representative of the Submitters on 24 May 2002. The Secretariat met with representatives of the

province on 12-13 June 2002. The Secretariat received additional information from members of the public. In addition to information received

in response to the Secretariat’s requests for information, the Secretariat

developed information through publicly available sources and hired

independent experts to assist in the development of information regarding the meaning and scope of s. 36(3) of the Fisheries Act, the effectiveness

of the Britannia Mine Remediation Project in achieving compliance with

s. 36(3) at the Britannia Mine in the shortest possible time and with no

further occurrence of violations, and federal government structure as

regards decision-making on enforcement matters.

Article 15(5) of the NAAEC provides that “[t]he Secretariat shall

submit a draft factual record to the Council. Any Party may provide

comments on the accuracy of the draft within 45 days thereafter.” Pursuant to Article 15(6), “[t]he Secretariat shall incorporate, as appropriate,

any such comments in the final factual record and submit it to the Council.” The Secretariat submitted the draft factual record to the Council on

28 March 2003 and received comments from Canada and the United

States on 15 May 2003. Mexico did not comment on the draft factual

record.

22 FACTUAL RECORD: BC MINING SUBMISSION
5.2 Meaning and Scope of Fisheries Act s. 36(3)

5.2.1 Introduction

Under the Canadian Constitution, the federal government has

exclusive legislative jurisdiction over “Sea Coast and Inland Fisheries.”45 The federal Fisheries Act was adopted in 1868, a year after confederation.46 British Columbia became a province of Canada in 1871.

British Columbia’s Terms of Union included a requirement for the federal government to “assume and defray the charges for protection and

encouragement of fisheries.”47 Except as provided in the Terms of

Union, all generally-applicable provisions of the Constitution applied to

British Columbia as though it had become a province in 1867.48

S. 36(3) is in the part of the Fisheries Act entitled “Fish Habitat Protection and Pollution Prevention.” It provides that

[s]ubject to subsection (4), no person shall deposit or permit the deposit of

a deleterious substance of any type in water frequented by fish or in any

place under any conditions where the deleterious substance or any other

deleterious substance that results from the deposit of the deleterious substance may enter any such water.

The kind of prohibition contained in s. 36(3) has been part of the Fisheries

Act since it was adopted in 1868.49 It applies everywhere in Canada, on

public and private property, to any and all activities, whether carried on

by private persons or companies, provinces, municipalities or the federal government.50 Only regulations adopted under s. 36(4) can make a

deposit that would otherwise violate s. 36(3) legal.

Regulations have been adopted under s. 36(4) to control effluent

discharges to the environment from certain industrial activities.51 These

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 23

45. S. 91(12) of the Constitution Act, 1867 (U.K.), 30 and 31 Vict. c. 3.

46. 31 Vict. 1868, c. 60.

47. S. 5(e) of the Schedule to the British Columbia Terms of Union.

48. Ibid. at s. 10.

49. 31 Vict. 1868, c. 60, s. 14; replaced S.C. 1969-70, c. 63, s. 3.

50. S. 3(2) of the Fisheries Act: “This Act is binding on Her Majesty in right of Canada or

a province.”

51. See MMLER (infra, note 54); Pulp and Paper Effluent Regulations, SOR/92-269;

Chlor-Alkali Mercury Liquid Effluent Regulations, C.R.C., c. 811; Meat and Poultry

Products Plant Liquid Effluent Regulations; C.R.C., c. 818; Petroleum Refinery Liquid

Effluent Regulations, C.R.C., c. 828; Potato Processing Plant Liquid Effluent Regulations,

C.R.C., c. 829. Regulations have also been adopted for specific facilities: Alice Arm

Tailings Deposit Regulations, SOR/79-345 (repealed); Port Alberni Pulp and Paper

Effluent Regulations, SOR/92-638. See Environment Canada <http://www3.ec.gc.

ca/EnviroRegs/Eng/SearchDetail.cfm?intAct=101> (last updated: 6 November

2001).
regulations recognize that substances present in industrial effluent can

be deleterious to fish, and that in some cases, the effluent itself can be a

“deleterious substance” for the purposes of the Fisheries Act.52

5.2.2 S. 36(3) and Mining

Operating and closed mines often generate effluent that can violate

s. 36(3) of the Fisheries Act.53 Mine effluent results from water entering

into contact with minerals, metals, and other substances. This can happen as part of the mining or milling process, or as a natural phenomenon,

when precipitation, surface water or groundwater comes into contact

with such substances. Substances become suspended in or dissolve in

the water, sometimes producing chemical reactions. Mine effluent can

reach fish habitat from a number of sources, including as discharge from

abandoned mine workings, as contaminated groundwater or surface

run-off, or even as outflow from an effluent treatment plant.

Metal Mining Liquid Effluent Regulations(“MMLER”) were adopted

under the Fisheries Act in 1977.54 At the time, “existing metal mines”55

were excluded from the application of the MMLER but were encouraged

to comply with a non-binding guideline that was intended to control

effluent from existing mines in a manner similar to the MMLER. An

environmental code of practice was also issued, specifying actions to be

taken to protect the environment throughout the life of a mine (MMLER

mines and “existing mines”), including post-closure.56 Because Britannia closed down in 1974, it was not an “existing metal mine” for the purposes of the MMLER and was considered by Environment Canada not to

be covered by the guidelines or the code.57

24 FACTUAL RECORD: BC MINING SUBMISSION

52. See, for e.g., s. 3 of the MMER (infra, note 58): “For the purpose of these Regulations,

the substances set out in column 1 of Schedule 4 and any acutely lethal effluent are

prescribed as deleterious substances.”

53. At exploration sites and operating mine sites, other activities can also violate

s. 36(3). However, for present purposes, the focus is on effluent.

54. C.R.C., c. 819. Under the MMLER, “effluent” was defined to include mine water

effluent, mill process effluent, tailings impoundment area effluent, treatment pond

or treatment facility effluent, seepage and surface drainage.

55. Under the MMLER, “existing mine” meant a mine that came into commercial production before February 25, 1977 and that operated on a commercial basis for at

least two months in the 12 months immediately prior to that date (Britannia closed

in 1974).

56. See Canada, Metal Mining Liquid Effluent Regulations and Guidelines (Regulations,

Codes and Protocols Report EPS 1-WP-77-1) (Ottawa: Environment Canada, 1977).

57. Telephone conversation with Ken Wile, Head, Inspections, Environment Canada,

Pacific and Yukon Region, 29 July 2002. It is not clear whether the guidelines actually applied to Britannia, because s. 3 of the guidelines states that “[t]hese Guidelines apply to every metal mine, except gold mines, to which the MMLER do not

apply.”
The Metal Mining Effluent Regulations (“MMER”)58 replaced the

MMLER in June 2002.59 Like the MMLER, the MMER set limits on concentrations of certain substances in mine effluent.60 They also contain a

standard for “total suspended solids” (which make water murky, affecting the health of fish and fish habitat), prescribe an acceptable range for

pH levels (the balance between acidity and alkalinity), and include a

new requirement that mine effluent be non-acutely lethal to fish. Under

the MMER, mine owners must also monitor effluent for “chronic toxicity,” and must conduct “environmental effects monitoring” to identify

effects, if any, of the effluent on the receiving environment. As long as

effluent from a mine meets the qualitative and quantitative standards

found in the MMER and the mine owner complies with MMER monitoring requirements, that mine is not violating s. 36(3), even though it may

be depositing a deleterious substance into water frequented by fish.

The “Regulatory Impact Analysis Statement” published with the

MMER states that the MMLER applied to approximately 30 mines in

Canada, while the MMER apply to approximately 90 mines.61 The

increase is explained by the fact that “existing mines” (mines that began

operating before 1977) are now covered by the MMER. However, mines

that closed before 6 June 2002, including thousands of so-called “abandoned mines” such as Britannia, are not covered by the MMER.62

Because the MMER do not contain standards for effluent from

mines such as Britannia, that effluent remains subject to the “general

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 25

58. SOR/2002-222, C. Gaz. 2002.II.1412. Effective date 6 December 2002. Under the

MMER, “effluent” means mine water effluent, milling facility effluent, tailings

impoundment area effluent, treatment pond effluent, treatment facility effluent

(other than effluent from a sewage treatment facility), seepage and surface drainage that contains a deleterious substance.

59. For background information, see the Regulatory Impact Analysis Statement

(“RIAS”) published with the MMER; ibid. at 1444-62.

60. Such as 0.3 – 0.6 mg/L for copper, the principal contaminant of concern at Britannia. The RIAS for the MMER explains that “[t]he new MMER limits are based on a

comprehensive review and assessment of national and international mining effluent standards, pollution prevention practices and control technologies of relevance

to the mining sector, and the current performance of the Canadian mining sector in

terms of effluent quality. The new limits reflect the effluent quality that is achieved

by the best performing (upper 50th percentile) of Canadian metal mines and thus

are based on the availability of demonstrated technology. The proposed MMER

requirements take into account current provincial and territorial regulatory requirements and essentially mirror those in place under the Province of Ontario’s

Municipal Industrial Strategy for Abatement (MISA) program;” ibid. at 1447.

61. Ibid. at 1454.

62. See W.O. Mackasey,“Abandoned Mines in Canada” (prepared for MiningWatch

Canada) (Sudbury: WOM Geological Associates, 2000) at Section 6.0. This report

estimates that there are 10,139 abandoned mines in Canada, but cautions that this

figure is based on provincial government inventories, some of which include small

trenches and test pits in the definition of “mine.”
prohibition” against depositing deleterious substances into water frequented by fish found in s. 36(3). At these mines, an acute lethality test is

routinely used as one measure of compliance with s. 36(3).63 This test

involves exposing rainbow trout to undiluted effluent for ninety-six

hours. A mortality rate of fifty percent or more means the effluent is

acutely lethal to fish. Courts have repeatedly held that acutely lethal

effluent is a deleterious substance for the purposes of the Fisheries Act.

Under the Fisheries Act, discharging or permitting the discharge of a

deleterious substance into water frequented by fish is a violation of

s. 36(3) and an offense pursuant to s. 40. Courts determine whether facts

presented by the prosecution establish the existence of a violation of s.

36(3) and if so, whether a person is guilty of an offence in respect of that

violation.

5.2.3 Responses to Alleged Violations of s. 36(3) Provided for under

the Fisheries Act

The Fisheries Act provides a range of potential responses to alleged

or apprehended violations of s. 36(3), including information requests

and orders from the Minister of Fisheries and Oceans of Canada (the

“Minister”), prosecutions, court orders upon conviction, injunctions,

and civil suits for recovery of remediation costs. Information regarding

these types of responses is provided below, along with explanations

provided by Canada, where available, regarding why none of these

responses have been pursued at the Britannia Mine despite ongoing violations of s. 36(3) resulting from the discharge to Howe Sound of mine

effluent that is acutely lethal to fish.

5.2.3.1 Information Requests and Orders from the Minister

The Fisheries Act gives the Minister the power to request information in connection with any work or undertaking that results or is likely

to result in the deposit of a deleterious substance contrary to the Fisheries

Act (s. 37(1)). Specifically, the Minister can request the production of

information relating to the work or undertaking, whether there is or is

likely to be a deposit of a deleterious substance by reason of the work or

undertaking, and what measures, if any, would mitigate the effects

thereof. On the basis of such information and any representations made

by the person who provided it, the Minister can, with the approval of the

Governor in Council, order modifications to the work or undertaking,

restrict its operation, or direct its closing for a specified period.

26 FACTUAL RECORD: BC MINING SUBMISSION

63. Telephone conversation with Robert McCandless, Senior Program Officer, Industrial Programs, Pacific and Yukon Region, Environment Canada, 11 October 2002.
5.2.3.2 Prosecutions

Another potential response to an alleged violation of s. 36(3) is to

initiate a prosecution against a named person responsible for the alleged

violation. To succeed in a prosecution, the Crown must be able to prove

beyond a reasonable doubt that the named person “deposited” or “permitted the deposit of” a “deleterious substance” into or near “water

frequented by fish.”

The Fisheries Act specifies that a “deposit” takes place whether or

not the act resulting in the deposit is intentional.64 “Water frequented by

fish” is defined as “Canadian fisheries waters,” but it is not “water frequented by fish” for the purposes of the Fisheries Act if the defendant can

prove that at all times material to the proceedings the water is not, has

not been and is not likely to be frequented by fish.65 The deposit of a deleterious substance may also be a potential violation if deposited into

waters which may enter waters frequented by fish.

The courts have held that if a substance is “deleterious” in and of

itself (such as acutely lethal effluent), the Crown does not have to prove

that depositing such a substance into water frequented by fish actually

caused harm to fish or fish habitat in order to secure a conviction under s.

36(3).66 It only needs to prove that the substance was deposited or permitted to be deposited.

Under s. 40(2) of the Fisheries Act, violations of s. 36(3) are offenses

punishable either on summary conviction (carrying fines of up to

$300,000 for a first offense, with the possibility of a $300,000 fine and/or

imprisonment for up to six months for repeat offenders) or on indictSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 27

64. S. 40(5)(a) of the Fisheries Act.

65. Ss. 34(1) and 40(5)(b) of the Fisheries Act. It has been held that even if there are no

fish in the vicinity of the deposit, where the surrounding water is tidal in nature

and fish bearing, the deposit is considered to have been made to water frequented

by fish; R. v. Stora Forest Industries Ltd., [1993] N.S.J. No. 330 (Prov. Ct.).

66. In determining whether a substance is deleterious, it is sufficient to prove that the

substance deposited is capable of making water harmful to fish. For instance, in R.

v. MacMillan Bloedel (Alberni) Limited (1978), 42 C.C.C. (2d) 70 (B.C. Co. Ct.) at 73-74;

affirmed 47 C.C.C. (2d) 118 (B.C.S.C.); leave to appeal to S.C.C. refused (1979), 47

C.C.C. (2d) 118n (S.C.C.), the Court held that “[t]he effect of the Act is to provide

that if such a substance has had a harmful effect on fish elsewhere when added to

water, then it qualifies as a deleterious substance under the Fisheries Act.” See also

R. v. Abitibi Consolidated (2000), 190 Nfld. and P.E.I.R. 326; 2000 Nfld. and P.E.I.R.

LEXIS 238; 576 A.P.R. 326 (Nfld. Prov. Ct.) at para. 51: “In determining whether the

Crown has established that there was a deposit of a deleterious substance beyond a

reasonable doubt, I agree with the Crown’s assertion that it is not necessary to

establish actual harm or damage to fish or fish habitat.”
ment (with fines of up to a $1M for a first offense and fines of up to $1M

and/or prison terms of up to three years for repeat offenders). Every day

on which a Fisheries Act violation continues is a separate offense (s. 78.1).

Officers, directors or agents of a corporation who direct, authorize,

assent to, acquiesce in or participate in the commission of an offense are a

party to and guilty of the offense, and liable to the punishment provided

for the offense, whether or not the corporation is prosecuted (s. 78.2).

Canada has stated that prosecution under s. 36(3) is not, and has

not been, a viable option for addressing the pollution problem at the Britannia Mine.67 Canada has stated that because the site was owned and

operated by a number of different companies over the years, it was

[...] very difficult for Environment Canada investigators in the 1970s

and 1980s to determine whether the pollution they were targeting had

occurred within the two year limitation period for prosecuting an offence

under s. 36(3), and to identify which company was responsible for causing

the pollution. The requirement for the Crown to prove, beyond a reasonable doubt, all elements of a charge under the Fisheries Act made it very

unlikely that a prosecution would have been successful.68

Canada has explained that even though the two-year limitation

period for bringing prosecutions was dropped as a result of amend28 FACTUAL RECORD: BC MINING SUBMISSION

67. Facts on the Britannia Mine at 4-5. In its 14 May 2003 comments on the accuracy of

the Draft Factual Record, Canada stated: “Environment Canada asserts that until

1991, a contravention of subsection 36(3) was a summary conviction offence (misdemeanour) under the Fisheries Act that was required to be prosecuted within two

years of the occurrence of the offence (i.e. the deposit of susbstances deleterious to

fish). The pollution problem at the Britannia Mine began in 1906 and continued

throughout operation of the mine, which ended in 1974, to the present day. Over

those years, the mine site has been owned and operated by a number of different

mining companies. These factors made it very difficult for Environment Canada

investigators to determine whether the pollution they were targeting had occurred

within the two year limitation period for prosecuting an offence under s. 36(3), and

to identify which company was responsible for causing the pollution. The requirement for the Crown to prove, beyond a reasonable doubt, all elements of a charge

under the Fisheries Act made it very unlikely that a prosecution would have been

successful.

As a result of a substantive amendment to the Fisheries Act in 1991, a violation of

section 36(3) became a hybrid offence which could be prosecuted by summary conviction (misdemeanour) or by way of indictment (felony), and the two year limitation period for prosecuting offences was dropped. This amendment, however, did

not have retrospective application. This means that no person could be prosecuted

after 1991 for a violation of s. 36(3) which occurred before 1991. Because the substances causing the pollution were deposited by the mining companies before 1991,

these companies could not be prosecuted under the Fisheries Act after it was

amended in 1991.”

68. Ibid.
ments to the Fisheries Act in 1991, the amendments were not retroactive,

meaning that no one could be prosecuted after 1991 for a violation of s.

36(3) which occurred before 1991.69 Canada stated that “[b]ecause the

substances causing the pollution were deposited by the mining companies before 1991, these companies could not be prosecuted under the

Fisheries Act after it was amended in 1991.”70 This statement appears to

refer to the fact that in addition to discharging mine effluent to Howe

Sound, past operators of the mine deposited mine tailings (which are

considered to be deleterious substances) into the Sound. Environment

Canada provided no information regarding why no prosecutions were

launched against previous owners or operators of the mine for s. 36(3)

violations resulting from the continuous effluent discharge, although

for the purposes of this factual record, the relevant time period is post-1

January 1994. As regards the current owner, Copper Beach Estates Ltd.,

see 5.2.3.4 and 5.2.3.6, below.

5.2.3.3 Defenses to Charges under s. 36(3)

Violation of s. 36(3) is a strict liability offense. Under the Fisheries

Act, this means that even if the Crown succeeds in proving all the elements of the offense beyond a reasonable doubt, a defendant will not be

convicted for violating s. 36(3) if the defendant enters a defense and can

prove on a balance of probabilities that the facts support that defense.71

For example, even if the Crown proves beyond a reasonable doubt that a

company discharged a deleterious substance into water frequented by

fish, the company will be acquitted if it can prove on a balance of probabilities that it was duly diligent in trying to prevent the discharge from

occurring. “Due diligence” requirements vary depending on the facts in

each case (see below, s. 5.2.3.3.1).

In its response to the submission, Canada stated “the accused has

several defences to which the Crown must be able to respond. The two

most common defences are officially induced error and due diligence.

Although the evidentiary onus is on the accused to prove such a defence,

the investigating law enforcement agency or department investigates

both these components of the case before the Crown prosecutor

approves the laying of charges.”72 The facts at the Britannia Mine (see ss.

5.4, 5.5 and 5.6, below), together with the information provided below,

are relevant to a consideration of whether the defenses of due diligence

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 29

69. Ibid. at 5.

70. Ibid.

71. S. 78(6) of the Fisheries Act.

72. Response at 14.
or officially induced error might be available to counter any charges laid

in connection with facts consistent with ongoing violations of s. 36(3) at

the Britannia Mine.

5.2.3.3.1 The Defense of Due Diligence

Under the Fisheries Act, a defendant will avoid conviction if it can

prove that it was duly diligent in trying to prevent the occurrence of the

offense or reasonably and honestly believed in mistaken facts that, had

they been true, would render the defendant’s conduct innocent (s. 78.6).

Where the alleged offense is based on “inaction” on the part of the defendant and the defendant is accused of “permitting” a violation, the courts

have suggested that “[...] the real issue is whether the accused had exercised due diligence.”73

Due diligence requirements at an abandoned mine site were

recently reviewed in an Ontario case involving the Ontario Ministry of

the Environment (“MOE”) as “remediator of last resort” of the Deloro

mine.74 Information on the case is provided in some detail because of its

relevance in showing how a court applied s. 36(3) to facts that are in

many respects similar to those at Britannia (see ss. 5.4, 5.5, and 5.6,

below). Particularly relevant is the distinction drawn between the evidentiary requirements of s. 35(1) (habitat protection) and s. 36(3) (pollution prevention) of the Fisheries Act, as well as the discussion regarding

due diligence obligations of the provincial environment ministry,

although it should be noted that at Britannia, BC Environment has taken

over site remediation under a private agreement with past owners and

operators (see s. 5.5.3, below), rather than pursuant to a statutory obligation. This factor would likely be considered by a court in determining

whether BC Environment has sufficient control of the site to be potentially liable for any s. 36(3) violations at Britannia. It would also, as discussed below, be relevant to a determination of the ministry’s due

diligence obligations regarding ending any s. 36(3) violations at Britannia. Relevant information regarding the Deloro case is set out below.

After a century of mining and smelting activities, different types of

arsenic and other wastes had accumulated on-site at the Deloro mine. In

the late 1950s, high concentrations of arsenic were detected in a nearby

river. Subsequently, it was discovered that sediment, groundwater and

surface water contamination were all contributing to pollution of the

30 FACTUAL RECORD: BC MINING SUBMISSION

73. R. v. Rivtow Straits Ltd. (1993), 12 C.E.L.R. (N.S.) 153 (B.C.C.A.) at para. 45.

74. R. v. Ontario (Ministry of the Environment), [2001] O.J. No. 2581 (Ont. Ct. of Justice)

[hereinafter “Deloro”].
river. The mine was sold to a shell company, and that company abandoned the site after being issued an MOE remediation order, followed

by a stop order. The MOE became the “remediator of last resort” under

the Ontario Environmental Protection Act in 1979. Thereafter, like at Britannia, remediation efforts were hampered by lack of knowledge concerning contaminants at the site, remediation technology issues, and

remediation funding issues. Charges were laid against the MOE for violations of the Ontario Water Resources Act and ss. 35(1)75 and 36(3) of the

Fisheries Act during the 1995-97 period (the “charge period”). At trial, the

court found that upon taking over the site, the MOE was immediately

subject to liability under the habitat protection and pollution prevention

provisions of the Fisheries Act.76

Under s. 35(1) of the Fisheries Act, the Crown had to prove that inaction by the MOE resulted in harmful alteration, disruption or destruction of fish habitat. The Crown was successful in proving that

metal-contaminated sediments in the river were having a deleterious

effect on fish. However, it was not successful in proving that MOE inaction during the charge period (1995-97) had resulted in the sediment

contamination identified by the prosecution. The judge ruled “[...] there

is little evidence before me to establish that the metal contaminants in

that sediment were deposited since the defendant has taken control of

the site, let alone the charge period.”77

Unlike s. 35(1), s. 36(3) does not require proof of harm to fish habitat. It only requires proof of the deposit of a deleterious substance into

water frequented by fish (see s. 5.2.2, above), although proof of harm to

fish and fish habitat is a factor that is taken into account during sentencing. Consequently, in determining whether there had been a violation of

s. 36(3) at Deloro, the court accepted evidence that in the scientific literature, levels of metals such as those registered in the river were stated to

be harmful to fish, and pointed out that the law (s. 36(3)) does not require

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 31

75. S. 35(1) “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Here, the court accepted

the prosecution’s definition of “work” as being “[...] the management and control

of the site” (ibid. at para. 155).

76. Ibid. at paras. 139-40: “When the defendant assumes management and control over

an abandoned property (or over a property still operated by an owner unwilling to

act) it does so to protect the environment from further deterioration by the refusal

to remediate. It must act accordingly. [...] The intervening entity must proceed with

the remediation of the property with due diligence. The entity is indeed immediately subject to prosecution for permitting discharges which were not caused by

it.” The court also held that the status of the party was a factor to be considered in

assessing due diligence.

77. Ibid. at para. 161.
proof that the metals are actually causing an effect in the river.78 The

judge specifically rejected the defense’s argument that the prosecution

had failed to make its case because it had not conducted field studies to

determine whether arsenic in the river was in a form that is absorbed by

fish. He stated that the law does not require such specificity, and concluded that the prosecution had established all elements beyond a reasonable doubt.79

The court then considered whether the MOE had been duly diligent in its management of the site between 1995 and 1997. The court

specified that even though the MOE had been in charge of the site for

much longer, it only needed to prove due diligence for the charge

period. It also clarified that

[e]vidence of the defendant’s actions prior to that period is relevant to the

proper understanding of the efforts made during the charge period. It is

obvious that if the remediation plans are suspended during the charge

period as a result of unforeseen circumstances, the due diligence must be

addressed in the context of the action which preceded the “event” [i.e. the

1995-97 period]. Similarly, if the solutions to the polluting act are provided

and planned for prior to the “event” and not acted upon, the previous

efforts at remediation will not satisfy the due diligence criteria. In other

words, due diligence must be placed in context but the context cannot be

determinative of the issue.80

The court also cited case law defining due diligence requirements under

Canadian law. Due diligence does not require superhuman efforts, but

rather a high standard of awareness and decisive, prompt, and continuing action. It requires the taking of all reasonable steps, not all conceivable steps.81

The court considered the prosecution’s argument that the MOE

had failed to establish due diligence because the provincial government

32 FACTUAL RECORD: BC MINING SUBMISSION

78. Ibid. at para. 165.

79. Ibid. at paras. 166-67, 171.

80. Ibid. at para. 174.

81. Ibid. at paras. 175-76. He also cited a case that lists factors that must be weighed and

balanced in assessing due diligence: 1. the nature and gravity of the adverse effect;

2. the foreseeability of the effect, including abnormal sensitivities; 3. the alternative

solutions available; 4. legislative or regulatory compliance; 5. industry standards;

6. the character of the neighbourhood; 7. what efforts have been made to address

the problem; 8. over what period of time, and promptness of the response; 9. matters beyond the control of the accused, including technological limitations; 10. skill

level expected of the accused; 11. the complexities involved; 12. preventative systems; 13. economic considerations; and 14. actions of officials; R. v. Commander

Business Furniture, [1992] O.J. No. 2904, 1992 Carswell Ont. 222 (Ont. Ct. J. (Prov.

Div.)) cited in Deloro, ibid. at para. 177.
had failed to provide funding for the remediation effort on a timely

basis. The court cited judicial precedent for the view that “the government’s decision for the disbursement of public funds is not subject to

judicial review.”82 It clarified that the court’s “[...] function at trial, however, is not to ‘review’ the decision but to assess its impact.” The court

went on to hold that

Courts should not be placed in a position where they are required to assess

the respective priorities of the government of the day. It must, however,

consider the economic requirements of remediation in the context of the

overall income of the defendant. When a corporation seeks to claim an

inability to fully remediate a site, the Courts are not required to examine

the financial records to assess the appropriateness of the corporation’s

expenditures. It can, however, require financial context to determine the

issue.

I do not find it necessary to make determinations of fact with respect to

funding. Whether the requests for approval were being delayed, denied or

simply going through the process is not determinative. The Court must

look at the end result.

Although too much time had elapsed in fragmented studies of parts of the

property previously, as of 1993 the defendant had a detailed and planned

approach to the remediation of a complex site. The defendant proceeded

with minor but essential components of its plan pending the approval of

funding.83

The court concluded that on the basis of all the factors that needed to be

considered, the MOE had established on a balance of probabilities that it

was duly diligent in the charge period and the defendant was acquitted.

Courts have denied the defense of due diligence in cases where the

defendant took a calculated risk regarding the possibility of a s. 36(3)

violation. For example, in one case, a municipality commissioned a sewage treatment plant and to save money, the plant was designed to discharge directly to a watercourse in an emergency. When an emergency

occurred and sewage was discharged to a stream, the municipality was

found guilty despite showing due diligence in emergency response procedures and plant maintenance.84

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 33

82. Hamilton Wentworth (Regional Municipality) v. Ontario (Minister of Transportation)

(1991), 2 O.R. (3d) 716 (Div. Ct.), leave to appeal to Ont. C.A. denied, [1991] O.J. No.

3201 (12 August 1991) Doc. A-48/91 cited in Deloro, ibid. at para. 182.

83. Ibid. at paras. 182-184.

84. R. v. North Vancouver (District)(1982), 3 F.P.R. 233 (B.C. Prov. Ct.), affirmed (1983), 3

F.P.R. 249 (B.C. Co. Ct.), which was affirmed (1984), 3 F.P.R. 491 (B.C.C.A.).
5.2.3.3.2 Defenses Based on Actions of the Regulator

Other defenses and excuses are available under the Common Law.

These include but are not limited to “officially induced error” and

“abuse of process,” both of which exist to prevent someone from being

convicted for action or inaction that, at the time it occurred, appeared

(from the perspective of a reasonable person) to meet with government

approval. As stated above (s. 5.2.3.3), in its response to the submission,

Canada stated that officially induced error is one of the most common

defenses to charges under s. 36(3). Information on this defense is provided below, along with information on the defense of “abuse of process,” which is also based on actions of the regulator. The facts at the

Britannia Mine (see ss. 5.4, 5.5 and 5.6, below), together with the information provided below, are relevant to a consideration of whether the

defense of officially induced error or abuse of process might be available

were charges to be laid in connection with ongoing violations of s. 36(3)

at the Britannia Mine.

A defendant must satisfy four conditions to invoke the defense of

officially induced error of law successfully.85 It must have considered its

legal position and sought advice about it; consulted an appropriate official; obtained erroneous advice that was reasonable in the circumstances; and relied on that advice. The Supreme Court of Canada has

held that because it functions as an “excuse” and not as a “justification”

for wrongful behavior—and therefore results in a stay of proceedings

rather than an acquittal—an officially induced error of law argument

“will only be successful in the clearest of cases.”86

Depending on the circumstances, advice from provincial officials

regarding the requirements of a federal statute can provide a basis for a

defense of officially induced error, “[...] provided that a reasonable person would consider that particular government organ to be responsible

for the law in question. The determination relies on common sense

rather than constitutional permutations.”87

The existence of a permit or approval is sometimes invoked as providing the basis for a defense of officially induced error. In such cases the

defendant claims that it honestly, reasonably and mistakenly believed

that by complying with the permit, it was satisfying all requirements

under the law. In a 1998 report on the enforcement of s. 36(3) by Environ34 FACTUAL RECORD: BC MINING SUBMISSION

85. See R. v. Jorgensen, [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510, at paras. 25-38.

86. Ibid. at para. 38.

87. Ibid. at para. 31.
ment Canada, the House of Commons Standing Committee on Environment and Sustainable Development identified “government-induced

error” as a barrier to effective enforcement of federal legislation. The

Committee explained:

A further barrier to the effective enforcement of the federal legislation

occurs when authorizations or permits granted by another level of government conflict with the federal environmental legislation. These permits or authorizations might allow the release of pollutants into the

environment in amounts that would constitute an offence under a federal

law or regulation. Offenders, however, are not always prosecuted in such

cases because, by reason of the permit or authorization, they can raise the

defence of “government-induced error.” Since the chances of obtaining a

conviction in such cases are questionable, charges may not be laid in the

first place, or if they are laid, they may not be proceeded with, or again,

they may result in acquittal.88

The Committee then quoted the Head of the Inspections Section of the

Pacific and Yukon Region of Environment Canada, who provided the

Committee with several examples of failed prosecutions:

The first example was a private individual who basically created a landfill

on his property that ended up leaching into the most productive part of a

salmon-bearing stream. He dealt with civic officials, who eventually

brought in the provincial officials, and eventually I was called by the

mayor and we initiated an investigation. We dealt with almost three

months of trial and proved the offence technically, but the interference

and the conflicting information given by the other officials in the junior

levels of government created a situation called government-induced

error, and the judge made a decision that [the accused] had been duly diligent and that it was the confusion of the officials that related to that.89

The House of Commons Standing Committee recommended that Environment Canada take steps to make the regulated community aware of

its obligations under federal laws. Regarding the defense of officiallyinduced error, the courts have held that whether this defense will be successful depends on a consideration of all the factors that must be proved,

including that the defendant was duly diligent by making appropriate

inquiries.90

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 35

88. Canada, “Enforcing Canada’s Pollution Laws: The Public Interest Must Come

First!” (Report of the Standing Committee of the House of Commons on Environment and Sustainable Development, Charles Caccia, Chair) (Ottawa: Queen’s

Printer, 1998) at paras. 72 and 73.

89. Ibid.

90. See R. v. Northwest Territories (Commissioner) (1994), 15 C.E.L.R. (N.S.) 85

(N.W.T.S.C.), where the Town of Iqaluit was unsuccessful in arguing that its license
“Abuse of process” can be invoked by a defendant in cases where

entering a conviction would be unconscionable, risking bringing the

administration of justice into disrepute. This would be the case, for

example, if a person were charged with an offense after having been

assured that no enforcement action would be taken, or after having

agreed on a plan of remedial action and a timetable with the regulator

and having implemented the plan in accordance with the timetable.91

This remedy is also only available in the clearest of cases, and past

non-enforcement alone may not be enough, absent an express or implied

promise not to prosecute, to make this defense available. The Supreme

Court of Canada has stated that to amount to one of the clearest of cases,

there must be “overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice.”92

5.2.3.4 Court Orders Upon Conviction

The Fisheries Act gives the courts broad powers to issue orders

upon conviction, in addition to any punishment imposed (s. 79.2). A

court can order the convicted person to do or refrain from doing anything in order to prevent the continuation or repetition of the offense or

to remedy harm to fish or fish habitat resulting from the commission of

the offense, and it can secure compliance with this order by requiring

posting of a bond or payment of an amount of money into court. It can

order the convicted person to compensate the Minister of Fisheries and

Oceans for any remedial or preventive action taken by or on behalf of the

Minister as a result of the commission of the offense. Finally, it can

require the convicted person to report to the court on its activities following conviction and can set any other conditions it considers appropriate

to secure the person’s good conduct and to prevent repetitions of the

offense or commission of other violations of the Fisheries Act by that person. Violation of such an order makes the convicted person liable to the

punishment provided for the underlying offense (s. 79.6). Under the

Fisheries Act, money owed under court orders becomes a debt due to the

Crown (s. 79.4(1)).

Canada has stated that even if a conviction had been obtained

against CBE, “it would have been very unlikely that a court would have

36 FACTUAL RECORD: BC MINING SUBMISSION

under the Northern Inland Waters Act, which authorized it to “use waters,” covered

sewer discharges, since it was discharging sewage to waters not covered by the

license and in any event, nothing in the license exempted the town from complying

with the Fisheries Act.

91. Re Abitibi Paper Co. and the Queen (1979), 47 C.C.C. (2d) 487 (Ont. C.A.).

92. R. v. Power, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, at para. 12.
ordered the company to take measures to bring the site into compliance

because of its lack of resources.”93 Canada states that “[s]ince 1979, CBE

has derived its only income by renting houses situated on the site.”94 In

its response to the submission, Canada states “[i]n such an instance, the

environmental problem will not be resolved.”95

5.2.3.5 Injunctions

The Attorney General can apply for an injunction to enjoin anything punishable as an offense under s. 40 of the Fisheries Act, whether or

not a prosecution has been instituted (s. 41(4)).

5.2.3.6 Civil Suits for the Recovery of Remediation Costs

Once the elements of an offense can be established, the Fisheries Act

gives the Crown the right to institute a civil action for recovery of all

costs and expenses reasonably incurred by federal or provincial officials

to prevent, counteract, mitigate or remedy any adverse effects that result

or may reasonably be expected to result from the unauthorized deposit

of a deleterious substance or a serious and imminent danger thereof by

reason of any condition (s. 42(1)).

Canada has stated that, as an alternative to prosecution, Environment Canada might have carried out remediation at Britannia itself and

brought an action against CBE to recover its costs, but Environment Canada did not have funds available to undertake such remediation. In any

event, Canada has explained, the poor prospect of cost recovery would

have made it unlikely for Environment Canada to incur such costs.96

5.3 Policies Regarding Compliance Promotion and Enforcement

of s. 36(3) of the Fisheries Act at Abandoned Mines

In its February 2002 Request for Information,97 the Secretariat

stated that in preparing a factual record regarding the assertion that

Canada is failing to effectively enforce s. 36(3) of the Fisheries Act at the

Britannia Mine, the Secretariat would be gathering information “on

local, provincial or federal policies or practices (formal or informal)

regarding enforcement of, or ensuring compliance with, section 36(3) of

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 37

93. Facts on the Britannia Mine at 4.

94. Ibid.

95. Response at 15.

96. Facts on the Britannia Mine at 5.

97. Appendix 4 to the Factual Record at IV.4.
the Fisheries Act, specifically ones that might apply to acid mine drainage

from the Britannia Mine.” This section presents relevant information

gathered by the Secretariat.

As noted above (Section 5.2.3), the Fisheries Act provides for a range

of possible responses to alleged violations of s. 36(3), including information requests or orders by the Minister, prosecutions, court orders upon

conviction, injunctions, and civil suits for the recovery of remediation

costs. Also as noted above (s. 5.2.3), Canada has explained that prosecution and other remedies available under the Fisheries Act have not been

and are not a viable option at the Britannia Mine, because the limitation

period for prosecuting former owners and operators under the Fisheries

Act has expired, and because the current owner does not have the financial means to carry out court-ordered remediation.98

Canada has stated that despite the constraints with proceeding

with prosecutions under the Fisheries Act, Environment Canada and the

Department of Fisheries and Oceans have taken various other actions

since the 1970s to promote compliance with and enforce the Fisheries Act

at the Britannia Mine site.99 According to Canada, these actions have

included assessment and monitoring, public education, field and laboratory research, and maintaining effective partnerships with provincial

ministries to address the pollution problems.100 Canada has stated that

“[a]s contemplated by the Statement on Interjurisdictional Cooperation

on Environmental Matters, Environment Canada has, throughout this

period, provided technical advice and expertise to the Province of British Columbia to support the province’s enforcement efforts under the

[BC] Pollution Control Act and its replacement, the [BC] Waste Management Act.”101 This section of the factual record presents relevant information gathered by the Secretariat regarding the basis for the approach

taken by Environment Canada to promoting compliance with s. 36(3) at

the Britannia Mine. This information, together with information presented in s. 5.2, 5.4, 5.5 and 5.6, is relevant to a consideration of whether

Canada is failing to effectively enforce s. 36(3) at the Britannia Mine.

Subsections 5.3.1 and 5.3.2 describe how Environment Canada,

Fisheries and Oceans Canada, and the Department of Justice determine

the appropriate response to an alleged violation of the Fisheries Act, on

the basis of department policies. Under these policies, enforcement

action by federal authorities is seen as one of several types of actions con38 FACTUAL RECORD: BC MINING SUBMISSION

98. Response at 14-15; Facts on the Britannia Mine at 4-5.

99. Facts on the Britannia Mine at 5.

100. Ibid.

101. Ibid.
sidered appropriate to address a situation of non-compliance. Under

these policies, the action most likely to achieve the goal of compliance in

the shortest possible time and with no further occurrence of violations is

considered to be the appropriate action to take.

Subsection 5.3.3 provides relevant information regarding the basis

for Environment Canada’s decision to support provincial enforcement

efforts under provincial pollution legislation at Britannia as an alternative to direct enforcement of s. 36(3) by federal authorities against the

mine owner. Beginning with the 1990 Statement on Interjurisdictional

Cooperation on Environmental Matters, information is provided on the

evolution of federal/provincial/territorial efforts to streamline environmental protection, with particular reference to s. 36(3) and the mining sector.

In its response to the submission (see s. 3, above), Canada stated

“Canada approaches potential violations of the Fisheries Act in a systematic and predictable way,”102 and that “Canada’s actions with each

of these three abandoned mines [Mt. Washington, Britannia, and

Tulsequah Chief] and other mines clearly demonstrate a comprehensive

and productive strategy aimed at eliminating the discharge of deleterious substances and thereby achieving compliance with the Act.”103 Subsection 5.3.4 contains information relevant to the existence of such a

strategy as regards abandoned mines such as Britannia.

5.3.1 The Fisheries Act Habitat Protection and Pollution Prevention

Provisions Compliance and Enforcement Policy

By law, the federal Minister of Fisheries and Oceans is responsible

for the administration and enforcement of the Fisheries Act.104 However,

in 1978, the Prime Minister assigned to the Minister of the Environment

responsibility for administration and enforcement of s. 36(3) (formerly

subsection 33(2)). A 1985 Memorandum of Understanding (“MOU”)

between the Department of Fisheries and Oceans and Environment

Canada outlines the responsibilities of both departments for the administration and enforcement of the pollution prevention provisions of the

Fisheries Act.105

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 39

102. Response at 13.

103. Ibid. at 12.

104. Section 4(1)(a) of the Department of Fisheries and Oceans Act, R.S.C. 1985, c. F-15.

105. Memorandum of Understanding between the Department of Fisheries and Oceans

and the Department of the Environment on the Subject of the Administration of

Section 33 of the Fisheries Act signed at Ottawa, Ontario, 6 May 1985.
Under the MOU, Fisheries and Oceans Canada and Environment

Canada agree to cooperate and communicate openly and regularly on all

matters related to the administration of s. 36(3) (s. 1). At the regional

level, senior managers are responsible for consulting with one another

regarding, for example, major development projects; actions proposed

by agents of provincial governments; identification of fishery resource

or habitat information required to support protection actions; proposed

regulations and amendments to existing regulations; and annual program reviews (s. 2). They also make joint decisions on enforcement

actions (s. 4), but Fisheries and Oceans Canada reserves the right to take

action directly in circumstances where the fisheries resource is being

affected by the deposit of a deleterious substance and Environment Canada is unable or unwilling to take action (s. 8). Regional directors are

responsible for arbitrating any disagreements (s. 3), and any matters on

which there is no resolution at the regional level are submitted to the

assistant deputy ministers (Pacific and Freshwater Fisheries [1985 title],

Fisheries and Oceans Canada, and Environmental Protection Service,

Environment Canada (s. 5(a)). Assistant deputy ministers also discuss

proposed regulations and amendments thereto, and discuss national

policy issues of concern to both parties (s. 5(b), (c)).

Canada has explained that at Britannia, Environment Canada has

assumed the lead federal role pursuant to its responsibilities for the

administration of the pollution prevention provisions of the Fisheries

Act, and that Fisheries and Oceans Canada provided technical and scientific support to Environment Canada and conducted key research on the

environmental effects of the mine’s drainage.106

Fisheries and Oceans Canada and Environment Canada officially

issued a Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy (the “Compliance and

Enforcement Policy”) in July 2001,107 although according to Canada,

Environment Canada has been working with a draft of the Compliance

and Enforcement Policy, including at Britannia, since at least 1998.108

Notable differences between the draft and final versions are identified

below. The Compliance and Enforcement Policy states that regulatory

40 FACTUAL RECORD: BC MINING SUBMISSION

106. Facts on the Britannia Mine at 5.

107. Policy at 3. In its 14 May 2003 comments on the accuracy of the Draft Factual Record,

Canada attached a copy of the Compliance and Enforcement Policy dated November 2001. On 4 June 2003, Environment Canada confirmed that there are no substantive differences between the July 2001 and November 2001 versions of the

Compliance and Enforcement Policy.

108. Response at 13.
officials will secure compliance with the habitat protection and pollution prevention provisions of the Fisheries Act through compliance promotion and enforcement.109 Under the Compliance and Enforcement

Policy, enforcement is achieved through the exercise or application of

the following powers granted under legislation: inspections; investigations; issuance of warnings, directions by fishery inspectors, authorizations, and Ministerial orders; and court actions, such as injunctions,

prosecution, court orders upon conviction, and civil suits for recovery of

costs. Compliance is promoted through communication and public

information; public education; consultation with stakeholders; and

technical assistance.

The Compliance and Enforcement Policy sets out guiding principles for the application of the habitat protection and pollution prevention provisions of the Fisheries Act.110 The guiding principles provide

that compliance with the Act and accompanying regulations is mandatory. Enforcement action will be fair, predictable and consistent, using

rules, sanctions and processes securely founded in law. Enforcement

personnel will administer the statutory provisions and accompanying

regulations with an emphasis on preventing harm to fish, fish habitat or

human use of fish caused by physical alteration of fish habitat or pollution of waters frequented by fish. Priority for action to deal with suspected violations will be guided by degree of harm or risk of harm to

fish, fish habitat or human health, and whether or not the alleged offense

is a repeat occurrence. Enforcement personnel will take action consistent

with the Compliance and Enforcement Policy, and the public will be

encouraged to report suspected violations. Compliance will be promoted through communication with stakeholders.

Under “Responses to Alleged Violations,” the Compliance and

Enforcement Policy states that “[e]nforcement measures are directed

towards ensuring that violators comply with the Fisheries Act within the

shortest possible time and that violations are not repeated.”111 The

Compliance and Enforcement Policy provides that

[e]nforcement personnel will respond to suspected violations. They will

take into account the harm or risk of harm to fish, fish habitat and/or

human use of fish. If they determine that there is sufficient evidence a violation has occurred, they may take enforcement action.112

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 41

109. Policy at 5.

110. Ibid. at 6.

111. Policy at 20.

112. Ibid.
The draft of the Compliance and Enforcement Policy that was in circulation at Environment Canada in 1998, at the time of the filing of the BC

Mining submission, states “[i]f they determine that there is sufficient

evidence a violation has occurred, they will take enforcement action”

[emphasis added].113

If enforcement personnel are able to substantiate that an alleged

violation has occurred and there is sufficient evidence to proceed, the

Compliance and Enforcement Policy states that they will decide on an

appropriate action, taking into account certain criteria.114 The Compliance and Enforcement Policy lists these criteria under three headings:

nature of the alleged violation; effectiveness in achieving the desired

result with the alleged violator; and consistency in enforcement.

In considering the nature of the violation, enforcement personnel

will consider the seriousness of the environmental damage; the intent of

the alleged violator; whether it is a repeat occurrence; and whether there

were attempts by the alleged violator to conceal information or otherwise circumvent the objectives and requirements of the habitat protection and pollution prevention provisions.115

For the purpose of determining the effectiveness of a response in

achieving the desired result with the alleged violator, the Compliance

and Enforcement Policy states that

[t]he desired result is compliance with the Act in the shortest possible time

and with no further occurrence of violations, in order to protect fish and

fish habitat and human use of fish.116

Factors to be considered are the alleged violator’s history of compliance;

willingness to cooperate with enforcement personnel; and the existence

of enforcement actions by other federal or provincial/territorial authorities.117 At a June 2002 meeting with the Secretariat, Environment Canada

and Fisheries and Oceans Canada officials from the Pacific and Yukon

Region explained that after considering these factors, they decided that

supporting provincial enforcement efforts under the BC Waste Management Act was deemed to be the appropriate action to take in order to

achieve the desired result of compliance with s. 36(3) at Britannia in the

shortest possible time and with no further occurrence of violations.

42 FACTUAL RECORD: BC MINING SUBMISSION

113. Response, Appendix 4.

114. Policy at 20.

115. Ibid.

116. Ibid.

117. Ibid.
Specifically, federal officials noted that provincial legislation allowed

the province to recover remediation costs from past owners and operators (the current owner is insolvent), while the Fisheries Act contains no

such provisions.

Under the Compliance and Enforcement Policy, enforcement personnel also aim to achieve consistency in their responses to alleged violations. Consequently, the Compliance and Enforcement Policy states

that they will consider how similar situations in Canada are being or

have been handled when deciding what enforcement action to take.118

At a June 2002 meeting with the Secretariat, federal officials explained

that an objective at Britannia was to avoid getting involved in litigation,

because this would result in valuable resources being shifted away from

solving the environmental problem at Britannia. They mentioned that at

another contaminated site in BC, the federal government had spent millions in litigation. It appears that federal officials were referring to the

Beazer site, where the Canadian National Railway has been named as a

party responsible for clean-up under the BC Waste Management Act.119

The Compliance and Enforcement Policy lists a range of responses

available to deal with alleged violations: warnings; directions by fishery

inspectors; orders by the Minister; injunctions; and prosecutions.120

5.3.2 The Decision to Prosecute

Under the Compliance and Enforcement Policy (see above, s.

5.3.1), prosecution is the preferred course of action where evidence

establishes that

the alleged violation resulted in risk of harm to fish or fish habitat; the

alleged violation resulted in harmful alteration, disruption or destruction

of fish habitat (not authorized by DFO); the alleged violator previously

received a warning for the activities and did not take all reasonable measures to stop or avoid the violation; the alleged violator had previously

been convicted of a similar offence.

As stated earlier (see above, s. 5.2.2), s. 36(3) of the Fisheries Act does not

require proof of harm to fish or fish habitat in establishing the elements

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 43

118. Ibid. at 21.

119. See Canadian National Railway Company v. Regional Waste Manager (Beazer East Inc.

and Atlantic Industries Ltd., Third Parties) (24 May 2002), Environmental Appeal of

British Columbia 2001-WAS-025; online: Environmental Appeal Board of British

Columbia <http://www.eab.gov.bc.ca/waste/Wastsm02.htm> (date accessed: 10

October 2002).

120. Policy at 21.
of the offense. All that is required is proof that the substance that was

deposited is inherently deleterious to fish. Consequently, it appears that

under the Compliance and Enforcement Policy, prosecution is precluded, or at least unlikely, for violations in which a deleterious substance was deposited but without resulting in harm or risk of harm to

fish or fish habitat. Information obtained by the Secretariat regarding the

Britannia Mine shows that mine effluent is harming fish habitat.121 The

Secretariat obtained no information indicating that Environment Canada has ever sent a warning letter to, or recommended laying charges

against, owners or operators of the Britannia Mine in regard to facts consistent with ongoing violations of s. 36(3).

The Compliance and Enforcement Policy states that prosecution

will always be pursued where evidence establishes that the

alleged violation was deliberate; the alleged violator knowingly provided

false or misleading information to enforcement personnel; the alleged violator obstructed enforcement personnel in the carrying out of their duties

or interfered with anything seized under the Act; the alleged violator concealed or attempted to conceal or destroy information or evidence after the

alleged offence occurred; or the alleged violator failed to take all reasonable measures to comply with a direction or an order issued pursuant to

the Act.

In the case of Britannia, actions taken by the present owner since 1979

have been consistent with the above criteria for pursuing prosecution under the Compliance and Enforcement Policy. These actions are

described in detail in s. 5.5, below. They include reneging on a contractual obligation toward the previous owner (undertaken at the time

of purchasing the property) to comply with all future environmental

requirements of government authorities at the site; selling company

assets without using profits to comply with an effluent remediation

order; distributing false or misleading information;122 obstructing pro44 FACTUAL RECORD: BC MINING SUBMISSION

121. “Effect of an Abandoned Mine on the Nearshore Ecosystem, Britannia Beach,”

online: Fisheries and Oceans Canada <http://www.pac.dfo-mpo.gc.ca/oceans/

meq/MEHSD/mines.htm> (date accessed: 10 October 2002).

122. See letter from Eric Partridge, Director of Waste Management, MWLAP to CBE et al.

(12 February 2002) Re: Britannia Mine Remediation—Copper Beach Estates Ltd.

Alternative Remediation Plan: “[...] I also wish to provide clarification on a matter

related CBE’s plan. The use of the Provincial logo and the Ministry of Water, Land

and Air Protection title on CBE’s plan was without prior consent by the regulator.

My staff and I were not involved or consulted in the development of the plan. I also

understand that the Provincial proponent, under the direction of Jim McCracken,

was not involved in the preparation of the plan. Therefore, I have requested CBE,

and CBE has agreed, to distribute a revised report cover with reference to the

Ministry of Water, Land and Air Protection and the Province of British Columbia
vincial remediation efforts by denying access to the site;123 and appealing decisions of the provincial environmental regulator allowing

provincial government remediation activities to go forward at the

site.124

In any prosecution, the Attorney General must approve the laying

of charges. It does so based on consideration of two factors: whether the

evidence is sufficient to justify the institution or continuation of proceedings, and if so, whether the public interest requires a prosecution to

be pursued.125 Under Department of Justice policy, it is not the rule that

all offenses for which there is sufficient evidence to prosecute must be

prosecuted. Prosecution should be pursued only when it is required, in

the public interest, in light of the provable facts and “the whole of the

surrounding circumstances.”126

Under Department of Justice policy, where the alleged offense is

not so serious as plainly to require criminal proceedings, the Crown

should consider public interest factors, which may include, among others:

• the seriousness of the offense;

• significant mitigating or aggravating circumstances;

• the degree of staleness of the offense;

• the availability and appropriateness of alternatives to prosecution, particularly in the case of regulatory offenses;

• the prevalence of the offense and the need for general and specific deterrence;

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 45

removed.” See also below, s. 5.5.3 and Appendix 7, reference to fraudulent letter

(Errington: 10/17/97).

123. Letter from Eric Partridge, Director of Waste Management, MWLAP to CBE et al.

(13 March 2002) Re: Approval for the Discharge of Effluent to Howe Sound from

Remediation Activities at the Britannia Mine Site, Britannia Beach, B.C.

124. See, for example, Britannia Mines and Reclamation Corp. v. Director of Waste Management (Province of British Columbia, Third Party), (17 September 2002) British Columbia

Environmental Appeal Board 2002-WAS-008(a), online: British Columbia Environmental Appeal Board <http://www.eab.gov.bc.ca/waste/Wastsm02.htm> (date

accessed: 10 October 2002).

125. Canada, Federal Prosecution Service Deskbook, Part V “Proceedings at Trial and on

Appeal,” Chapter 15 “The Decision to Prosecute” (Ottawa: Justice Canada, 2000)

[hereinafter “The Decision to Prosecute”] at s. 15.2.

126. Ibid. at 15.3.2.
• the likely length and expense of a trial and the resources available to conduct the proceedings;

• the likely sentence in the event of a conviction;

• in the case of regulatory offenses, consideration of how the regulatory purpose of the statute might best be achieved.

In respect of regulatory offenses, such as violations of s. 36(3),

Department of Justice policy states that

[...] it is appropriate for Crown counsel to consider the views of the investigating agency in considering whether prosecution is warranted. [...] Consideration of what the public interest requires will of necessity require

consideration of how the regulatory purpose of the statute might best be

achieved.127 If, for example, the relevant regulatory authority has a mechanism for dealing with the alleged offender such as a compliance program,

Crown counsel should consider whether an alternative such as this might

better serve the public interest than prosecution.128

Information regarding such programs is provided below, in s. 5.3.4.

Canada has stated that at one time, Environment Canada considered bringing an action in public nuisance against the current owners of

the Britannia Mine, but that the Department of Justice “did not recommend this course of action.”129 Canada provided no additional information on this matter.130

5.3.3 Streamlining Environmental Protection

Federal officials from the Pacific and Yukon Region of Environment Canada and Fisheries and Oceans Canada have explained to the

Secretariat that in British Columbia, there is an informal, “one-window”

approach to administering s. 36(3). Under this approach, the regulated

46 FACTUAL RECORD: BC MINING SUBMISSION

127. The Fisheries Act briefly contained a section setting out its purposes, including “[...]

to provide for the conservation and protection of fish and waters frequented by

fish,” but the relevant section was repealed as soon as it was enacted; S.C. 1985, c. 31,

ss. 2.1(a), 6.

128. The Decision to Prosecute at 15.3.2.1, “The “Public Interest” in the Regulatory Context.”

129. Facts on the Britannia Mine at 5.

130. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “As a matter of course, legal advice provided by the Department of Justice to

other federal government departments is not released outside the federal government. However, in this case as noted earlier, Canada was of the view that the federal

Crown had no standing to bring such an action.”
community deals primarily with provincial officials, who in turn consult

federal officials on matters related to enforcement of s. 36(3).131 This has

been the case at Britannia (see s. 5.5, below).132

Since the early 1990s, federal and provincial environment ministers have worked to harmonize the development and implementation of

environmental legislation in Canada, including s. 36(3) of the Fisheries

Act and regulations adopted pursuant to s. 36(4) of the Fisheries Act. The

process has been informed by input from standing committees of the

House of Commons, the Auditor General, the Commissioner for the

Environment and Sustainable Development, industry, and other stakeholders.

This subsection provides relevant information regarding this

harmonization process, which provides context for Environment

Canada’s decision to support provincial enforcement efforts under

provincial pollution legislation at Britannia as an alternative to direct

enforcement of s. 36(3) by federal authorities against the mine owner.

5.3.3.1 Federal-Provincial Harmonization

In 1990, the Canadian Council of Ministers of the Environment

(“CCME”) issued a Statement of Interjurisdictional Cooperation on Environmental Matters [“Statement”]. Under the Statement, the federal and

provincial Environment Ministers agreed, among other things, to harmonize environmental legislation, policies and programs and their

implementation, and to develop bilateral accords and issue-specific

agreements to promote environmental cooperation between and among

governments, with the objective of clarifying responsibilities, improving efficiency and effectiveness of decision making and regulatory processes, and taking advantage of the respective strengths and capabilities

of each jurisdiction. With respect to the Britannia Mine, Canada has

stated “[a]s contemplated by the Statement on Interjurisdictional Cooperation on Environmental Matters, Environment Canada has, throughout this

period [1970s-2002], provided technical advice and expertise to the

Province of British Columbia to support the province’s enforcement

efforts under the [BC] Pollution Control Act and its successor, the [BC]

Waste Management Act.”133 The information provided below, in conjunction with information provided in ss. 5.2, 5.4, 5.5 and 5.6, is relevant to a

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 47

131. Meeting at Pacific and Yukon Regional Headquarters, Environment Canada, North

Vancouver, 11 June 2002.

132. Ibid.

133. Facts on the Britannia Mine at 5.
consideration of whether federal-provincial cooperation has resulted in

effective enforcement of s. 36(3) at the Britannia Mine.

In 1994, pursuant to the Statement and under the authority of s. 5

of the Department of Fisheries and Oceans Act134 and s. 7 of the Department

of Environment Act,135 Fisheries and Oceans Canada and Environment

Canada concluded framework agreements with Alberta and Saskatchewan regarding the administration of the pollution prevention provisions of the Fisheries Act (including s. 36(3)). Each agreement set out

principles of cooperation and listed activities, such as monitoring,

inspection, and investigation and enforcement, in respect of which

the parties could enter into detailed collaborative arrangements. Both

agreements contain sub-agreements on inspections, investigations and

enforcement providing for, among other things, information-sharing,

coordinated inspections, the designation of a lead agency in joint investigations, the role of the supporting agency, and consultation on enforcement response. No such agreement exists for British Columbia.136

In December 1997, the House of Commons Standing Committee on

Environment and Sustainable Development issued a report entitled

“Harmonization and Environmental Protection: An Analysis of the

Harmonization Initiative of the Canadian Council of Ministers of the

Environment (CCME).”137 The report noted that in 1993, Canada’s Environment Ministers, acting through the CCME, had identified harmonization of environmental management in Canada as a top priority. Under

the direction of the CCME, a Canada-Wide Accord on Environmental Harmonization (the “Harmonization Accord”) was developed and given

approval in principle by the Environment Ministers in November 1996,

with final approval expected in early 1998. The Harmonization Accord

provided an umbrella for the negotiation of sub-agreements on various

48 FACTUAL RECORD: BC MINING SUBMISSION

134. R.S.C. 1985, c. F-15. “The Minister may, with the approval of the Governor in Council, enter into agreements with the government of any province or any agency

thereof respecting the carrying out of programs for which the Minister is responsible.”

135. R.S.C. 1985, c. E-10. “The Minister may, with the approval of the Governor in Council, enter into agreements with the government of any province or any agency

thereof respecting the carrying out of programs for which the Minister is responsible.”

136. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “No such agreement is presently in force for British Columbia, although the

Canada-BC Pulp and Paper Effluent Agreement was followed between 1994-1996.”

137. Canada, “Harmonization and Environmental Protection: An Analysis of the Harmonization Initiative of the Canadian Council of Ministers of the Environment”

(Report of the Standing Committee on Environment and Sustainable Development,

Charles Caccia, Chair) (Ottawa: Queen’s Printer, 1997) [hereinafter “Harmonization and Environmental Protection”].
matters such as environmental standards, environmental assessment,

and enforcement. The Committee reviewed the history of federal and

provincial involvement in the regulation of environmental matters in

Canada and invited submissions from the public regarding the draft

Harmonization Accord and three proposed sub-agreements.

Based on information gathered, the Committee concluded that

there did not exist sufficient evidence of federal/provincial overlap and

duplication in environmental regulation to allow for an assessment of

whether the Harmonization Accord would actually result in greater efficiency or cost savings. The Committee expressed concern that implementation of the Harmonization Accord could result in a net decrease in

environmental regulation and enforcement, and weaker environmental

protection. It stated that transfers of environmental protection duties

and powers to the provinces required full consideration of accountability issues and funding implications, and that transfer mechanisms

needed to include detailed decision-making and dispute resolution procedures. The Committee cautioned that budget cuts by either order of

government could put the quality of the environment and human health

in jeopardy. The Committee also concluded that Aboriginal rights,

and Canada’s internal and international trade commitments, should be

given careful consideration in the context of the harmonization initiative.

The Secretariat considered whether there is evidence of overlap

and duplication in the content and/or enforcement of federal and provincial effluent criteria at Britannia. Information obtained by the Secretariat regarding the Britannia Mine does not show any overlap or

duplication between federal and provincial effluent criteria and enforcement thereof (see s. 5.5, below). Under a long-standing working arrangement between Environment Canada and BC Environment, provincial

instruments such as effluent remediation orders and effluent discharge

permits have been the vehicle for enforcing s. 36(3) against current and

past owners at Britannia. Under the WMA, the province has discretion

in determining appropriate effluent standards for Britannia based on

impacts of Britannia effluent to the receiving environment. In 1999,

the province consulted with Environment Canada and Fisheries and

Oceans Canada regarding standards required to prevent s. 36(3) violations at Britannia. The province subsequently incorporated these standards into an effluent discharge permit for the mine.138 Before 1999, the

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 49

138. See e.g. recommendations of Environment Canada for requirements of 1999 effluent discharge permit for Britannia (see below, Appendix 7 (McCandless: 05/19/

99)) and Remediation Order OE-16097 as Amended January 7, 2000, under the

Provisions of Section 27.1 of the Waste Management Act—Britannia Mine Site; online
mine had no provincial effluent discharge permit, although it was

ordered to apply for one in 1974 and again in 1993. Provincial effluent

remediation orders issued against the owners of the Britannia Mine

between 1974 and 1993 did not require compliance with either provincial or federal effluent standards.

Because the current owner of the Britannia Mine has been insolvent since 1994, government officials at Britannia have sought to hold

past owners of the mine liable for achieving compliance with applicable

effluent standards at the site. This has never been possible under the

Fisheries Act. In 1997, amendments to the WMA contaminated sites provisions allowed the province to name past owners as persons potentially

responsible (“PRPs”) for cleaning up the site. In 1998, the province began

naming parent companies of past owners of the mine as PRPs in connection with Britannia. Although this process did not lead to any of these

PRPs being added to the provincial Britannia effluent remediation

order, the province was successful in obtaining $30M in remediation

funding from these PRPs. Amendments to the WMA in 2002 have likely

made it impossible, once again, to enforce provincial effluent standards

against past owners of the Britannia Mine under the WMA (see s. 5.6,

below).

On the issue of funding mentioned in the December 1997 “Harmonization and Environmental Protection” report of the House of

Commons Standing Committee on Environment and Sustainable Development, the Secretariat asked federal officials in June 2002 whether there

existed funding arrangements between Canada and British Columbia

for the implementation of the “one-window approach” (mentioned

above) to administration of s. 36(3) at Britannia. The Secretariat was told

that there are no such arrangements.139 Earlier in 2002, federal Environ50 FACTUAL RECORD: BC MINING SUBMISSION

MWLAP <http://wlapwww.gov.bc.ca/epd/epdpa/contam_sites/legal_

decisions/orders/Britannia/oe16097_amended_order.html> (date accessed: 10

October 2002). Federal input on effluent standards is incorporated into the effluent

permit by BC Environment, but the permit contains a disclaimer warning the permit holder that the permit does not provide a guarantee of compliance with the Fisheries Act. This disclaimer is consistent with the 1998 recommendations of the House

of Commons Standing Committee on Environment and Sustainable Development,

in its report entitled “Enforcing Canada’s Pollution Laws: The Public Interest Must

Come First!” (see infra, note 142). Recommendation No. 8(b) of the report: “the Minister of the Environment [should] negotiate agreements with the territorial, Aboriginal, and municipal governments, requiring that they incorporate, in the permits

that they issue, an express notification that all federal environmental laws and regulations continue to apply and that compliance with such laws remains mandatory,

notwithstanding any of the terms of the permit.”

139. Meeting at Pacific and Yukon Regional Headquarters, Environment Canada, North

Vancouver, 11 June 2002.
ment Minister David Anderson is reported to have announced that “[i]n

response to deep budget cuts announced by the British Columbia government January 17 [...] the federal government was ready to assume

some of the responsibilities for environmental protection should the

British Columbia provincial government find it necessary to pass on

those tasks to their federal counterpart.”140

In its December 1997 report, the House of Commons Standing

Committee on Environment and Sustainable Development recommended delaying ratification of the Harmonization Accord until the

Committee’s concerns and recommendations were addressed, and until

all proposed sub-agreements had been made available for public consultation. Specifically, the Committee recommended that the Auditor

General of Canada conduct an audit of the effectiveness of bilateral environmental agreements such as those concluded with Alberta and Saskatchewan for the administration of the pollution prevention provisions

of the Fisheries Act. Notwithstanding these recommendations, in January 1998 Environment Ministers from across Canada, except Quebec,

signed the Harmonization Accord along with three sub-agreements on

inspections, environmental assessment, and standards.

In May 1998, the House of Commons Standing Committee on

Environment and Sustainable Development issued a report entitled

“Enforcing Canada’s Pollution Laws: The Public Interest Must Come

First!”141 The report made many recommendations related to enforcement of the Canadian Environmental Protection Act (“CEPA”) and the

pollution prevention provisions of the Fisheries Act. The report recommended, among other things, disclosure to the Committee of financial

information related to enforcement budgets; review of the effectiveness

of the enforcement program; review of statutes and regulations to

ensure their enforceability; notifying the regulated community of regulatory requirements; separation of enforcement functions from managerial functions, with regional enforcement operations to report to an

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 51

140. Environmental Dimensions, 25 January 2002, ISSN 1187-5828, “Federal Environment

Minister Says Sharp Budget Cuts by BC Government Could See Increased Federal

Government Role for Environmental Protection” at 4-5. The article reports that the

operating expenditures of the BC Ministry of Water, Land and Air Protection “will

be cut by 24% over the next three years to $127.007 million in fiscal 2004/05, down

from $214.266 million in fiscal 2001/02. Staff will be cut by 31% from 1,298 to 897

over the same period.”

141. Canada, “Enforcing Canada’s Pollution Laws: The Public Interest Must Come

First!” (Report of the Standing Committee on Environment and Sustainable

Development, Charles Caccia, Chair) (Ottawa: Queen’s Printer, 1998) [hereinafter

“Enforcing Canada’s Pollution Laws”].
independent, centralized enforcement agency; development of an

enforcement and compliance policy for the pollution prevention provisions of the Fisheries Act; and ensuring that the federal government

retains full authority and accountability under enforcement agreements

with other governments. The report also recommended that the Minister of the Environment seek, and that the Government of Canada grant,

more resources to ensure proper enforcement of legislation by Environment Canada.

In her response to the report, the federal Minister of the Environment addressed each recommendation made by the Committee.142 The

Minister stated that Environment Canada began an internal review to

strengthen its enforcement program in March 1998, resulting in an

“Enforcement Action Plan” which apparently addressed most of the

Committee’s recommendations, and the Minister stated that Environment Canada would keep the Committee informed on the progress of

the enforcement review through regular reports. The Minister stated

that an enforcement and compliance policy for the fish habitat protection and pollution prevention provisions of the Fisheries Act would be in

place by the end of 1998.143 In response to the recommendation that more

resources be allocated to enforcement, the Minister stated

[t]he issue of enforcement capacity and the resources devoted to the

Department’s enforcement program have been the subject of intensive

internal and external review.

Environment Canada as part of the enforcement review process has initiated a comprehensive assessment to determine the level and allocation of

funding required to ensure the appropriate ongoing enforcement of pollution laws. The first step in this assessment is a detailed analysis of the

potential benefits associated with various levels of effort. Consideration of

any additional resources for enforcement would only take place after completion of the assessment. The Government will ensure an appropriate

level of resources is allocated to the enforcement program.144

52 FACTUAL RECORD: BC MINING SUBMISSION

142. Canada, “Enforcing Canada’s Pollution Laws: The Public Interest Must Come First!

– The Government Response to the Third Report of the Standing Committee on

Environment and Sustainable Development” (tabled in the House of Commons by

The Honourable Christine Stewart, Minister of the Environment) (Ottawa: Queen’s

Printer, 1998) [hereinafter “1998 Government Response”].

143. A draft policy was already in circulation in 1998 (see s. 3, above). The policy was officially released by Environment Canada and Fisheries and Oceans Canada in July

2001 (see s. 5.3.1, above).

144. 1998 Government Response at 15. See also Canada, Integrated Risk Management

Framework (Ottawa: Treasury Board Secretariat, 2000), and Canada, A Canadian Perspective on the Precautionary Principle – Proposed Guiding Principles (Ottawa: Government of Canada, 2001).
This approach to enforcement is consistent with Canada’s Integrated Risk

Management Framework, which encourages government departments to

take a strategic approach to resource allocation.145

The Government’s response included requested financial information regarding Environment Canada’s enforcement program (excluding

expenditures for compliance promotion) for 1993/4-1998/9, broken

down by region. In the Pacific and Yukon Region, human resources

remained constant over that period, but the operations budget

decreased, as did capital expenditures: there were eight inspectors, three

investigators, and three chiefs, with approximately $900,000 per year

expended in salaries, $350,000 per year expended on operations and

maintenance (in 1998-1999, the last year for which information was

provided, this figure dropped to $195,000), and capital expenditures

ranging from $31,000 to $170,000 per year.146 Except as specifically mentioned below, the Secretariat obtained no additional information on

the results of Environment Canada’s review of its enforcement

programme.147

In February 1998, pursuant to the recommendations of the December 1997 report of the House of Commons Standing Committee on

Environment and Sustainable Development, the Commissioner of the

Environment and Sustainable Development of Canada (“CESD”)

agreed to assess the operation of equivalency and administrative agreements entered into by the federal government and the provinces under

CEPA and the Fisheries Act. The CESD proposed to evaluate such agreements on the assumption that they would: seek to protect the environment while decreasing costs to taxpayers; hold parties accountable, for

example through audit requirements; provide for regular reporting

between governments; include a risk analysis prior to execution; contain

a plan to resume federal responsibilities if necessary; reflect a clear

understanding of who is responsible for what; and provide for performance evaluation. The audit covered seven bilateral agreements,

including the administrative agreements concluded by Fisheries and

Oceans Canada and Environment Canada with Saskatchewan and

Alberta in 1994 for the control of deleterious substances under the Fisheries Act.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 53

145. Ibid. See online: Treasury Board of Canada Secretariat <http://www.tbs-sct.

gc.ca/pubs_pol/dcgpubs/RiskManagement/rmf-cgr01-1_e.html#Integrating>

(date accessed: 10 October 2002).

146. 1998 Government Response at 1 and Appendix A.

147. See supra, note 21.
The CESD audit report, issued in 1999, made several recommendations for improving the design and implementation of the agreements,

in particular to enable the federal government to account for how provinces spend federal transfer funds and results achieved. Environment

Canada responded by pointing out that the agreements reviewed by the

CESD pre-dated the 1998 Harmonization Accord, and that the Accord

addressed management concerns identified by the CESD, including

accountability mechanisms and reporting requirements. Fisheries and

Oceans Canada responded by committing to include Environment Canada reports on enforcement of s. 36(3) and implementation of the administrative agreements in its annual report to Parliament on administration

of the Fisheries Act.148

At the time of writing this factual record, in October 2002, the latest

available annual report on the administration and enforcement of the

habitat protection and pollution prevention provisions of the Fisheries

Act is for the period ending 31 March 2000. In that report, aquatic effects

investigations carried out by DFO at Britannia, as well as DFO participation in public consultations at Britannia and DFO review of provincial

permits for Britannia, are described in Section 2.5 entitled “Scientific

Support.” “Scientific Support” is listed in the report as a key activity for

habitat management in Canada.149 It combines “Scientific Research” and

“Habitat Monitoring” strategies adopted by DFO under its 1986 Policy

for the Management of Fish Habitat.150

A sub-agreement on inspections and enforcement (that would

revoke the 1998 inspections sub-agreement referred to above) was

endorsed by the CCME Council of Ministers at a meeting in Winnipeg

on 30 April–1 May 2001. The Inspections and Enforcement SubAgreement (the “Sub-Agreement”) sets out a framework for negotiating

federal/provincial agreements on inspections and enforcement of envi54 FACTUAL RECORD: BC MINING SUBMISSION

148. The latest available annual report on the administration and enforcement of the

habitat protection and pollution prevention provisions of the Fisheries Act is for the

period ending 31 March 2000 (see infra, note 149). In that report, aquatic effects

investigations carried out by DFO at Britannia, as well as DFO participation in public consultations at Britannia and DFO review of provincial permits for Britannia are

described in Section 2.5 entitled “Scientific Support.” The report makes no mention

of EC activities at Britannia.

149. Canada, Annual Report to Parliament on the Administration and Enforcement of the Fish

Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (For the

period of April 1, 1999 to March 31, 2000) (Ottawa: DFO, 2001) at Figure A.2.2.

150. The list of strategies is as follows: Protection and Compliance (Strategy 1); Integrated Resource Planning (Strategy 2); Scientific Research (Strategy 3); Public Consultation (Strategy 4); Public Information and Education (Strategy 5); Cooperative

Action (Strategy 6); Habitat Improvement (Strategy 7); and Habitat Monitoring

(Strategy 8).
ronmental protection laws, and it provides guidance on the respective

roles of the federal government and the provinces under such agreements.

Under the Sub-Agreement, federal inspection and enforcement

functions include international borders and obligations; transboundary

domestic issues; federal lands and facilities; products/substances in

Canada-wide trade and commerce; and other matters specific to the

federal government. Provincial inspection and enforcement functions

include industrial and municipal facilities and discharges, application of

laws on provincial and territorial land, waste disposal and destruction,

and other matters specific to provincial and territorial governments. The

Sub-Agreement provides that in certain instances, these functions may

be varied based on a “best-situated assessment,” as per listed criteria,

including past practice; available resources; scientific and technical

expertise and capacity; and scale, scope and nature of the environmental

issue. Each government commits to maintaining an inspection and

enforcement capacity, despite any agreements, and to ensuring that

such agreements make adequate provision for, among other things,

coordination of training and other procedures; and resource implications. At Britannia, federal and provincial officials have implemented

this agreement on an ad hoc basis.

A document entitled “The Changing Face of Enforcement,” posted

on the Environment Canada web site in 1999, suggests that the shift in

federal enforcement focus toward “federal facility enforcement” pursuant to the federal/provincial harmonization process and as contemplated by the Sub-Agreement “meant that pressure was exerted to

temper classical enforcement responses to violations with compliance

promotion and other compliance assurance tools.”151 This is particularly

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 55

151. The document states “[m]ore recently, political pressure for constitutional reform

in Canada, has resulted in a shift of emphasis for the Environmental Protection Service away from direct intervention in domestic industry towards more activity on

federal facilities, aboriginal lands and transboundary issues especially international commerce. This “harmonization,” while in most cases not supported by formal federal/provincial agreements, saw a general shift of domestic environmental

enforcement responsibilities toward the provinces. The forces driving change in the

Environmental Protection Service were pushing the department to simultaneously

1. examine ways to improve efficiencies for delivery on heightened expectations

with static resources; 2. to shift emphasis from a reactive, domestic enforcement

program to an anticipatory, international program. In addition, the emphasis on

federal facility enforcement meant that pressure was exerted to temper classical

enforcement responses to violations with compliance promotion and other compliance assurance tools. The regional structure of the Environmental Protection Service made planning for change difficult. The differing priorities of the regions,

organizational structures and resource levels and absence of centralized management mitigated against common solutions. [...] The changes implemented by the
relevant in the context of mine sites, because when these sites are abandoned, title usually reverts to either the Federal Crown or the Provincial

Crown. Consequently, for example, Indian and Northern Affairs Canada is potentially liable for violations of s. 36(3) occurring at abandoned

mines in the north of Canada. Environment Canada indicated in October

2002 that it does not intend to adopt regulations under CEPA to force

federal government departments to clean up federal contaminated

sites.152

In response to the 1998 recommendation by the House of Commons Standing Committee on Environment and Sustainable Development, that Environment Canada ensure the “enforceability” of its

regulations, Environment Canada created a “Regulations and Strategies” division within its Enforcement Office in Ottawa.153 This division

is developing an enforcement strategy for the new MMER (see above,

s. 5.2.2).154 It appears that the possibility of including a strategy for

enforcing s. 36(3) at thousands of mines not covered by the MMER, such

as Britannia, has been ruled out.155 The Secretariat was not able to obtain

56 FACTUAL RECORD: BC MINING SUBMISSION

Environment Canada Enforcement Program can be categorized in two approaches.

The “Project Management Approach,” manifested as Action Plans, identified particular problem sectors, developed enforcement strategies, dedicated resources,

established and strengthened external relationships with relevant agencies, and

coordinated national activities. “Organization Efficiency” involved integrating the

Environmental Protection and Wildlife Enforcement programs. [...] Implementation of selected changes is still ongoing. Due to contrasts between regions [...] each

region adopted its own “home-grown” combination of the options.”

152. Canada, 2002 Report of the Commissioner for the Environment and Sustainable Development, Chapter 2 “The Legacy of Federal Contaminated Sites” at 2.71: “Recommendation. ‘Environment Canada should develop a clear, mandatory requirement for

federal organizations to clean up or manage their contaminated sites.’ [...] Environment Canada’s response. ‘The Department does not accept this recommendation at

this time. It does not propose to develop a mandatory instrument under the Canadian Environmental Protection Act (CEPA) at this time. Environment Canada views

Treasury Board Policies [see below, s. 5.3.4.1] as mandatory. Departments are making progress and significant investments are being made. The Department will continue to monitor progress on the implementation of the Treasury Board policy and

will explore the development of CEPA instruments.’”

153. Telephone conversation with Patrick Hollier, Chief, Regulations and Strategies,

Environment Canada, 28 August 2002. The enforcement office of Environment

Canada located in Ottawa has no authority over enforcement operations in the

regions.

154. Telephone conversation with Yves Corriveau, Senior Advisor, Regulations and

Strategies, Environment Canada, 4 September 2002.

155. Ibid. At the 2001 annual meeting of the federal/provincial “Canadian Environmental Law Enforcement Association” chaired by Environment Canada, recommendations were apparently made regarding enforcement of s. 36(3) at abandoned mines

for consideration by those responsible for approving the MMER enforcement strategy; telephone conversation with Ken Wile, Head, Inspections, Pacific and Yukon

Region, Environment Canada, 29 July 2002.
additional information on this topic. It appears that in the absence of

such a strategy, abandoned mines are inspected as part of Environment

Canada’s overall inspection plan, which appears to shift emphasis, from

year to year, between sites that are subject to regulations, such as the

MMER, and sites that are subject to the general prohibition contained in

s. 36(3).156

5.3.3.2 Environmental Harmonization and Mining

The mining industry has been an active proponent of environmental harmonization. It has recommended amending s. 36(3) to bring it into

line with provincial legislation that requires enforcement authorities to

prove that a discharge caused negative environmental effects before

they can take enforcement action. The industry has also urged the federal government to enter into agreements with the provinces that would

give the provinces the lead in the administration of s. 36(3). At Britannia

(see s. 5.6.2 and s. 5.5.3, below), a provincial remediation action plan

states that “risk based” standards will be developed for inclusion in a

provincial effluent permit for an upcoming effluent treatment plant, but

Environment Canada has stated that the plant will have to comply with

s. 36(3) as well. This subsection provides information regarding the basis

for federal/provincial cooperative action which, taken together with

information contained in ss. 5.2, 5.4, 5.5 and 5.6 of this factual record,

allows for a consideration of whether Canada is failing to effectively

enforce s. 36(3) in the context of the Britannia Mine.

In September 1992, the Mining Association of Canada presented a

brief to the 49th Annual Mines Ministers’ conference in Whitehorse,

Yukon, outlining serious challenges facing the minerals and metals

industry in Canada, including lack of public trust and environmental

issues. It proposed the creation of a multi-stakeholder process to

“develop a common vision and strategic plan that would take the metals

and minerals industry into the next century.”157 The proposal was

endorsed by the federal, provincial and territorial Mines Ministers and

the “Whitehorse Mining Initiative” (“WMI”) was launched in March

1993. The objective of the WMI was to “move toward a socially, economSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 57

156. The 1999-2000 report on enforcement of the habitat protection and pollution prevention provisions of the Fisheries Act (this is the last year for which the report is

available; see supra, note 149) states that 29.5% of field inspections (430 field inspections) were in relation to the general prohibition contained in s. 36(3) (these figures

are not broken down by industrial sector) while the rest verified compliance with

specific regulations such as the MMER.

157. Whitehorse Mining Initiative, Final Report of the Environment Issue Group, October 1994 [hereinafter “EIG Final Report”] at iii.
ically and environmentally sustainable and prosperous mining industry, underpinned by political and community consensus.”158

The WMI was headed by a Leadership Council composed of all the

Mines Ministers in Canada (federal/provincial/territorial); top officials

of mining and processing companies; leaders of national Aboriginal

organizations; labour unions; environmental organizations; and independent individuals drawn mainly from academia. The Leadership

Council was supported by a Working Group consisting of assistant deputy ministers and other senior bureaucrats from a range of ministries

and departments, upper management officials in mining and processing

companies, heads of industry associations, and key representatives

from the Aboriginal, labour, and environmental communities. Four

Issue Groups were created to address the central concerns identified by

the WMI, and a Secretariat was established to manage the operations of

the WMI.

An “Environment Issue Group” (“EIG”), including federal government representatives from Fisheries and Oceans Canada, the Industrial Sectors Branch of Environment Canada, and the Resource

Management Division of Natural Resources Canada, first met in August

1993. Its mandate covered “environmental management and regulations.” The EIG was divided into three subgroups charged with addressing issues related to the three phases of a mine’s life cycle: assessment,

operations, and closure. The EIG issued its final report in October 1994.

Under “Overlap and Duplication,” the report stated that

[l]ack of harmonization at the federal and provincial/territorial levels

causes serious problems, including: conflicting regulations; different

reporting requirements; and poor communication between regulators.159

The report recommended that “[a] designated lead agency should

administer and enforce regulations. Equivalency or administrative

agreements should be concluded.”160 A “Leadership Council Accord”

was signed in September 1994.161 It set out a non-binding vision, principles and goals that the signatories agreed to support, implement, and

promote. Under “Overlap and Duplication,” goals included continuing

to establish cooperation agreements among jurisdictions for the development, administration, and enforcement of environmental standards

58 FACTUAL RECORD: BC MINING SUBMISSION

158. Ibid.

159. Ibid. at 31.

160. Ibid. at 33.

161. Alberta, Quebec, Newfoundland and the Assembly of First Nations did not sign

the accord at that time.
to improve the efficiency and effectiveness of the regulatory system and

to reduce unnecessary industry compliance costs. Another goal was to

streamline the permitting and compliance processes to minimize the

time and costs to meet the requirements of the various regulatory

regimes.

In November 1996, as a follow-up to the recommendations of

the WMI, the House of Commons Standing Committee on Natural

Resources released a report entitled “Streamlining Environmental Regulation for Mining.” The report identified impediments to mining arising under various federal statutes, including the Fisheries Act, and made

recommendations for improvements.

Under “Towards a More Realistic Regulation of Water Quality,”

the Committee’s report stated that

[t]he mining industry continues to be concerned with the broad scope of

Section 36, in particular the fact that consideration is not given to the

amount of the substance deposited into the water and its actual effect.162

The report stated that representatives of the mining industry urged the

government to amend s. 36(3)

[...] to clearly reflect a more appropriate emphasis on the risk from exposure rather than on hazard. More specifically, the use of an acute lethality

test and undiluted effluent shows hazard but does not reflect the risk

posed to fish as a result of exposure to a particular contaminant concentration over a given period of time.

See s. 5.2.2, above, regarding the use of acute lethality testing to

measure compliance with s. 36(3). Industry argued “[...] that it was

wrong for government to impose an absolute prohibition on the deposit

of deleterious substances in fish habitat waters,” and that “[...] such factors as risk assessment, the length of exposure, the concentration of the

contaminant, and the chemical nature of the water body in question are

all important factors that need to be considered by department officials

before making regulatory decisions.”

The report stated that a joint submission filed with the Committee

by the Canadian Environmental Law Association and the Canadian

Institute for Environmental Law and Policy

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 59

162. Canada, “Streamlining Environmental Regulation for Mining” (Report of the

House of Commons Standing Committee on Natural Resources) (Ottawa: Queen’s

Printer, 1996), “Toward a More Realistic Regulation of Water Quality.”
[...] argued that criticism that MMLERs are not “scientifically based” was

simply out of place and did not reflect the nature of how the regulations

were developed and administered. The regulations remain technically

defensible since they are based on what is technologically feasible, and not

what is required from an ecological point of view. In actual fact, the problem is not the existence of poor science, but rather that the MMLERs are

not tough enough to protect local ecosystems.

The Committee reported that “[...] the federal government holds the

view that section 36 is sufficiently broad and flexible to allow for a

science-based approach and realistic implementation measures.” The

Committee encouraged the government to proceed expeditiously with

amendments to update the MMLER (see above, s. 5.2.2) and align them

with provincial regulations.163 Despite concern by nongovernmental

organizations regarding provincial enforcement capacity, the government was urged to enter into harmonization agreements with the provinces to “allow for an optimal take up by each province of administration

and enforcement responsibilities regarding [...] effluent regulations.”164

The Committee recommended further that

[...] adequate financial compensation be provided by the federal government in those instances where environmental regulatory functions affecting the mining sector are transferred to provincial governments. In the

future, unilateral intervention by the federal government in areas of predominantly provincial jurisdiction such as mining should be avoided.165

Also in 1996, the federal government replaced the1987 Mineral and

Metal Policy with the Minerals and Metals Policy of the Government of

Canada (the “Minerals and Metals Policy”). The foreword to the Minerals and Metals Policy states that “[i]n the 1996 Speech from the Throne,

the Government stated its willingness to withdraw from functions, in

such areas as mining, that are more appropriately the responsibility

of provincial governments, local authorities and the private sector.”

Under “Regulatory Efficiency,” the Minerals and Metals Policy commits

to streamlining environmental regulations affecting mining, notably

by ensuring stakeholder involvement in developing regulatory

approaches; ensuring that a broad range of non-regulatory approaches

are considered as alternatives or complements to regulation; and strengthening processes for federal-provincial cooperation and harmonization, including through multilateral, bilateral, industry-specific or

project specific agreements.166

60 FACTUAL RECORD: BC MINING SUBMISSION

163. Ibid., Recommendations No. 6 and 8.

164. Ibid., Recommendation No. 8.

165. Ibid., Recommendation No. 11.

166. Minerals and Metals Policy at 9.
5.3.4 Compliance Promotion at Contaminated Sites including Abandoned

Mines

In its response to the submission (see s. 3, above), Canada stated

“Canada approaches potential violations of the Fisheries Act in a systematic and predictable way,”167 and that “Canada’s actions with each

of these three abandoned mines [Mt. Washington, Britannia, and

Tulsequah Chief] and other mines clearly demonstrate a comprehensive

and productive strategy aimed at eliminating the discharge of deleterious substances and thereby achieving compliance with the Act.”168 This

subsection contains information relevant to whether such a strategy

underlies or provides the basis for Canada’s actions in regard to the Britannia Mine. In conjunction with information contained in s. 5.5, below,

information provided in this subsection is relevant to a consideration of

whether such a strategy has contributed to effective enforcement of

s. 36(3) at the Britannia Mine.

5.3.4.1 The National Contaminated Sites Remediation Program

In 1989, the CCME (see above, s. 5.3.3.1) launched a five-year

National Contaminated Sites Remediation Program (“NCSRP”), a

$250M federal/provincial/territorial initiative aimed at developing a

framework for dealing with contaminated sites in Canada and cleaning

up high-risk, contaminated properties for which a responsible party

could not be found or where the property owner was unable or unwilling to finance remediation.169 NCSRP funding was made available for

the Britannia Mine in 1994 (see s. 5.5.6, below). The NCSRP ended in

1995, but risk assessment criteria and clean-up standards developed by

the CCME under the NCSRP are receiving renewed attention in the context of current efforts by the Government of Canada to account for its

contaminated sites liabilities in its financial statements, as part of a move

to full accrual accounting.170

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 61

167. Response at 13.

168. Ibid. at 12.

169. See CCME, The National Contaminated Sites Remediation Program – 1994-95 Annual

Report (Winnipeg: Manitoba Statutory Publications, 1995) at 1-2. For additional

information regarding the NCSRP, see CCME, Guidance Document on the Management of Contaminated Sites in Canada, PN 1279 (Winnipeg: Manitoba Statutory Publications, 1997); see also 1995 Report of the Auditor General of Canada, Chapter 2 –

Environment Canada: Managing the Legacy of Hazardous Wastes, online: Office of

the Auditor General of Canada <http://www.oag-bvg.gc.ca> (date accessed: 18

September 2002).

170. Implementation of accrual accounting has been delayed until 2002-2003. See Canada, Public Accounts of Canada – 2002, Vol. I “Summary Report and Financial Statements of the Government of Canada for the Year Ended 31 March 2002” at 1.36

(Observations of the Auditor-General – Accrual Accounting Delayed) (Ottawa:
Funding under the NCSRP was allocated to provinces and territories on a population basis. Under the program, federal funds were

matched by provincial or territorial funds, on a cost-shared basis. The

guiding principle of the NCSRP was “polluter pays,” and under the program, the provinces committed to amending their legislation to allow

them to implement this principle (through liability-allocation and cost

recovery provisions) and reimburse federal contributions. By 1995, the

federal government had signed agreements with all the provinces and

territories for participation in the NCSRP. The facts at Britannia (see

ss. 5.4, 5.5 and 5.6, below) illustrate the operation of the NCSRP on a

site-specific basis, allowing for a consideration of the effectiveness of the

NCSRP as a means of achieving compliance with s. 36(3) at Britannia.

Under the NCSRP, the CCME Core Group on Contaminated

Site Liability developed a set of “Recommended Principles for a

62 FACTUAL RECORD: BC MINING SUBMISSION

Receiver General for Canada, 2002). See also Treasury Board of Canada, “Policy on

Accounting for Costs and Liabilities Related to Contaminated Sites” (effective

1 April 2002); online: Treasury Board of Canada <http://www.tbs-sct.gc.ca/pubs_

pol/dcgpubs/tbm_142/aclcs-ccpsc_e.html> (date accessed: 20 October 2002): “It

is the policy of the government to account for costs and liabilities related to the

management and remediation of environmentally contaminated sites when contamination occurs if the government is obligated, or is likely to be obligated, to incur

such costs:

a) for reasons of public health and safety;

b) due to contractual arrangements; or

c) to meet standards set out in an act or regulation of a government (federal, provincial or municipal) in Canada or abroad which are considered to be acceptable to the

government.

For purposes of applying paragraph c) of the policy statement, it is not intended that

the federal government waive immunity from legislation, regulations or by-laws

passed by other levels of government; in cases of voluntary compliance with such

legislation, regulations or by-laws, it will constitute a financial obligation for the

purposes of this policy.

A department is obligated or likely to be obligated when there is little or no discretion to avoid a future transfer of assets (probably in the form of cash) to remediate a

contaminated site. However, a general policy intention to remediate, where no public health and safety concerns, no contractual arrangements or no legislation, regulation or by-law exist, is not sufficient to establish a liability.”

Under “Environmental Liabilities,” the 2002 Financial Statements of the Government of Canada state: “Policy guidance has been issued to government departments and considerable progress has been made in the identification and cataloguing of suspected contaminated sites. The process of assessing the nature and level

of contamination on suspected sites, and the consequent preparation and costing of

a remediation plan, are technically challenging and time consuming. While complete and final estimates of the assessment and remediation liabilities attributable to

the Government are not yet available, current estimates indicate that the total will

be at least $2,500 million. The Government will continue to work toward the determination and recognition of environmental liabilities” (p. 1.26 of the 2002 Financial

Statements of the Government of Canada).
Consistent Approach Across Canada.”171 These principles are reproduced below:

1. The principle of “polluter pays” should be paramount in framing

contaminated site remediation policy and legislation.

2. In framing contaminated site remediation policy and legislation,

member governments should strive to satisfy the principle of “fairness.”

3. The contaminated site remediation process should enshrine the three

concepts of “openness, accessibility, and participation.”

4. The principles of “beneficiary pays” should be supported in contaminated site remediation policy and legislation, based on the view that

there should be no unfair “enrichment.”

5. Government action in establishing contaminated site remediation

policy and legislation should be based on the principles of “sustainable development,” integrating environmental, human health and

economic concerns.

6. There should be a broad net cast for the determination of potential

responsible persons. [...]

7. Remediation legislation should provide the necessary authority and

means to enable the recovery of public funds on the remediation of

contaminated sites from those persons deemed to be responsible

for such sites. Furthermore, member governments should strive to

achieve environmental priority over all other claims or charges on an

estate that has entered receivership or bankruptcy.

8. Member governments should pay particular attention to the design

of a process which will facilitate cleanup of sites and the fair allocation

of liability. Further, this process should discourage excessive litigation to the maximum extent possible by promoting the use of alternative dispute resolution procedures.

9. A list of factors should be established for use in the liability-allocation

process to allocate the liability of responsible persons depending on

the specific circumstances of their involvement, and in relation to the

involvement of other responsible persons. [...]

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 63

171. CCME, Contaminated Site Liability Report – Recommended Principles for a Consistent

Approach Across Canada (Prepared by the Core Group on Contaminated Site Liability), PN 1122 (25 March 1993).
10. Alternative Dispute Resolution (ADR) procedures should be made

available by member governments as a means to resolve issues of liability for contaminated sites. [...]

11. Discretion should be retained by member governments to designate

sites as contaminated sites; however, for the purposes of better predictability, governments should clarify their policies for determining

which sites are to be designated, with a view to eventually harmonizing their site-designation processes. [...]

12. A “responsible person” who completes the cleanup of a contaminated

site to the satisfaction of the regulatory authority, should be issued an

official “certificate of compliance” by that authority, certifying that

the site has been remediated to the required standards. [...]

13. Benchmarks should be developed for the remediation of contaminated sites, which will vary depending upon the land usage and site

location of a particular site. [...]

Under Recommended Principle 10, the CCME cautioned

[d]iscretion must be retained, whereby the Government authority can on a

reasonable basis accept or reject any particular liability allocation scheme

resulting from Steps 1, 2 or 3172 (e.g., where the responsible persons agree,

without proper justification, to allocate the greatest percentage of liability

to an insolvent company). Clear criteria may be required for the use of this

authority where government is one of the responsible parties.

At Britannia, in 2001, the Province-as-PRP entered into a settlement

agreement with past owners (relieving them of all liability in exchange

for $30M) and a memorandum of agreement with CBE (CBE to provide

$13M+ for perpetual operation of a treatment plant). CBE was and

remains insolvent (in October 2002). Environment Canada agreed to

conduct sediment investigations in Howe Sound, continue to contribute

technical expertise to the review of remediation works, and support an

application for $3M in federal funding for treatment plant construction.

In October 2002, the $3M in federal funding has not yet been approved.

In 2001, and consistent with Recommended Principle 10, these private

agreements did not bind the provincial regulator, who continued to

have authority under the WMA to name additional persons to a

remediation order issued against CBE in 1999. In 2002, the WMA was

amended, with the result that it is now likely impossible for the provincial regulator to name the private PRPs to the Britannia remediation

order because the Province-as-PRP gave them an indemnity under the

Settlement Agreement. See ss. 5.5 and 5.6, below.

64 FACTUAL RECORD: BC MINING SUBMISSION

172. Voluntary allocation, mediated allocation, directed allocation.
5.3.4.2 Initiatives in Relation to Abandoned Mines

Since the early 1990s, the mining industry and governments have

identified abandoned mine sites as a major environmental problem

requiring a coordinated response. In particular, they have identified the

need for a consistent approach to identifying and assessing such sites,

prioritizing them for clean-up, and funding remediation, including

through agreed-upon liability allocation methods. The facts at the Britannia Mine, particularly as regards current funding arrangements for

proposed remediation activities (see s. 5.5.4, below), are relevant to a

consideration of whether such an approach has been applied at the Britannia Mine in a manner that amounts to effective enforcement of

s. 36(3).

Under the WMI (see above, s. 5.3.3.2), the EIG final report issued in

October 1994 stated that “[g]overnment and industry should be jointly

responsible for financing or developing mechanisms for financing the

reclamation of orphaned mine sites.”173 The October 1994 WMI Leadership Council Accord established the following goals relevant to abandoned mines:

[t]o establish, in each jurisdiction, an acceptable means of identifying

responsible parties to undertake reclamation of old mine sites that pose a

health, safety or environmental problem

and

[t]o establish, in each jurisdiction, funding means for reclaiming old mine

sites where responsibility cannot be assigned. Reclamation should begin

with those sites posing the greatest risk.

In December 1994, the House of Commons Standing Committee on

Natural Resources tabled its fifth report, entitled “Lifting Canadian

Mining Off the Rocks.”174The report was intended to address short-term

measures recommended by the WMI to stimulate investment in the mining sector. Under “Tax Treatment of Reclamation Funding,”175 the Committee noted that

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 65

173. EIG Final Report at 19.

174. Canada, “Lifting Canadian Mining Off the Rocks” (Fifth Report of the House of

Commons Standing Committee on Natural Resources, Robert D. Nault, chairman)

(Ottawa: Queen’s Printer for Canada, 1994) [hereinafter “Lifting Canadian Mining

Off the Rocks”].

175. Ibid. Industry sought—and the Committee recommended but was unsuccessful in

securing—deferral of income tax on revenue from reclamation funds.
[t]he main issue raised by old mining sites, unlike current and future

mines, is the issue of liability for funding site reclamation. The onus today

is on the governments concerned and on the mining industry to assume

joint or several liability for activities that were conducted at those sites, in

some cases a long time ago. On this point, the major stakeholders did not

appear to reach agreement during discussions conducted in the context of

the WMI. At best, they agreed that it was appropriate to establish a reclamation fund for orphaned sites through a combination of income from the

Consolidated Revenue Fund, taxes on the industry and consumption

taxes.

In the case of old mining sites for which a liable party can be identified,

it appears that the idea of establishing a fund such as that considered

for orphaned sites was unacceptable to environmentalists. The industry

would have been prepared to approve such an arrangement since it would

have offered an alternative to the principle of joint and several liability.

Under that principle, both the industry and governments would have

been assigned a share of responsibility, the latter because they issued

licences and permits, developed the applicable statutes and regulations

and benefited from the ensuing operations. Under other scenarios, governments would be solely responsible for sites whose title had reverted to

the Crown. This is thus an issue which has yet to be resolved, particularly

since it can discourage exploration of old sites if a prospector or business is

required to clean up previously caused environmental damage. Clean-up

should nevertheless be encouraged one way or another.176

The Committee did not issue a formal recommendation regarding abandoned mines, but it suggested that Natural Resources Canada, together

with its partners in the provinces and industry, establish a national database on active and orphaned mining sites and reclamation work that

must be undertaken on those sites.177

In response to the Committee’s report, the federal Natural

Resources Minister noted that in the September 1993 Liberal Plan for

Canada, “Creating Opportunity,” and in the October 1993 Liberal

Mining Agenda, commitments were made to define a national strategy

for sustainable mineral development; to act on the results of the WMI; to

promote competitiveness in the mining industry; and to work with the

provinces to eliminate regulatory inefficiencies and barriers to land

access.178 The Minister identified the CCME Harmonization Initiative

66 FACTUAL RECORD: BC MINING SUBMISSION

176. Ibid. at 35.

177. Ibid. at 37.

178. Canada, “The Federal Government’s Reponse to the Fifth Report of the Standing

Committee on Natural Resources: Lifting Canadian Mining Off the Rocks” (tabled in

the House of Commons by The Honourable A. Anne McLellan, Minister of Natural

Resources, 8 May 1995) [hereinafter “1995 Government Response”] at 2.
(see above, ss. 5.3.3.1 and 5.3.3.2) as addressing the issue of regulatory

overlap and duplication. The Minister stated that Natural Resources

Canada would maintain its momentum regarding the establishment of a

national database on mine sites and reclamation. The Minister stated

Natural Resources Canada has had considerable success to date in working cooperatively with the Department of Indian Affairs and Northern

Development, Environment Canada, their provincial and territorial counterparts and the mining industry, under the jointly funded Mine Environment Neutral Drainage Program, in constructing an up-to-date data base

on mine-site information and on estimates of the costs of reclamation that

will be needed at orphaned, inactive and active mine sites. Substantial

progress has already been made, and organizations and infrastructure are

in place to continue this work. In fact, Environment Canada has developed

a database with systematic classification and quantification of contamination levels at federal sites.179

During this period, the federal government implemented measures to secure the remediation of abandoned uranium mines in Canada.

These measures are relevant to a consideration of the approach taken at

the Britannia Mine.

In 1995, the Auditor General of Canada issued a report on federal

radioactive waste management.180 The report noted that uranium tailings are a class of radioactive waste that falls under both federal and

provincial regulations, and that the Atomic Energy Control Board had

chosen not to license uranium mines that had ceased operations prior to

1976. It stated

[a]s a result, these pre-1976 sites have not been subjected to the AECB’s

current regulatory regime and need to be brought under its regulatory

control. The federal and provincial governments need to assign residual

responsibilities for the rehabilitation and decommissioning of uranium

tailings sites in Ontario and Saskatchewan and for the provision of their

long-term institutional care.

Like metal mines, uranium mine wastes are regulated under both federal and provincial legislation, although in the case of uranium mines,

primary legislative jurisdiction rests with the federal government. Also

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 67

179. Ibid. at 11. The Federal Contaminated Sites and Solid Waste Landfills Inventory can

be consulted online: Treasury Board Secretariat <http://www.tbs-sct.gc.ca/dfrprbif/cs-sc/home-accueil.asp?Language=EN> (date accessed: 10 October 2002).

180. Canada, 1995 Report of the Auditor General of Canada, Chapter 3 “Federal Radioactive

Waste Management” at 3.7-3.9.
like metal mines that closed before June 2002 (see s. 5.2.2, above), wastes

at pre-1976 uranium mines are not covered by federal regulations.

The Auditor General’s 1995 report noted that over the next 70

years, the federal share of costs for the implementation of disposal solutions for radioactive waste was estimated at $850 million of the $10B that

is the overall responsibility of radioactive waste producers, and that the

federal share was subject to increase if waste producers defaulted on

their obligations. This situation is comparable to potential federal and

provincial liability in connection with acid rock drainage from metal

mines, which, in 1994, was estimated at $430 million out of approximately $5B, representing the liability (for the cost of control measures) of

both government and companies in the coming decades.181 As regards

abandoned uranium mines, the Auditor General stated that

[t]o minimize future liabilities and the burden on future generations, Canada must now translate its technical knowledge into implementation of

long-term, cost-effective solutions for its radioactive waste. It is also

important to ensure that funding arrangements are in place to meet the

financial requirements of future solutions.

In response to the Auditor General’s recommendations, in January

1996, Canada (represented by the Minister of Natural Resources) and

Ontario (represented by the Minister of Northern Development and

Mines) entered into a Memorandum of Agreement under which they

agreed to share (50/50) the cost of decommissioning activities at uranium mine sites in cases where the uranium producer or property owner

becomes bankrupt or insolvent, or otherwise defaults on its obligations

for decommissioning activities.182 Management and implementation of

the agreement was entrusted to a management committee reporting to

the deputy ministers of the respective signatory agencies. The agreement has a term of fifty years. It can be terminated or renewed by written

agreement of both parties. In a December 1997 follow-up to its 1995

report, the Auditor General reported that the federal Atomic Energy

Control Board had corresponded with current owners of eleven

pre-1976 tailings sites to invite them to complete and submit, on a voluntary basis, applications for prescribed substances licenses, and that it

expected that most sites would be licensed by 1998.183

68 FACTUAL RECORD: BC MINING SUBMISSION

181. Grant Feasby and R.K. Jones, “Report of Results of Workshop on Mine Reclamation” (Toronto, Ontario: Canada Centre for Mineral and Energy Technology, 1994)

at 10.

182. Memorandum of Agreement between Canada and Ontario dated 23 January 1996.

183. Canada, 1997 Report of the Auditor General of Canada, “Follow-up of Recommendations in Previous Reports,” at s. 35.121.
The 1996 Minerals and Metals Policy addresses the issue of abandoned and orphaned mines. Under “Mine Reclamation,” the Minerals

and Metals Policy states that

[...] the Government must also deal with problems associated with past

practices that are no longer permitted. Such practices have led to numerous abandoned and orphaned mine sites, some of which pose a risk to the

environment, human health, or public safety.

The Government will work with other governments and industry to evaluate and develop alternative financing mechanisms that are acceptable to

all stakeholders. In addition, more information on the number and condition of these sites is required. It is recognized that initiatives are underway

in some provinces to conduct a survey of abandoned and orphaned mine

sites. The Government is aware of the need for action to clean up those

abandoned and orphaned mine sites within federal jurisdiction that represent an unacceptable risk to the environment or human health and safety.

It also recognizes the need for the owner of the site, where one can be identified, to pay for the clean-up costs.184

In its 1996 report on streamlining environmental regulation for

mining (see s. 5.3.3.2, above), the House of Commons Standing Committee on Natural Resources referred to the issue of abandoned mine sites

without making any recommendations.185 It stated, however, “WMI

was probably the cornerstone of a new approach to all the problems,

issues and challenges facing a unique industrial sector. In this context,

the Canadian mining industry has made a clear commitment to assume

its full environmental responsibilities and implement the ‘polluter pay’

principle.”186

At the 1999 and 2000 Mines Ministers meetings, industry associations and environmental nongovernmental organizations proposed

that a multi-stakeholder group be formed to address the topic of

orphaned/abandoned mines. The Mines Ministers agreed. A workshop

was held in Winnipeg in June 2001. The 63 attendees represented 12

provinces and territories; 7 NGO groups; 5 First Nations; 5 federal government departments, offices and boards; 7 mining companies; 5 mining

industry associations; 3 communities; 3 consultants and 1 academic.

Environment Canada made a presentation about effluent problems at

the Britannia Mine and the solution envisaged under an agreement with

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 69

184. Ibid. at 14.

185. “Streamlining Environmental Regulation for Mining,” Environmental Challenges

and Progress in the Mining Sector, A. Primary Environmental Effects of Mining.

186. Ibid., Environmental Challenges and Progress in the Mining Sector, B. Progress

Made in the Mining Sector.
past owners (see s. 5.5.3, below). The group developed consensus, guiding principles and recommendations for Ministers to consider at the

2001 Mines Ministers Conference. They concluded that with adequate

resources and resolve, significant progress can be made in the assessment, characterization and remediation/reclamation of orphaned and

abandoned mine sites in Canada within 5-10 years.

At the September 2001 Mines Ministers meeting, the proposal for a

multi-stakeholder advisory committee was endorsed, and government

funding was subsequently made available to allow the Committee to

commission preliminary studies into three aspects of the abandoned

mines problem: information gathering; community involvement; and

barriers to collaboration.187 Preliminary findings were reported to the

Mines Ministers at their September 2002 meeting, and are summarized

in an Action Plan 2001 Status Report (the “Status Report”).188 The introduction to the “Orphaned and abandoned mine site rehabilitation”

section of the Status Report states

Ministers agreed on the importance of implementing, over the short term,

a large-scale programme for rehabilitating orphaned and abandoned

mine sites. [...] While recognizing that each jurisdiction will develop its

own implementation strategy, the advisory committee will report on

options for funding models and mechanisms including the financial participation of industry and federal, provincial and territorial governments,

legislative barriers to collaboration, and appropriate community involvement in decision-making.189

On information gathering, the Status Report indicates that metadata on active, closed and orphaned/abandoned mines have been collated from seven provinces, one territory and one federal agency.190 The

Status Report states that rehabilitation costs cannot be accurately estimated at this time. Next steps include collating information, agreeing

upon definitions and establishing a framework for data collection and

prioritization.

On community involvement, the Status Report states that case

studies have been completed for three abandoned mines (the Giant Mine

70 BC MINING FACTUAL RECORD

187. Natural Resources Canada is currently acting as a “Secretariat” for the committee,

while the Manitoba Ministry of Industry, Trade and Mines is currently housing the

committee’s web site; online: Orphaned/Abandoned Mines Initiative in Canada.

<http://www.gov.mb.ca/itm/mrd/orphan/members.html> (last updated: 6

September 2002).

188. Canada, 2002 Mines Ministers Conference, “Action Plan 2001 Status Report” at 9.

189. Ibid.

190. Ibid.
in the Northwest Territories; the Deloro Mine in Ontario (see s. 5.2.3.3.1,

above); and the Mount Washington Mine (see s. 2, above) in British

Columbia) and one non-mining contaminated site, the Sydney Tar

Ponds, in Nova Scotia.191 Next, the Committee will publish guiding

principles for community engagement and develop a best practices

guide for community involvement to be presented to the Mines Ministers in 2003.

On barriers to collaboration, the Status Report indicates that a preliminary review of Canadian federal and provincial legislation, as well

as select laws at the U.S. federal and state level, and from the United

Kingdom and Australia, has been completed with a view to identifying

regulatory and institutional barriers, liability disincentives and collaborative opportunities.192The Status Report lists “key findings” as follows:

• The current legislative and regulatory regime in Canada is at best

patchwork, at worst indifferent to the problem;

• There is no existing or proposed federal or provincial law regarding

“Good Samaritan” legislation, (that protects persons willing to redevelop a site from liability for historic contamination);

• There are a number of liability disincentives to carrying out voluntary

work with a few limited exceptions (e.g. variance authority);

• There are examples of collaborative initiatives that have been undertaken without legislative reform;

• Federal and Provincial/Territorial governments must work together to

establish regulatory certainty for the management of orphaned/abandoned mine sites.193

Next steps include publishing a report on barriers to collaboration and

identifying preferred options for consideration by federal/provincial/

territorial governments in 2003. The Status Report also indicates that the

Committee will establish a task group to review funding approaches

and identify preferred options (see s. 5.6.2, below).194

In September 2002, an international, multi-stakeholder, miningindustry led initiative (entitled “Mining, Minerals and Sustainable

Development” (“MMSD”)) coordinated by the London-based InternaSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 71

191. Ibid.

192. Ibid. at 10-11.

193. Ibid. at 11.

194. Ibid. at 12.
tional Institute for Environment and Development (“IIED”) published a

series of reports identifying sustainable development challenges for

mining across the globe and making recommendations. In a report entitled “Towards Change: The Work and Results of MMSD-North America,” the North American working group identified “the legacy issue” as

an immediate priority.195 It identified key challenges as including: (1)

developing a comprehensive inventory of abandoned and orphaned

sites; (2) assessing the nature and significance of concerns in each case;

(3) developing an effective way for prioritizing sites so that the worst get

addressed first; and (4) developing a formula for coming up with the

resources for the required action.196

The North American MMSD working group recommended

enhancing efforts to address the legacy of past mining and mineral

activities. It stated that

[i]n Canada, the Mines Ministers have created the Orphaned/Abandoned

Mines Advisory Committee to address the issue under the chair of Dr.

Christine Kaszycki, Assistant Deputy Minister of Mines, Manitoba. The

Advisory Committee is a national multi-interest mechanism involving all

key interests including industry associations, regulatory agencies and

communities, First Nations and nongovernment organizations. In addition, the Inter-governmental Working Group on Mining has also been

mandated by the Mines Ministers to address this issue. Most of the implicated interests also have their own dedicated task forces or committee. For

Canada, the Advisory Committee is the logical mechanism to coordinate

continued work on this topic.197

At the 2002 Canadian Mines Ministers Conference, the IIED presented a submission applauding the Mines Ministers for supporting the

work of the Committee and urging them to maintain this topic as a top

priority.198

72 FACTUAL RECORD: BC MINING SUBMISSION

195. MMSD North America, “Towards Change: The Work and Results of MMSD-North

America” (MMSD: 2002) at 57.

196. Ibid. at 62.

197. Ibid. at 57.

198. David Runnalls, President and CEO, IIED and R. Anthony Hodge, IIED Mining

Team Leader, Facilitator, MMSD-North America, President, Anthony Hodge Consultants Inc., “Mining and Sustainability in Canada: The Two Top Priorities” (Presentation to the 2002 Mines Ministers Conference, Winnipeg, 15-18 September

2002) at 3-4. By way of background, the submission explains (at 1) that in 1999 in

Davos, nine chief executive officers of the world’s largest metal mining companies

decided to launch a “Global Mining Initiative” through the World Business Council

on Sustainable Development (“WBCSD”) and the WBCSD retained the IIED to

carry out the MMSD project to identify how mining and minerals can best contribute to the global transition to sustainable development.
In Canada’s country report to the September 2002 Johannesburg

World Summit on Sustainable Development, Canada reported on the

mining sector, identifying sustainable development challenges facing

industry and government during the last decade. It identified the WMI

as having established a sustainable development agenda for Canadian

mining. It identified the 1996 Minerals and Metals Policy as an example

of the federal government’s application of the concept of sustainable

development to the mining industry. It identified abandoned mines as

an environmental performance issue that has faced the mining industry

through the 1990s. It stated that the provinces of British Columbia, Saskatchewan, Manitoba, Quebec and Ontario have each launched programs to remediate selected orphaned and abandoned mine sites, and

that the mining industry has been promoting establishment of a stakeholder advisory committee to address the issue on a national basis. It

noted that a small number of companies have gone back to reclaim

mines they had previously sold. Under “Future Challenges,” it stated

that “[t]he legacy of abandoned mines—un-reclaimed sites with no

known owner—remains a complex challenge in Canada for governments, the mining industry and communities.”

In October 2002, the CESD issued its annual report, including findings of an audit of federal government actions and policies for the identification, assessment and remediation of federal contaminated sites.199

Noting that the federal government had spent over $66M on studies and

remediation efforts at the privately-owned Sydney Tar Ponds site in

Nova Scotia,200 the CESD concluded that

[s]everal gaps remain in federal policy related to contaminated sites.

The government still needs to decide what role it wants to play in the

cleanup of contaminated sites it does not own or manage, including those

where other levels of government are involved, such as the Sydney tar

ponds. It also needs to decide on its role in dealing with contaminated sites

where the federal government is involved but the contamination was

caused by others, including orphan sites such as abandoned mines in the

North (s. 2.68).

One chapter of the CESD 2002 annual report is devoted to the issue of

abandoned mines in the North.201 These are mines that are closed but

where remediation or ongoing maintenance is still required, and ownerSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 73

199. Canada, 2002 Report of the Commissioner of the Environment and Sustainable Development; Chapter 2 “The Legacy of Federal Contaminated Sites;” online: Auditor

General of Canada <http://www.oag-bvg.gc.ca/domino/cesd_cedd.nsf/html/

menu3_e.html> (date accessed: 1 November 2002).

200. Ibid. at 2.27.

201. Ibid. at 3.
ship has reverted to the federal Crown, usually after the private sector

owner has gone bankrupt. The CESD concludes that the federal government lacks an overall plan to coordinate and finance remediation and

maintenance activities at these sites, and to prevent such situations from

recurring, and it makes a number of recommendations, all of which were

agreed to by Indian and Northern Affairs Canada, the federal government department responsible for management of these sites.202

In its 2002 report, the CESD identified the work and objectives of

the Multi-stakeholder Advisory Committee on Orphaned/Abandoned

Mines, noting that

[...] action on the ground is slow. Four federal departments, including

Indian and Northern Affairs Canada, are part of this committee. We

believe that this initiative is an opportunity for the federal government to

play a leadership role.203

74 FACTUAL RECORD: BC MINING SUBMISSION

202. Ibid. at 3.83-93.

203. Ibid. at 3.77.
5.4 Alleged Violations of s. 36(3) at the Britannia Mine

Figure 1. Map

The Britannia Mine (“Britannia” or the “mine”) is located on the

eastern shore of Howe Sound in British Columbia, just off Highway 99,

between Vancouver and Whistler. All that can be seen of the mine from

the highway is an old mill building that is now home to the B.C. Museum

of Mining.204 The mine workings are located inside Mt. Sheer, which

rises to a height of approximately 4600 feet over a distance of about 7

kilometers from the shore.205 Britannia operated from 1904 to 1974.206 In

the 1920s, it was the largest copper mine in the British Empire.207

Approximately 47 million tonnes of ore were extracted from the mine

during its 72 years of operation.208

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 75

204. Information gathered by the Secretariat during site visits on 23-24 May 2002 and 12

June 2002. On 23 May 2002, Secretariat staff attended a town hall meeting regarding

progress on the Britannia Mine Remediation Project (see below, s. 5.5.4) and toured

the B.C. Museum of Mining. Employees of CBE gave Secretariat staff and consultants a tour of the 4100-level and 2200-level portals and former town-site area.

Access by land to the Jane Basin was not possible due to poor road conditions and

snow cover.

205. For an extensive, if somewhat dated, compilation of information about environmental issues at the Britannia Mine, with hyperlinks to other studies, see Chris

Mills, “The Former Britannia Mine, Mount Sheer/Britannia Beach, British Columbia; online: Enviromine <http://www.enviromine.com/ard/Case%20Studies/

Britannia.htm> (date accessed: 24 October 2002).

206. See B.C. Museum of Mining (Information Brochure), “Facts and Figures”; see also

online: <bcmuseumofmining.org> (date accessed: 20 October 2002).

207. Ibid.

208. See Mills, supra, note 205 at 1.
Figure 2. Aerial photograph of the Britannia Mine and

Howe Sound showing key locations

The mine was owned and operated by the Britannia Mining and

Smelting Company from 1902-58, by the Howe Sound Company from

1958-1963, and by three different subsidiaries of the Anaconda Mining

Company from 1963-79.209 The mine closed in 1974. In 1979, the property

was purchased from Anaconda Canada Exploration Ltd. by the current

owner, Copper Beach Estates Ltd. (“CBE”).210 In May 2002, CBE changed

its name to Britannia Mines and Reclamation Corp. (“BMARC”). For

ease of reference to historic materials, BMARC is referred to as CBE

throughout this factual record.

In the early days of mining at Britannia, access to the area was by

water only. Company offices were located near the shore at Britannia

Beach, and a mining community was situated at the 2200-level, halfway

76 FACTUAL RECORD: BC MINING SUBMISSION

209. Information in this section is drawn in large part from a submission filed by

CanZinco Ltd. (the “Canzinco Submission”) with the British Columbia Ministry of

Water, Land and Air Protection (“MWLAP”) in 2000, as part of a process launched

by the MWLAP under Part 4 of the BC WMA in 1998 to determine persons responsible for addressing pollution at Britannia. A copy of the CanZinco Submission was

provided to the Secretariat by Barry Azevedo of the MWLAP during a meeting on

13 June 2002. See paras. 9, 79 of the Canzinco Submission.

210. In May 2002, CBE changed its name to Britannia Mines and Reclamation Corp.

(“BMARC”). For ease of reference to historic materials, BMARC is referred to as

CBE throughout this factual record.
up the mountain. Access to the townsite was by mountain railway.

Shafts were drilled into the side of the mountain at the 2200- and 4100-

levels, as well as at other locations, to allow miners to access underground workings and transport ore out of the mine. From the 4100-level,

ore was delivered by rail to a concentrator (or mill) erected on a steep

slope at the base of the mountain. From the mill, the ore was shipped

to various locations in the United States for further processing. The

2200-level town site was eventually abandoned and the mining community relocated to the flatlands by the water, where it remains.211 In the

late 1960s, a road was built high up Mount Sheer, to the Jane Basin, to

allow for open pit mining.212

Figure 3. Graphic Representation of Pollution Problem at the

Britannia Mine213

A series of creeks run from the top of Mount Sheer to Howe Sound.

Jane Creek passes the 2200-level, eventually joining Britannia Creek,

which runs through the flatlands at Britannia Beach before reaching

Howe Sound. Some 44 million tonnes of mine tailings—waste produced

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 77

211. Some of the original buildings are still present on-site, but trailer homes have been

added. The community is still a “mining town.” Residents are tenants of the mine

owner, on whom they rely for all utilities, such as water and hydro, and other services usually provided by municipalities.

212. CanZinco Submission at para. 89.

213. Al Colodey, Environment Canada, “Britannia, B.C., Past, Present and Future” (Presentation to Multi-stakeholder Workshop on Orphaned/Abandoned Mines) Winnipeg, June 2001.
during milling—resulted from the operation of the concentrator at

Britannia.214 Tailings were initially piped to Britannia Creek and were

later piped directly onto the bed of Howe Sound as well as to shallower

waters just offshore.215 Some tailings were used as fill on the property.

From the beginning of mining at Britannia, effluent from the mine

discharged to Britannia Creek and Howe Sound from the 2200- and

4100-level portals. The effluent is acidic and contains dissolved and suspended heavy metals. During the operation of the mine, the level of copper in the effluent was so high that beginning in the 1920s, copper was

recovered from the effluent and sold.216 To recover the copper, in a process called “cementation,” cascading cement trenches were installed at

the 2200- and 4100-level portals and filled with scrap iron. As much as

80% of the copper in the effluent would attach to the scrap iron, releasing

non-toxic (but unsightly, because of its orange color) iron into the effluent, Britannia Creek and Howe Sound. In the 1930s, copper levels in the

mine effluent reached 1300 mg/L (by way of comparison, the allowable

limit under the MMER217 is 0.3 mg/L), with annual copper production

from cementation approaching 450,000 kg.218 Former owners allegedly

sought to increase the profitability of this venture by increasing effluent

flow through diversion of surface water into glory holes219 in the Jane

Basin.220 By the time the mine closed in 1974, Mount Sheer contained

210 kilometers of mine tunnels.221 Rain, surface water, and snow-melt

entered the mine through glory holes and open pits, flushing through

the old mine tunnels, picking up metals and turning acidic along the

way. The effluent then exited the mine through the 2200- and 4100-level

portals. In 1974, information was becoming available showing the negative impact of the discharge on the marine environment in Howe Sound

(Brodie: 10/22/74).222 In 1979, the year in which Anaconda sold the mine

to CBE, BC Environment adopted pollution control objectives for mine

effluent.

78 FACTUAL RECORD: BC MINING SUBMISSION

214. Mills at 1.

215. CanZinco Submission at paras. 74, 95-6.

216. Ibid. at paras. 75-77.

217. See s. 5.2.2, above.

218. Steffen, Robertson and Kirsten, Consultants, “Evaluation of ARD from Britannia

Mine and the Options for Long Term Remediation of Impact on Howe Sound”

(1991) at 3-6, quoted in Feasby, infra s. 5.6 at 4-5.

219. Mining inside Mount Sheer extended well below sea level as well as all the way to

the top of the mountain. At the top, this resulted in “subsidence,” a caving-in phenomenon that left huge “glory holes” at the top of the mountain.

220. CanZinco Submission at paras. 88-90.

221. See B.C. Museum of Mining, supra, note 206.

222. See CanZinco Submission, “Pollution Control and Other Environmental Issues:

The Provincial Crown and Anaconda/Arco (1971-present)” at paras. 158-196.
MMER standards do not apply to Britannia effluent (see s. 5.2.2,

above), but Environment Canada uses them for comparison purposes in

evaluating compliance with s. 36(3).223 The principal MMER criterion

relied upon by Environment Canada in assessing whether effluent at

Britannia complies with s. 36(3) is the requirement that the effluent be

non-acutely lethal to fish.224 Britannia effluent has been and remains

acutely lethal to fish.225 Environment Canada tests for acute lethality by

exposing rainbow trout to undiluted effluent for 96 hours. If more than

half the trout die, the effluent is considered to be acutely lethal to fish.

Environment Canada uses other MMER standards as a reference in

identifying potential violations of s. 36(3).226

Information provided to the Secretariat by Environment Canada

indicates that between 1995-2001, copper concentrations in mine effluent at Britannia (2100-level portal + 4100-level portal) ranged from a

minimum of 3.69 mg/L to a maximum of 134.4 mg/L, compared to an

MMLER/MMER limit of 0.3 mg/L.227 Zinc levels in Britannia effluent

ranged from 1.22 mg/L to 75.6 mg/L, compared to an MMLER/MMER

limit of 0.5 mg/L. The range of pH levels recorded in Britannia effluent

(2200-level portal + 4100-level portal) is 2.4-4.5, while the acceptable

range under the MMER is 6.0-9.5.228

Information on effluent flow is relevant to a consideration of the

magnitude of the potential violations. The average monthly discharge of

effluent from the Britannia Mine (2200-level flow + 4100-level flow), per

second, ranges from 93 liters per second in September to 334 liters per

second in June (the high volume in June is due to snowmelt).229

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 79

223. Telephone conversation with Robert McCandless, Senior Program Officer, Industrial Programs, Pacific and Yukon Region, Environment Canada, 11 October 2002.

224. Ibid.

225. Environment Canada has indicated that an effluent treatment plant being proposed

for the site is intended to, among other things, achieve “[...] the removal of acute toxicity to fish (rainbow trout) as evaluated using a 96h test and 100% effluent. [...] In

the past 25 years, numerous Court decisions have recognized this type of test as one

means of defining ‘deleterious substance’ under s. 36(3) of the Fisheries Act,” Facts

on the Britannia Mine at 4.

226. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “The determination of a deposit of a deleterious substance is complex and

does not necessarily reference MMER limits or limits of other Fisheries Act regulations, but relies on site-specific evidence gathered by an inspector or fishery officer

designated under the Fisheries Act, and other expert testimony presented to the

court at trial.”

227. Facts on the Britannia Mine at 2.

228. These levels were recorded in 1998. See Feasby, infra, note 310 at 5.

229. Facts on the Britannia Mine at 2.
The 2200-level portal was plugged on 31 December 2001 (see

s. 5.5.4, below), with the result that mine effluent is no longer contaminating Britannia Creek. The plug reroutes effluent from the 2200-level

inside the mine to the 4100-level, where the combined effluent discharges to Howe Sound from a submerged outfall. While the effluent is

no longer discharging to Britannia Creek, the daily mass or flux of metals

released into the fish-bearing waters of Howe Sound from the submerged outfall remains the same or slightly less than before.230 This

results in ongoing potential violations of s. 36(3) at Britannia.

At the provincial level, effluent standards are set on a site-by-site

basis, in effluent discharge permits issued under the WMA, by reference

to provincial pollution control objectives that were developed in the late

1970s for different industrial sectors, including mining, and on the basis

of provincial water quality guidelines. The objectives, together with the

guidelines, provide guidance on contamination levels that must not be

exceeded at the point of discharge and in the receptor water bodies. The

province ordered Anaconda to apply for an effluent discharge permit for

Britannia in the early 1970s, but no permit was issued because of protracted negotiations regarding effluent treatment requirements and

technical issues caused by mine closure in 1974. The province issued

effluent remediation orders against Anaconda in 1974, 1977 and 1979,

and against CBE in 1981 and 1993, but those orders did not contain effluent standards. BC Environment issued an effluent discharge permit containing effluent standards to CBE in 1999, but that permit has lapsed

because CBE never followed through on a 1999 remediation proposal.231

In May 2002, the provincial regulator issued a letter stating that he

expects that provincial effluent standards will be developed for Britannia based on plans for a future effluent treatment plant and results of

ongoing investigations.232 He has also stated that any future effluent discharge permit will probably be issued to the site remediator [BC Environment] rather than to CBE.233

Since the 1970s, the principal focus of federal and provincial environmental regulators at Britannia has been to find a way to stop (or treat)

effluent discharge from the 2200-level portal (to Britannia Creek) and

from the 4100-level portal (to Howe Sound). Site contamination and offshore sediment contamination issues have received some attention in

the past and are being addressed in a comprehensive manner since 2001

80 FACTUAL RECORD: BC MINING SUBMISSION

230. Ibid.

231. See letter from Eric Partridge, Director of Waste Management, MWLAP to CBE (13

May 2002) Re: Britannia Mine: Permit PR-15938; Permit PE-12840.

232. Ibid.

233. Ibid.
(see s. 5.6, below). Since 2001, on-site soil and groundwater investigations at Britannia Beach have indicated that the use of tailings as fill

material and the presence of waste rock piles is causing groundwater

and surface water contamination, much of which reaches Howe Sound

in potential violation of s. 36(3).234 Studies conducted in the past regarding impacts of mine tailings on sediment quality on the bed of Howe

Sound concluded that natural build up of new sediment was covering

those tailings and helping to prevent them from impacting the marine

environment.235 Federal studies are now underway regarding the

potential effects of tailings deposited in the nearshore intertidal zone on

fish and fish habitat.236

5.5 Canada’s Actions in Regard to Alleged Violations of s. 36(3)

of the Fisheries Act at the Britannia Mine

In April 2000, in reply to Canada’s response to the submission (see

s. 3, above), the Submitters provided the Secretariat with a copy of a document prepared by Sierra Legal Defence Fund, entitled “Britannia

Beach: Summary of Documents and Evidence.”237 With reference to this

document, the Submitters asserted

[...] the actions which Canada has undertaken cannot, in any sense of the

word, be considered to fulfill Canada’s obligation under section 5 of the

NAAEC to “effectively enforce its environmental laws and regulations

through appropriate governmental action” [emphasis added by Submitters]. As is shown in the enclosed document “Britannia Beach: Summary

of documents and Evidence,” Canada has, for over 20 years, engaged in

the “softer” environmental enforcement approaches, with the result that

no environmental improvement has occurred. The Submitters are not concerned, per se, with the specific approach chosen by Canada, as long as it is

effective. However, the Submitters say that to continue to pursue the same

enforcement options, when those options have clearly failed cannot be

considered effective enforcement.238

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 81

234. Letter from Ron Driedger, Deputy Director of Waste Management, British Columbia Ministry of Water, Land and Air Protection, to Anaconda/ARCO et al. (25 April

2001) Re: Britannia Mine Site Remediation.

235. Mike Hagen, Pollution Prevention and Assessment, Environment Canada, “Britannia Marine Sediment Contamination: Interim Status of Knowledge and Next

Options” (2 March 2001).

236. Ibid.

237. Letter from Randy L. Christensen, Sierra Legal Defence Fund, to David Markell,

Head, Submissions on Enforcement Matters Unit, CEC (18 April 2000) and attachment, “Submitters’ Reply to the Canadian Response to Submission 98-004” [hereinafter “Submitters’ Reply”].

238. Ibid. at 5.
The Secretariat kept this information on file pending an instruction from

Council regarding the development of a factual record. In April 2002,

as part of the information-gathering process for the factual record, the

Secretariat asked the Sierra Legal Defence Fund for copies of materials

used by the Sierra Legal Defence Fund to prepare the Britannia Beach

document referred to above. On 29 April 2002, the Secretariat received

from the Sierra Legal Defence Fund a banker’s box containing copies of

provincial government correspondence and other materials regarding

the Britannia Mine. The dates of the correspondence range from the

1980s to 1998. Most of the information contained in this section of the factual record (especially ss. 5.5.1 and 5.5.2) is drawn from these materials.

Post-1998 information is drawn mainly from the web site of the BC Ministry of Water, Land and Air Protection, which contains copies of correspondence issued by the BC Regulator regarding site remediation at

Britannia (see s. 5.5.3, below).239

In response to the Secretariat’s Request for Information (see

Appendix 4), Canada provided the Secretariat with a memorandum prepared by Environment Canada, dated March 2002, entitled “Facts on the

Britannia Mine.” The memorandum contains information on characteristics of ARD at Britannia, Environment Canada monitoring activities,

proposed effluent remediation measures, a list of federal/provincial

enforcement and compliance promotion actions, information on financial resources expended by Environment Canada and Fisheries and

Oceans Canada on enforcement and compliance promotion at Britannia,

and an overview of current progress on remediation under the BMRP.

The appendices to the memorandum contain detailed scientific reports

by Environment Canada, Fisheries and Oceans Canada and others

regarding the environmental impacts of Britannia effluent. Canada did

not provide the Secretariat with certain types of information normally

available under access to information legislation, such as copies of

letters, memos, e-mails, agreements, inspection reports and other

documents, unless specific documents were requested. In a telephone

conversation, an Environment Canada employee confirmed that Environment Canada has not conducted an inspection or an investigation

and thus has not had an enforcement file on the Britannia Mine since at

least 1999.240 In response to the Secretariat’s 8 May 2002 Request for

82 FACTUAL RECORD: BC MINING SUBMISSION

239. See online: BC Ministry of Water, Land and Air Protection <http://wlapwww.gov.

bc.ca/sry/p2/britannia/index.htm> (date accessed: 22 October 2002).

240. Telephone conversation with Ken Wile, Head, Inspections, Environment Canada,

Pacific and Yukon Region, 29 July 2002. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada stated: “Environment Canada has maintained numerous other files related to compliance promotion activities including

the technical review of proposed treatment and site-remediation options.”
Additional Information (see Appendix 5), Environment Canada provided some requested information in writing.241 On 11 June 2002, Secretariat staff met with federal officials of Canada in regard to that request.

In “Facts on the Britannia Mine,” Environment Canada stated

[d]espite the constraints with proceeding with prosecutions under the

Fisheries Act, Environment Canada and DFO have taken various actions

since the 1970s to promote compliance with and enforce the Fisheries Act at

the Britannia Mine site. These actions have included assessment and monitoring, public education, field and laboratory research, and maintaining

effective partnerships with provincial ministries to address the water pollution problems.242

This section of the factual record contains relevant information obtained

from the Submitters, from Canada and from the public regarding actions

taken by Canada to enforce and promote compliance with s. 36(3) of the

Fisheries Act at the Britannia Mine. To the extent that much of the information contained in this section concerns provincial government action,

such information is relevant to a consideration of whether Canada is failing to effectively enforce s. 36(3) at the Britannia Mine because Canada

has indicated that it has provided technical advice and expertise to the

province of British Columbia to support the province’s enforcement

efforts under the Pollution Control Act and its replacement, the Waste

Management Act.243 For a proper consideration of this information, this

section should be read in conjunction with ss. 5.2 and 5.3, above.

Most documents referred to in this section are listed in Appendix 7

in chronological order. For ease of reference to Appendix 7, in this section of the factual record, documents are identified using the last name

of the author, followed by the date (undated documents are listed at the

end of Appendix 7). All references to conversations, meetings, etc. are

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 83

241. Environment Canada provided the Secretariat with a copy of the 1994-95 Annual

Report of the National Contaminated Sites Remediation Program (by fax on 27 May

2002); a copy of the application filed by the Fraser Basin Council to the Canada-B.C.

Infrastructure Program for funding for treatment plant construction at Britannia

(by fax on 7 June 2002); a copy of a submission filed by Canada with the Regulator

under the provincial potentially responsible persons process in respect of pollution

at the Britannia site (in person on 11 June 2002); a link to information on MiningWatch Canada’s web site regarding the Multi-stakeholder Advisory Committee on

Orphaned/Abandoned Mines, as well as a link to the Mine Environment Neutral

Drainage Program of Natural Resources Canada (by e-mail on 22 May 2002); and a

copy of the Settlement Agreement between the Province-as-PRP and the private

PRPs (in person on 11 June 2002).

242. Facts on the Britannia Mine at 5.

243. Ibid.
based on information contained in documents listed in Appendix 7. In

many cases, a reference is provided at the beginning of a paragraph only.

Subsequent statements are covered by that reference, until a new reference is provided. Finally, for some documents, either the date or the

name of the author were missing from the information provided to the

Secretariat. Missing information is listed as “n/a” or “n/d”. For ease of

reference, a timeline is provided in Appendix 8.

5.5.1 1974-1994 / Relevant Historical Information

In Council Resolution 01-11, the Council directed the Secretariat to

consider, in developing the factual record, whether Canada “is failing to

effectively enforce its environmental law” since the entry into force of

the NAAEC on 1 January 1994.” The Council added “[i]n considering

such an alleged failure to effectively enforce, relevant facts that existed

prior to 1 January 1994, may be included in the factual record.” This

section contains such facts.

On 25 October 1974, the Pollution Control Branch of BC Environment244 ordered Anaconda Canada Ltd. (“Anaconda”) to “collect mine

water and direct it to the 4100 portal and thence to Howe Sound at depth,

after appropriate treatment (i.e. Cu removal).” Anaconda shut down the

mine on 1 November 1974, citing low copper prices and dwindling

reserves. BC Environment and Anaconda then spent several years negotiating an agreement on measures to comply with the 1974 order. BC

Environment told Anaconda that any proposal would likely be subject

to compliance with EPS [Environment Canada] standards for total

metals (Brodie:10/22/74).

In February 1975, Environment Canada asked BC Environment for

copies of plans prepared by Anaconda to comply with BC Environment’s 1974 order (Brodie: 3/4/77).

In 1976 BC Environment wrote to Anaconda (Brodie: 8/3/76),

stating:

As you are aware there is evidence of very high levels of copper and zinc in

shellfish all along Howe Sound. Lacking any evidence to the contrary, we

must conclude that its source is the Britannia Mine water.

84 FACTUAL RECORD: BC MINING SUBMISSION

244. To avoid confusion resulting from name changes over the years, in this section, the

provincial environment ministry is referred to as “BC Environment” and the provincial mining ministry is referred to as “BC Mines.”
It is our assessment that there is no existing technology for removal of all

contaminants of concern from the Britannia Mine water at a bearable cost,

considering the large volume, the concentration of contaminants, the

potential sludge disposal problem, and the non-operating position of the

mine. However, the development of new technology may change this

assessment and we cannot predict this likelihood.

Nevertheless, there may be some potential for more efficient removal of

copper which would undoubtedly benefit the receiving waters assuming

that the heads copper concentration does not significantly change from

that of past years. If as you suggest the heads concentration is rapidly

decreasing, we would appreciate a summary of historical copper levels to

support this.

It is unlikely that we can provide any formal guarantee that further treatment of the mine water will not be required at some future date, however,

we might be in a better position to informally provide assurance that such

would be the case provided steps were being taken to improve copper

recovery to the maximum extent possible with existing cementation technology, or else that evidence indicated rapidly decreasing contaminant

levels.

It is our intention to review the proposals for handling mine water and

domestic sewage with Environment Canada and other government agencies prior to finalizing our discussions in the form of a Permit. We will do

so once we have your response to the above.

BC Environment met with Environment Canada and Fisheries and

Oceans Canada in March of 1977 to obtain final comments on a proposal

by Anaconda to direct all mine water to the 4100-level, channel it

through copper launders245 and then pipe it to a submerged outfall to be

built deep in Howe Sound (Brodie: 3/4/77). A memo to file drafted by

the Head of the Industrial Division of the Mining Section of the Pollution

Control Branch of BC Environment summarizes the meeting. Because it

covers many topics related to pollution and pollution control at Britannia and for ease of reference, the memo is reproduced in its entirety

below. Environment Canada is referred to as “EPS.”

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 85

245. See explanation of copper-exchange (“cementation”) process above, s. 5.4.
86 FACTUAL RECORD: BC MINING SUBMISSION

File: 0262100-AE-2194

Date: March 4, 1977

From: Industrial Division

Mining Section (JBB)

MEMO TO FILE

Meeting with EPS and Fisheries re Anaconda Ltd. (AE-2194)

Meeting was held on March 1, 1977 at the EPS offices in West Vancouver.

In attendance were:

Mack Ito EPS

Rick Kussat “

Claudio Guarnaschelli EPS

Darcy Goyette “

Rick Harbo Fisheries

Hal Nelson EPS

F.P. Hodgson PCB

J.B. Brodie “

It was explained that our purpose was to obtain any final comments from

EPS on the proposal for discharge of mine water before directing the Company to proceed.

JBB reviewed the situation as follows:

The mine and mill have operated since around 1900 discharging various

quantities of tailings to Howe Sound foreshore. Recent milling rate was

2200 T/D. In addition mine water has flowed to Britannia Creek, probably

over most of the life of the mine. Recently, mine water high in Cu, Zn, Fe,

Al, etc. at a low pH has flowed from the 2200 and 4100 levels. Before the

mine shut down in November 1974, it was proposed to neutralize mine

water with lime and discharge the product along with tailings to Howe

Sound at depth.

Following the shut down, the PCB [Pollution Control Branch] proposed a

pilot plant facility to find a means of treating the mine water at Britannia,

having possible application at other locations. Budgetary and staff restrictions have essentially thwarted this proposal.

In October 1974, the Director ordered Anaconda to collect mine water and

direct it to the 4100 portal and thence to Howe Sound at depth, after appropriate treatment (i.e. Cu removal).

A letter from EPS in February 1975 requested copies of plans.

We now have a proposal finalized which fulfills the requirement. To be

disposed of is 1-15 x 106 IGPD of mine water containing 20 ppm Cu, 60

ppm Zn, Fe 225 ppm, Al 90ppm, Cd 0.40 ppm, pH 3.0 and 40,000 IGPD

sewage treated by septic tank. Levels obviously do not come close to meet-
SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 87

ing either PCB levels or Environment Canada standards. There is no further treatment known which is practical based on the sludge disposal

problem and high cost. However, the proposed scheme will:

1. rehabilitate Britannia Creek by removing all mine water from it.

2. remove contaminants from the foreshore area.

3. improve aesthetics.

4. provide a vehicle for sewage disposal and its disinfection.

Data was passed around showing that Cu levels appear to be decreasing

with time.

The plans were reviewed showing the piping and flow collection systems

and the outfall. It was pointed out that the consultants calculate that for the

185 ft. deep outfall, a surface turbidity will be evident only when mine

water flows exceed 5000 gpm, or 4.4% of the year on average. A copy of the

plans was left with EPS; they are to be returned.

Discussion followed:

Q: Had air entrainment been considered?

A: Yes, in the design of the stilling wells, etc. but because tailing solids

were not involved, and there was no deliberate aeration through flotation nor use of frothing agents, it was not expected to be a problem.

Q: Would conventional lime treatment be feasible?

A: If the sludge is discharged it will likely redissolve. If sludge is

removed, the volume is extremely large—estimated 2 barge loads

per day.

Q: Was instability of the bottom expected to cause problems?

A: Sclaire pipe was to be used because of its ability to conform to changes

in the topography. Other locations had been considered but this was

found to be most suitable.

Q: Is the mine water turbid?

A: It was when the mine was in operation and a settling pond was present

for this purpose. Now it is not turbid and proposed to bypass pond.

Q: Was a security bond obtained?

A: It had not been considered because of the difficulty in determining a

reasonable sum.

Q: Was there any requirement for Anaconda to continue to operate the

copper plant?

A: No specific requirement in order, but it was our understanding it is to

continue to operate. If it did not continue, we would likely have something to say.
88 FACTUAL RECORD: BC MINING SUBMISSION

Q: Was the operation of the copper plant profitable?

A: We understood it is, but to what extent is not known.

Q: Could some government agency step in to set up an investigation of

possible treatment routes?

A: This is essentially what we had proposed but at this time, the PCB

could not follow through.

Q: To what extent could Anaconda carry out investigations?

A: The Company had already indicated a willingness to contribute in

some way but could not give a commitment until they were given

more specific terms of reference or requirements.

Q: Could the Director require further treatment if suitable technology

became available?

A: Yes.

Q: Was there any opportunity for increasing capacity and/or efficiency

of Copper plants?

A: Undoubtedly but it is only 4.4% of the time that the flow is in excess of

what the existing plant can handle. In addition, copper levels are

decreasing at a rate which may make copper recovery rather inefficient in the near future. Also, these plants only remove copper and

actually increase iron levels.

Q: What about sealing of mine?

A: Mine sealing has not been effective in the U.S. coal mines where the

topography is more favourable. At this time, sealing off openings

would merely force the water out at a higher level. FPH explained the

layout of the mine and how water draining into old pits at the top of

the mountain finds its way in through caved areas and old workings.

Our discussion with Merritt (Assist. Chief Inspector of Mines) and

previous mine manager at Britannia suggest sealing or reduction of

water entering mine is not possible.

Q: Have the use of biocides been considered (to destroy the bacteria

responsible for catalyzing the oxidation of sulfides).

A: Not possible to get application of biocides through active leaching

areas.

J.B. Brodie

JBB:dp

cc: R/M – Lower Mainland
In April 1977, BC Environment informed Anaconda that Environment Canada had agreed that Anaconda’s plan (described above)

should proceed (Hodgson: 4/26/77). BC Environment noted that Environment Canada felt that “there may be opportunity for increased copper recovery,” and stated that “[t]his aspect may be pursued at a later

date but may be considered independently of the outfall.” BC Environment told Anaconda that it did not think the Britannia mine was covered

by the new federal Metal Mining Liquid Effluent Regulations and Guidelines.246 BC Environment informed Anaconda that Anaconda would be

required to carry out an effluent monitoring program. In response to a

request from Anaconda for assurances that there would no additional

remediation requirements, BC Environment stated “aside from possible

upgrading of the copper plants, there is no intention of requiring further

treatment in the foreseeable future.”

In May 1977, Anaconda informed BC Environment that it would be

installing a concrete plug at the 4100-level to regulate effluent flow from

the mine. This measure was expected to optimize copper removal

through the cementation process by reducing peak effluent flows from

the mine (Brodie: 5/11/77).

In 1978, British Columbia Development Corporation considered

purchasing the Britannia assets from Anaconda, with the possibility of

reselling the land to a private concern. A representative of the British

Columbia Development Corporation stated that any developers

involved “[...] would have considerable financial resources—possibilities under consideration are a ship terminal, a pulp mill, or grain elevator” (Brodie: 2/21/78).

On 20 June 1979, CBE entered into an option to purchase (the

“Option”) the Britannia Mine from Anaconda for $5M (Option to Purchase: 6/20/79). Two notable provisions of the Option include the

requirement for the purchaser, within one year of the exercise of the

Option, to convey at least 40 acres of relatively flat land at Britannia

Beach to the “Britannia Beach Historical Society” for free (s. 14(B)), and

an acknowledgment and agreement by the purchaser that “it will be

after the Completion Date fully and continually responsible for environmental obligations [...]” (s. 15).247 Under the Option, the Purchaser was

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 89

246. The Secretariat received no information regarding whether Anaconda consulted

with federal authorities on this matter.

247. Specifically, s. 15 provided that “(a) The Seller shall have no liability for existing or

prior environmental conditions, obligations, or responsibilities that are the result of

the Seller’s or its predecessor’s activities on the Property under this Agreement. In

the event an existing or prior environmental condition develops or expands, the
responsible for “obtaining any and all consents of governmental departments and agencies to the transfer of the Property” (s. 17).

CBE exercised the Option on 29 October 1979, purchasing Anaconda’s mineral claims, and surface and foreshore rights at Britannia, as

a single block for $4.9M. On the same day, CBE sold a small parcel of

shorefront Britannia lands to Dome Petroleum for approximately $6M,

under an agreement reached with Dome Petroleum on 30 August 1979

(Fodchuk: 1/7/80).

In December 1979, Anaconda advised BC Environment that it was

submitting its last monitoring report and the agency responded by

reminding Anaconda of its continued obligations under provincial

pollution control orders (Hamilton: 12/10/79).

On 14 January 1980, BC Environment met with representatives of

CBE. As provided in the Option, CBE was requesting the transfer of

waste discharge responsibilities from Anaconda to itself (Hamilton:

1/14/80). CBE indicated that it was interested in the Britannia assets for

real estate development purposes. BC Environment explained to CBE

that pollution control orders are not transferable and that therefore, a

new order would have to be issued to CBE. BC Environment stated “[...]

the Branch will want to insure continuity of responsibility over a long

term therefore substantiation as to the company structure or posting of a

bond may be required.”

At the 14 January 1980 meeting referenced above, CBE sought

assurances from BC Environment that its responsibilities under any new

order would be limited to obligations found in the existing orders issued

against Anaconda (which required Anaconda to divert effluent from the

2200-level to the 4100-level, run the combine effluent through copper

launders, and then discharge it at depth into Howe Sound). BC Environment stated that this could not be assumed and would not be confirmed,

90 FACTUAL RECORD: BC MINING SUBMISSION

Purchaser shall be obligated to remedy or correct the cited environmental condition. Should correction of an existing or prior environmental condition require

maintenance or repair, the Purchaser shall perform and continue such necessary

maintenance or repair; (b) The Purchaser shall have full and continuing responsibility, legal obligation, and liability on any existing or future environmental conditions; (c) The Purchaser shall have full responsibility for continual operation of

environmental controls now required or required in the future on the Property. This

duty shall include the environmental facilities necessary as a result of the existing

mine workings both surface and subsurface on the Lands; (d) The Purchaser will

assume, pay and discharge any and all liabilities, claims or demands arising out of

any environmental conditions in connection with the Property; (e) the Seller is not

presently aware of any citations or complaints regarding existing or pending environmental conditions on the Property.”
since the Director had discretion to order changes to works to reflect

the state of the art in environmental protection, and considering that

discharge requirements for copper were determined on the basis of

site-specific requirements.

On 18 January 1980, CBE wrote to BC Environment, requesting the

transfer of the Anaconda orders to CBE, along with assurances that barring a significant change in the volume or physical and chemical characteristics of the mine water discharge, no improvements or alterations to

the pollution control system would be required to meet current statutory standards (Hodgson: 2/21/80). In its letter, CBE stated that it was a

private company incorporated under the British Columbia Companies

Act on 22 March 1979 (Certificate No. 188, 389). CBE listed its address

and the names of its officers, and attached a letter of reference from the

Bank of Montreal stating that the company had no debt, that its cash

reserves “are in the high five figure range,” that “assets total well in

excess of $1,000,000” and that “[t]he company is considered fully

responsible in its financial affairs” (Bossons: n/a).

BC Environment replied that it wished “[...] to be sure that Copper

Beach Estates Ltd. fully understands the implications of such action”

(Hodgson: 2/21/80). BC Environment stated that

[...] there is no guarantee that an upgrading of the works will not be

required. Major expenditures could be needed in a few years to replace

some of the pipe sections. The potential for underground caving and the

subsequent unacceptable increase of metal concentrations in the mine

water should not be overlooked.

BC Environment again mentioned the posting of security, and added

“[...] however, you may have an acceptable alternative.”

On 29 January 1981, CBE was ordered to

[...] collect and direct all mine drainage water to the discharge point

known as the 4100 foot portal and to discharge this effluent to Howe

Sound via the copper recovery plant and submerged outfall approved by

the Director on 26 April 1977. In addition, you are directed to operate the

copper recovery plant at all times when the dissolved copper level in the

mine water exceeds 15 mg/L and discharge the treated water to the

submerged outfall. During the periods when the mine water contains

less than 15 mg/L dissolved copper, the copper recovery plant may be

bypassed. [...] Additional treatment and/or monitoring may be required

in the future, based on information collected by the Waste Management

Branch (Ferguson: 1/29/81).

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 91
CBE was also required to implement a monitoring program involving

monthly sampling of copper plant “heads” and “tails”248 and analysis

for dissolved copper, as well as quarterly sampling of effluent discharged to the submerged outfall, with analysis for pH, dissolved iron,

zinc, lead, cadmium, sulfate, suspended solids and acidity. Reports

were to be sent to the Regional Manager and the Director of the Pollution

Control Branch of BC Environment. The order made no mention of any

requirement for the posting of financial security. This order replaced

and superseded the orders previously issued by BC Environment to

Anaconda. The Secretariat received no information regarding whether

Environment Canada was consulted regarding the issuance of this

order.

In 1984, BC Environment wrote to CBE, informing CBE that recent

analyses of the copper recovery plant effluent showed copper levels

exceeding 15 mg/L and stating that at the 2200-level portal, effluent was

discharging to Jane Creek instead of being re-routed inside the mine to

the 4100 level, with copper values far in excess of 15 mg/L. Both sources

of effluent were found to be highly toxic to fish (Apostoli: 2/13/84). CBE

replied by saying it would look into the source of the leak at the 2200

level (Cumming: 3/23/84). CBE also pointed out that the 1981 order did

not impose a standard of 15 mg/L for dissolved copper, but rather simply stated that treatment in the copper treatment plant was required if

the “heads” of the copper treatment plant exceeded 15 mg/L (i.e. if copper levels in effluent entering the copper launders exceeded 15 mg/L).

A note to file by a person named Dennis Trudeau249 indicates that

three Government of Canada employees gathered information at the

Britannia mine in mid-July 1984, as a follow-up to a September 1982

survey (Trudeau: 7/4/84). They took samples of effluent from the

2200-level portal and other locations, as well as at the copper launders, to

determine their “effectiveness.” The Secretariat obtained no additional

information regarding the origin, results, or outcome of this information-gathering exercise, what standards the “effectiveness” of the

copper launders was measured against, or which federal government

department was involved.

During the mid-1970s and mid-1980s, BC Environment, Environment Canada and the Department of Fisheries and Oceans carried out

environmental studies into the effects of the mine’s effluent on the

92 FACTUAL RECORD: BC MINING SUBMISSION

248. This meant that effluent had to be sampled before entering the copper launders and

after discharge from the copper launders.

249. Title unknown.
receiving environment.250 In 1986, BC Environment sent CBE a copy of

an environmental assessment report indicating that dissolved metals

concentrations were increasing in Britannia Creek and the adjacent

marine waters, and that dissolved metals concentrations toxic to marine

bacteria, brine shrimp, mussels and young chum salmon were occurring

in Britannia Bay (Stringer: 5/7/86). The assessment recommended that

CBE route all mine effluent to the submerged outfall; that CBE reduce

dissolved metal loadings in the effluent by at least 50%; and that CBE

retain a consultant to do the required work. BC Environment asked CBE

to follow up on an earlier undertaking to obtain cost estimates for

the mine drainage diversion work (from the 2200-level portal to the

4100-level).

In the late 1980s, BC Environment wrote to CBE several times,

identifying harm to the environment being caused by the Britannia

effluent and requesting that CBE comply with the 1981 order. CBE took

no action. Effluent discharged directly from the 2200-level portal to Britannia Creek, and from there to Howe Sound. The copper launders had

become filled with debris. Effluent was also bypassing the submerged

outfall.

During this period, BC Environment twice considered taking

enforcement action against CBE for failure to comply with the 1981

order, but enforcement was hampered by the wording of the order and

by an interpretation contained in a letter from BC Environment to CBE

that the order allowed the submerged outfall to be bypassed if copper

concentrations in the effluent were lower than 15 mg/L (Britannia Reclamation Advisory Committee: 6/17/92). Also, the order did not reflect

current provincial discharge standards. 15 mg/L was one hundred

times higher than the current provincial standard for copper in that type

of effluent (Robb: 7/30/90). Provincial tests later showed that effluent

discharging to Britannia Creek from the 2200-level portal would continue to be acutely toxic to fish even when diluted 10,000 times with fresh

water (Moore: 8/9/93).

BC Environment decided to continue studying the situation and

employees of the Lower Mainland Region of BC Environment recommended issuing a new order. Some BC Environment employees were

concerned that issuing a new order would result in CBE declaring bankruptcy, with liability defaulting to the province (Britannia Reclamation

Advisory Committee: 6/17/92). To avoid this possibility, BC Environment considered naming former property owners to any new order.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 93

250. Facts on the Britannia Mine, Appendix B.
In the early 1990s, Environment Canada was represented on a

provincial “Britannia Reclamation Advisory Committee” (Britannia

Remediation Advisory Committee: 6/17/92). The committee was composed principally of provincial environment and mine ministry officials

from the regional and the provincial capital offices. A document from

that period states “[a] multi-agency committee has initiated two studies.

One study is to characterize the mine wastes and the other is to determine the impact on the receiving environment” (n/a: 12/16/92).

On 20 April 1990, 372900 British Columbia Ltd. purchased a controlling interest in CBE (Drummond: 1/31/94). It appears that financing

for this acquisition came from the immediate resale of CBE assets.251

First, CBE sold a large section of uncontaminated Britannia

lands252 to Tanac Development Canada Corp. (“Tanac”) for a golf

course/condominium development project, for approximately $17M

(Fulber: 2/1/98; Fotheringham: 6/20/99). It appears that while legal

counsel for Tanac consulted with provincial environmental officials

as part of the pre-purchase due diligence process253 (Dixon: 4/6/90),

employees involved in the enforcement of the 1981 provincial remediation order at Britannia only became aware of the sale through the

papers. A fax from late 1991 states

[t]he attached article is from last week’s Squamish Times. Copper Beach is

apparently divesting (they are selling shares for a proposed golf course).

We may be left “holding the bag” if we don’t act soon (Robb: 10/22/91).

Then in mid-1991, CBE proposed to sell a portion of the remaining

Britannia assets, including the Britannia Beach lands, to 40091 British

Columbia Ltd. (“40091”), also for real estate development purposes

(Robb: 6/16/94). Pending the conduct of its due diligence (Alesi:

6/26/91), 40091 advanced $5.8M to CBE and secured this loan with a

mortgage on those assets (Robb: 6/16/94). After conducting its environmental due diligence, 40091 decided to withdraw from the deal but

was unable to obtain the return of its funds from CBE. 40091 obtained a

court order for the sale of the mortgaged assets, an order that remains in

94 FACTUAL RECORD: BC MINING SUBMISSION

251. CBE remained the owner of the Britannia Mine, but control of CBE was now in the

hands of the principals of 372900 British Columbia Ltd. It appears that those persons raised the funds to purchase the shares of CBE by negotiating to sell off valuable parts of the property once they had gained control of the company.

252. Certain pollution issues associated with these lands were later discovered.

253. In the context of business transactions, “due diligence” refers to the level of inquiry

one can reasonably expect from a purchaser to satisfy itself that the business being

purchased is worth the purchase price.
effect at the time of writing (October 2002) (Deputy District Registrar:

11/29/91).

The regional office of B.C. Environment in Surrey notified officials

in the provincial capital office in Victoria (which had issued the 1981

order) that a new order was needed urgently because CBE appeared

to be

attempting to sell the valuable assets of the company (uncontaminated

development property) and retain only the liabilities (the acid generating

mine) for the people of British Columbia to inherit if they should declare

bankruptcy (Robb: 11/8/91).

In August 1991, a flood at Britannia Beach severely damaged the

submerged outfall. The damaged outfall was removed by employees of

BC Environment (Wong: 5/26/93). Since the 1981 order could not be

used to require CBE to replace the outfall, BC Environment did so in

1993-4. BC Environment’s removal of the damaged outfall in 1991 was

considered by provincial government officials to be another obstacle to

the enforcement of the 1981 order (Wong: 5/26/93).

Late in 1993, BC Environment issued an additional order against

CBE (Robb: 11/25/93). The new order stated that the province had discharge objectives applicable to mine effluents; that while such objectives

were generally sufficient to prevent pollution, site-specific conditions

also warranted consideration; and that drainage at Britannia could and

did cause pollution.254 CBE was ordered to hire a consultant to develop a

plan to treat all mine drainage, including drainage from underground

workings and surface run-off from waste rock piles, “to such an extent

that the treated discharge does not cause pollution.” The plan was to

include a description of proposed treatment or other systems, quality

and quantity of discharge, cost estimates and implementation schedule.

CBE was also to apply for a provincial waste management permit and to

submit audited financial statements. Terms of reference were due on

31 December 1993, and the plan was due on 31 July 1994.

No additional parties were named to the new order because CBE

appeared to be willing to cooperate and take steps to resolve the effluent

problem. In addition, CBE had filed a court action in an attempt to

recover $11M from former owners of the company. In addition, BC Environment felt that its legislation did not allow it to issue orders against

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 95

254. Pollution is defined in the British Columbia Waste Management Act as the “presence

in the environment of substances or contaminants that substantially alter or impair

the usefulness of the environment.”
former owners who had not carried on mining at the site. As for former

owners that had carried on activities at Britannia, company searches by

provincial environmental authorities “failed to uncover any existing

companies that have any ties back to the mining [at Britannia], and

[counsel to the province] thinks it unlikely that further (more extensive)

searches will be of any use” (MacDonald: 4/12/94).

The 1993 order was made “without prejudice to any legal action

that may be taken under the Waste Management Act, or other relevant legislation, with respect to the discharges.” The Secretariat obtained no

information regarding whether Environment Canada was consulted

regarding the issuance and content of this order.

5.5.2 1994-1996 / Orphan Sites Funding and the Search for a Buyer

In February 1994, provincial environmental officials classified the

Britannia site using criteria developed under the National Contaminated Sites Remediation Program (“NSCRP,”see above, s. 5.3.4.1).

Britannia scored 86 out of 100, 70 being the threshold for high risk.

Provincial officials concluded that

[t]herefore the site would be eligible for Orphan Sites Funding if it were

ever to become an “orphan,” which it currently is not. Gordon will send

me a copy of the assessment, and he considers that item of the plan to be

completed (n/a: 2/28/94).

The Secretariat obtained no information regarding the assessment

undertaken to classify Britannia under the NSCRP or as regards the

“plan” mentioned above.

In April 1994, apparently upon learning that CBE was engaging in

logging at Britannia in violation of the mortgagee’s rights,255 40091

obtained a court order naming Coopers and Lybrand Ltd. receivermanager of the Britannia assets. CBE thereby lost its principal source of

income, rents from residents of Britannia Beach. CBE told provincial

officials it could not comply with the 1993 order, partly because it no longer had control of the property. On application by provincial environment officials, the court order was amended in August of that year.

Under the order, CBE employees had the right to access the property and

the receiver-manager was given the power to carry out environmental

investigations (Supreme Court of British Columbia: 8/2/94). To ensure

continued delivery of utility services to the community, the receiver96 FACTUAL RECORD: BC MINING SUBMISSION

255. Personal communication from Ralph Fulber, 23 May 2002.
manager was given full immunity from personal liability under provincial environmental laws in connection with the exercise of its powers

and duties under the order (Doyle: 8/10/94).

In August 1994, counsel to the province clarified that CBE

is not bankrupt or in receivership, but simply that the court had appointed

a receiver/manager to look after the property. CBE still owns the property, can still be ordered by the Ministry (presumably are still legally subject to existing orders), and could be charged/prosecuted (MacDonald:

8/29/94).

During 1994, several companies came forward expressing an interest in

purchasing 40091’s interest in the Britannia assets (MacDonald: 2/7/95).

BC Environment consulted with Environment Canada regarding conditions to be attached to any sale.

Environment Canada supported BC Environment’s intention to

make compliance with the 1993 order a condition of sale, subject to possibly extending the deadline for filing the required plan to treat mine

effluent at Britannia. Environment Canada also recommended attaching

a restrictive covenant to the property titles to inform prospective buyers

of pollution abatement responsibilities, and suggested preventing severing of surface and subsurface titles, or division of the contiguous mineral claim block overlying the whole area, to avoid weakening the clear

link between the pollution problem and ownership of the mineral claims

(Nassichuk: 6/16/94). BC Environment replied that a restrictive covenant required the consent of the owner, and that surface and subsurface

titles were already separate, although BC Environment would object in

court to any application to sell such titles to separate parties.

In July 1994, BC Environment applied to Environment Canada for

joint funding under the NCSRP to deal with pollution issues at Britannia

(Hubbard: 7/18/94). In September 1994, a BC Environment employee

advised his colleagues that an Environment Canada employee had

informed him that

“[...] there is now a signed agreement between the province and the feds

with respect to Britannia. The agreement utilizes the federal Fisheries Act

as a mechanism to recover funds—I believe the feds have authorized the

expenditure of $500,000 before March 31, 1995, on the condition that the

province matches this amount” (Robb: 9/12/94).

Information gathered by the Secretariat did not include a copy of this

agreement. The Secretariat obtained a copy of a signature page of a

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 97
document containing a “Resource Summary” that indicated projected

expenditures from 1994 through 1996 totaling $4.3M “(excl. plant construction)” and contained an explanatory note stating

[t]he above estimated costs are very rough $ estimates. The cost of sealing

and or relocating acid generating wastes located on surface will be contingent on the quantity and location of the wastes to be sealed or moved. Capital and operating costs for AMD treatment [...] for lime neutralization,

approximately adjusted for inflation will approximate $4M for construction and $1.2M per year for operation. Capital and operating costs for

other technologies are not available” (n/a: 1/9/94).

The signatures are for “Canada’s representative on the Management

Committee” and “British Columbia’s representative on the Management Committee,” respectively. The British Columbia signature is dated

8/29/94 and the Canada signature is dated 1/9/94. Other documents

reference such an agreement (McCracken: 4/11/95; Niemela: 4/13/95).

A provincial document entitled “Britannia Beach Acid Mine Drainage

Pollution” states “[a]t that time (29 August 1994), the federal government had up to $2 million for a 50/50 federal/provincial remediation

program, but this was later revised down to $300,000, and eventually the

federal funds were reallocated” (n/a: 11/27/95).

The Environment Canada employee referred to above scheduled

a multi-agency meeting and had proposed to proceed with a remediation program in two stages, beginning with a request for proposals

for an effluent treatment pilot project, followed by a request for proposals for the design and construction of an effluent treatment plant (Robb:

9/12/94). He also recommended naming a project manager to act as an

intermediary between government agencies and consultants. BC Environment cautioned that this initiative would have to be brought to the

attention of the court, as it could affect the purchase price for the Britannia assets.

A multi-agency technical committee was struck to prepare a budget and work plan for the use of NCSRP funds at Britannia. In late 1994,

the Environment Canada representative on this committee urged his

provincial counterparts to obtain approval for immediate work on a

pilot plant to test proposed effluent treatment methods at Britannia. He

argued that significant progress in this direction would increase the likelihood of federal funding in the following fiscal year, and “[t]he sooner

we can stop/treat the existing effluents, the better” (McCandless:

11/1/94).

98 FACTUAL RECORD: BC MINING SUBMISSION
The provincial chair of the technical committee subsequently

wrote to the assistant director of the Industrial Waste and Hazardous

Contaminants Branch of BC Environment, stating that

the Britannia Technical Committee which I chair is in danger of floundering unless it soon receives direction from an executive committee having

the mandate to insure that progress in remediating the acidic drainage

from the Britannia mine site is made in an expeditious manner (Ford:

11/3/94).

Provincial officials were concerned that spending federal and provincial

funds at Britannia with the intention of recovering costs from a potential

purchaser of the Britannia assets risked scaring away potential purchasers. One BC Environment employee noted that

[i]f we have already started to act, and intend to bill them for it, then they

will have to pay our costs (which will almost undoubtedly be much more

expensive than a private solution). This may well scare off purchasers,

leaving no one to address the problem or recover money from (MacDonald: 9/12/94).

Officials at BC Environment also felt that cost recovery potential could

be compromised if the purchaser was not given an opportunity to present its own remediation options or at least provide input to solutions

being considered by government agencies. A lingering concern was that

the province and the federal government might spend several million

dollars studying the problem and identifying a solution, only to be left

with no funds to implement the solution (Wong: 9/30/94).

The NCSRP required provinces to recover federal and provincial

costs from “responsible parties.” In most cases, this meant that the provinces had to amend their environmental legislation to add new liability

and cost recovery provisions.256 In June 1993, the British Columbia legisSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 99

256. See Core Group on Contaminated Site Liability, CCME, Contaminated Site Liability

Report – Recommended Principles for a Consistent Approach Across Canada PN 1122

(Winnipeg: Manitoba Statutory Publications, 1993). Recommended Principle No. 7:

“Remediation legislation should provide the necessary authority and means to

enable the recovery of public funds expended on the remediation of contaminated

sites from those persons deemed to be responsible for such sites. Furthermore,

member governments should strive to achieve environmental priority over all

other claims or charges on an estate that has entered receivership or bankruptcy.”

Under the federal Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended by

S.C. 1997, c. 12, s. 15 (“BIA”), “for bankruptcies, proposals or receiverships in

respect of which proceedings are commenced after 30 September 1997, any claim by

the Crown in right of Canada or a province against a debtor in a bankruptcy,

proposal or receivership for costs of remedying any environmental condition or
lature had given royal assent to legislation (“Bill 26”) amending the

Waste Management Act to add a comprehensive framework for addressing the remediation of contaminated sites.257 Bill 26 created

wide-ranging order powers against past and present owners and operators, cost recovery provisions, and powers to prevent companies from

reducing assets needed to pay for clean-up. To come into force, however,

Bill 26 required the adoption of a contaminated sites regulation. The regulation was not adopted until April 1997 and the contaminated sites provisions of the WMA came into force on 1 April 1997.

Given that Bill 26 was not in force in 1994, BC Environment had to

identify other legislation that could be used to recover clean-up costs.

Section 42 of the Fisheries Act (see Appendix 6) was initially considered

for this purpose, but was ruled out by counsel for British Columbia for a

number of reasons (Macdonald: 8/29/94 and n/a: n/d258). One reason

was that liability under that provision was seen as fault-based by counsel for the province, making it difficult to invoke against a current owner

who had never carried on mining at the site.259 Another concern was that

s. 42 provides a defense to liability in cases where pollution is caused by

“a natural phenomenon of an exceptional, inevitable and irresistible

character”: counsel for the province remarked that from the perspective

of CBE, the ARD discharging from the Britannia Mine might be seen as

such a phenomenon.

The province decided to use s. 17 of its Mines Act instead (Wong:

10/3/94).260 This provision allowed the province to secure cost recovery

100 FACTUAL RECORD: BC MINING SUBMISSION

environmental damage affecting real property of the debtor is secured by a charge

on the real property [...] and the charge [...] ranks above any other claim, right or

charge against the property,” notwithstanding any other provision of the BIA or

anything in any other federal or provincial law.

257. Bill 26, the Waste Management Act Amendment Act, was given royal assent on 18 June

1993.

258. Document does not list author or date.

259. In fact, s. 42 does not require proof of fault against the person having ownership or

control of a substance, only those having caused the pollution.

260. In 1994, s. 17 read as follows:

Abandoned mine

17. (1) Where an inspector is of the opinion that work may be necessary in, on or

about a closed or abandoned mine in order to avoid danger to persons or property

or to abate pollution of the land and watercourses affected by the mine, he may

enter on or below the surface of the mine and may cause work to be done to remove

or alleviate the danger or remedy the pollution.

(2) The costs incurred for work done under this section shall be paid from the consolidated revenue fund without an appropriation other than this subsection.

(3) The amount expended plus interest at a prescribed rate is a debt due to the

Crown and forms a lien and charge on the mine or mineral title in favour of the government.
by registering a lien against title, effectively blocking any transfer of title

pending reimbursement of its clean-up costs.

While the text of s. 17 is fairly straightforward, using this provision

in the Britannia context proved problematic. First, using s. 17 meant that

BC Mines had to take the lead in the clean-up effort, something it was

reluctant to do (Ford: 9/28/94). In addition, while s. 17 allows BC Mines

to expend clean-up funds directly from the provincial consolidated revenue fund, BC Mines nevertheless insisted that the Britannia proposal be

sent to the provincial treasury board for approval, which involved

delays (Sihota: n/d). Finally, there were concerns that the cost of research required to develop solutions to the Britannia effluent problem

might not be recoverable under s. 17 (as not being “work,” see text of

s. 17, below), and that discharges to Howe Sound in particular might not

fall within the scope of s. 17, as Howe Sound might not qualify as a

“watercourse” pursuant to the Mines Act (MacDonald: 9/27/94).

During late 1994 and throughout 1995, the process of moving forward on securing provincial funding and beginning work under the

auspices of the NCSRP was hampered by parallel procedures aimed at

finding a buyer for the Britannia assets. The problem was explained by

Master Patterson of the Supreme Court of British Columbia in delivering

his reasons for adjourning foreclosure proceedings regarding the Britannia assets (Patterson: 10/19/94). According to Master Patterson, most

offers filed with the court came from “shell” companies (with no assets)

and provided for long due diligence periods to allow the potential purchaser to find and secure government approval for a solution to Britannia’s environmental problems before assuming ownership (Patterson:

10/19/94). 40091 felt that it could not accept any such offer, however

reasonable, because during the due diligence period, the province and

the federal government might incur significant environmental research

costs at Britannia, which would then come off the top of any proceeds of

sale. 40091 would therefore lose some, maybe even all, of its investment,

and the purchaser would get a windfall (Bury: 9/20/94). The court

agreed, and asked that the governments specify clean-up costs

(Patterson: 10/19/94). The governments, in turn, did not possess sufficient information about the scope of the environmental problem and

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 101

(4) Notice of the debt in the prescribed form may be registered as a charge in the

land title office or in the office of the chief gold commissioner, and no transfer of title

or other dealing with the mine shall take place until the debt is paid and the notice

cancelled.

(5) The Minister may, with or without payment and on conditions the minister may

impose, cancel the notice registered under subsection (4) and, on that happening,

the mine may be transferred or otherwise dealt with.
possible solutions to be able to advance any dollar figure with certainty

(Doyle: 11/23/94).

The province eventually agreed not to register clean-up costs as a

first charge on any proceeds of sale. Instead, an order would be issued

making any sale subject to s. 17 of the Mines Act, thereby allowing for

cost-recovery negotiations between the province and the parties to any

proposed sale (Doyle: 11/23/94).

In May 1995, the Regional Director General of Environment Canada wrote to the Deputy Minister of Environment of British Columbia

expressing his “[...] concern with the lack of progress in addressing the

severe pollution at the abandoned Britannia mine site” and indicating

that “[w]e are prepared to work with your staff on this matter and provide any additional information you might require” (Anthony: 5/9/95).

In June 1995, he advised the Assistant Deputy Minister of Environment

of British Columbia that

[t]he federal government is prepared to provide whatever assistance we

can in the way of technical and scientific support to ensure that this long

outstanding problem is addressed and resolved (Anthony: 6/22/95).

In early June 1995, with the deadline for provincial treasury board

approval of budget allocations fast approaching, BC Environment

asked Environment Canada to drop its requirement for a private sector

remediation proposal to be approved prior to federal disbursement

under the NCSRP. It also advised that it seemed unlikely that the British

Columbia Treasury Board would agree to allocate funding of several

million dollars in the current fiscal climate (Gunton: 6/5/95). BC Environment noted that a private sector remediation proposal had been

submitted and would take some time to review. In the interim, BC Environment proposed to obtain treasury board approval, by 30 June 1995, to

cost-share an expenditure of $600,000 for environmental research. It was

felt that this would have the advantage of improving “private sector

certainty and lead to site rehabilitation.”

At a national meeting on funding decisions for the final year of the

NCSRP, the NCSRP Program Committee decided that federal funding

commitments for Britannia would be withdrawn unless the province

had confirmed matching funds in the amount of $305,000 by 30 June

1995 and the province committed to

securing additional funds as soon as possible in order to complete a significant remedial project, such as piping the acid mine drainage to a submerged outfall, this fiscal year (Anthony: 6/22/95).

102 FACTUAL RECORD: BC MINING SUBMISSION
In the end, some federal funds were disbursed through the NCSRP

to pay for monitoring work at Britannia (Niemela: 4/13/95),261 but

nowhere near the $2M the federal government had initially set aside

under the federal-provincial Britannia agreement (MacDonald: 10/27/

94). In 1995, the outstanding federal commitment of $300,000 lapsed

(Niemela: 4/13/95; MacDonald: 4/19/95; Wong, 7/7/95).

The fact that little progress had been made in carrying out environmental investigations at Britannia during the first fiscal year (1994/95)

in which the mine was eligible for funding under the NCSRP was a

factor that contributed to the withdrawal of federal funding (Niemela:

4/13/95; Anthony: 5/9/95; Anthony: 6/22/95; McCracken: 7/7/95).

Beginning in mid-1995, provincial attention again shifted to finding a

purchaser for the site.

In 1995, a company named No. 357 Taurus Ventures Ltd.

(“Taurus”) obtained an option to purchase the mortgage held by 40091,

and in May of that year, it began negotiations with the province on environmental matters. Taurus proposed to purchase the mortgage at a

discount; commit a specific amount of money to pollution abatement;

and, in return, obtain an indemnity from the provincial government for

any environmental liability exceeding its fixed financial commitment

(n/a: 11/27/95; MacDonald: 12/14/95).

This proposal was not satisfactory to BC Environment because

there remained too much uncertainty regarding the scope of the Britannia pollution problem, how it could be addressed, and what the total

cost would be. Funds committed by Taurus might be insufficient, resulting in the pollution continuing or the province footing the bill. Furthermore, increases in property value resulting from a provincial clean-up

effort would accrue to Taurus, even though the province had paid for the

work. As a result, the province considered doing an independent assessment of the development potential of the Britannia lands to determine

whether to become the owner itself (n/a: 11/27/95).

Correspondence from early 1996 indicates that BC Environment

was considering a “phased approach” to solving the Britannia problem,

beginning with the installation of a surface pipeline to carry effluent

from the 2200-level portal to the 4100-level portal for discharge to Howe

Sound via the submerged outfall. This would stop discharges of effluent

to Jane and Britannia Creeks (McCracken: 2/14/96). Environment CanSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 103

261. A letter indicates agreement by the federal government to pay for its half of an

invoice for $17,089.73 for analytical costs (Niemela: 4/13/95).
ada stated its agreement in principle with such an approach, noting,

however, that “[t]he combined flows will still be toxic, and consequently

a violation of the Fisheries Act” (Niemela: 4/24/96). Environment Canada stated that it supported a cooperative, phased approach for ultimate

compliance with the Fisheries Act, provided that certain conditions be

stipulated in any agreement with a developer of the Britannia mine

site.262

5.5.3 1997-2001 / Scientific Advances, Remediation Proposals and

Potentially Responsible Parties

The effluent monitoring work originally funded by Canada and

British Columbia under the NCSRP (see above, s. 5.5.2) continued at

Britannia (2200-level, 4100-level, Britannia Creek) through 1999 and

beyond (Nassichuk: 2/12/99). Over the years, Environment Canada

and BC Environment entered into contribution agreements respecting

the purchase, installation, and operation of monitoring equipment

(Nassichuk: 2/12/99). In 1999, Environment Canada entered into an

agreement with CBE that contemplated CBE gradually taking over

ownership and operation of such equipment (Nassichuk: 3/30/99).

Environment Canada estimates that between 1991 and 2001, it incurred

monitoring and engineering expenditures of approximately $320,000 in

operational costs at Britannia, excluding salary costs.263 A three-year

study conducted by Fisheries and Oceans Canada during 1997-2000 to

provide Environment Canada with information on impacts of Britannia

effluent on fish and fish habitat resulted in expenditures estimated at

$450,000, excluding salaries.264

In 1997, Environment Canada commissioned a report to assess a

pipeline to carry the 2200-level ARD to the 4100-level for discharge

through the submerged outfall. It commissioned a summary and overview of effects of the Britannia effluent on juvenile salmonids and the

marine environment in Howe Sound (EVS Environmental Consultants:

04/00/97). It co-funded a study with BC Environment in which

Cominco Engineering Services Inc. carried out pilot scale testing of a

104 FACTUAL RECORD: BC MINING SUBMISSION

262. The document received by the Secretariat regarding Environment Canada’s review

of BC Environment’s phase approach is incomplete. Environment Canada’s requirements in connection with this proposal are therefore unknown.

263. Facts on the Britannia Mine at 6.

264. Ibid. This study was financed through the Environmental Science Strategic Research Fund of Fisheries and Oceans Canada, which “supports targeted research

aimed at yielding scientific advice on the conservation and protection of marine and

freshwater ecosystems;” telephone conversation with Wayne Knapp, Water Quality Technician; Pacific and Yukon Region, Fisheries and Oceans Canada, 27 August

2002.
high density sludge (“HDS”) process using pulp mill ash and lime

to neutralize and remove metals from the 4100 level ARD.265 It also

co-funded, with BC Environment, a pre-feasibility design and cost estimate for a treatment system for Britannia ARD and continued, into

1998, to look into ways to minimize effluent piping costs between the

2200- and 4100-level, and to monitor ARD to optimize treatment plant

design.266 Between 1997 and 2000, DFO published six papers concerning

effects of Britannia ARD on various elements of the marine environment.267 These papers concluded that mussels stationed within 2.1 km of

Britannia Creek were observed to have significant adverse biological

effects that were likely related to exposure to metals from contaminated

mine waters, poor feeding conditions, and interaction with natural factors such as salinity and turbidity. They also stated that nearshore fishes,

especially juvenile salmonids, were negatively impacted by ARD from

Britannia Creek, and that in order to restore the productive capacity of

the Britannia Beach estuary, contamination from ARD must be eliminated.268 A 1997 PhD thesis (Chretien: 05/00/97) and a 1999 master’s

thesis (Marsden: 04/00/99) added to the literature on pathways and

effects of pollutants released by the Britannia ARD.

Proof of negative environmental effects is not required to take

enforcement action under s. 36(3) of the Fisheries Act, but it is required

to issue a remediation order under the BC Waste Management Act.269

According to an employee of Fisheries and Oceans Canada, DFO and

EC employees believed that generating information on environmental

impacts of the Britannia effluent would create momentum toward finding a solution to the pollution problem at Britannia.270 The federal

emphasis on providing technical and scientific support to the province

regarding Britannia, rather than pursuing independent enforcement of

s. 36(3) against the owners of the Britannia Mine, was consistent with

the spirit of ongoing, pan-Canadian, federal/provincial environmental

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 105

265. Ibid. at 4.

266. Ibid., Appendix D ‘A Short Chronology of Enforcement and Monitoring at the Britannia Mine Site’ at 3.

267. Facts on the Britannia Mine, Appendix B ‘List of Howe Sound and Britannia Beach

Sub-Tidal Marine Reports; Note to File 4484-37/C1235, Environment Canada,

February 2002’ at 3.

268. C.D. Levings, “Effect of an Abandoned Mine on the Nearshore Ecosystem, Britannia Beach”; online: Fisheries and Oceans Canada <http://www.pac.dfo-mpo.

gc.ca/oceans/meq/MEHSD/mines.htm> (last updated: 14 May 2001).

269. S. 27.1(3) of the WMA.

270. Telephone conversation with Wayne Knapp, Water Quality Technician, Pacific and

Yukon Region, Fisheries and Oceans Canada, 27 August 2002 and Facts on the

Britannia Mine at 6: “The results of these studies [...] provided a rationale for pursuing site remediation.”
harmonization efforts, which encouraged each level of government to

contribute its particular expertise to the solution of environmental

compliance problems (see s. 5.3.3, above).

On 1 April 1997, the WMA amendments came into force, with

a new “Part 4” entitled “Contaminated Site Remediation”271 and a

detailed Contaminated Sites Regulation (“CSR”).272 Part 4 of the WMA

sets out rules for identifying contaminated sites; lists categories of persons liable (and those not liable) for clean-up at those sites; and sets out

principles for implementing remediation. The CSR provides detailed

information on the meaning and operation of the provisions of Part 4 of

the Act.

In September of 1997, Coopers and Lybrand, the receiver-manager

of the Britannia assets, filed a motion with the Supreme Court of British

Columbia stating its intention to apply for permission to take delivery of

contaminated soils at the Britannia site under a “reclamation” plan

developed by CBE in July of that year. The plan consisted of using contaminated soils to cover “unsightly rock debris left over from mining

activities” at the site (Biagi: 9/16/97). Part of the income from this venture would go toward achieving compliance with the 1981 environmental order. The plan included re-activating the copper launders, with the

possibility of increasing their capacity. Coopers and Lybrand asked to be

allowed to enter into soil management agreements under the WMA273

“without any derogation from its exemption from environmental liability” under the 1994 court order (Biagi: 9/16/97).

BC Environment asked Environment Canada for comments on the

receiver-manager’s proposal (Pomeroy: 9/23/97). Environment Canada advised that

DOE has no direct authority to assess plans by Coopers and Lybrand to

receive and dispose of soil at the mine site because there is no apprehension of a risk to fish or fish habitat. We have read Coopers and Lybrand’s

draft Order, and the supporting Affidavit which includes drafts of soils

agreements and a geotechnical report. At this time we do not intend to

instruct our Counsel to appear at any hearing, but request you consider

our recommendations in instructing your own Counsel (Pomeroy:

9/23/97).

106 FACTUAL RECORD: BC MINING SUBMISSION

271. R.S.B.C. 1996, c. 482 (Supplement).

272. B.C. Reg. 375/96.

273. As required by ss. 28.1 et seq. on “Contaminated soil relocation” in Part 4 of the

WMA.
Environment Canada pointed out that the placement of contaminated

soils at the Britannia site could hamper remediation efforts aimed at

rehabilitating the mine site area. The letter stated: “As you are aware,

this drainage violates the Fisheries Act and your Ministry’s legislation.”

(Pomeroy: 9/23/97). Environment Canada recommended that access to

portals not be blocked, and pointed out that if residential development

had the greatest promise of yielding revenue from the site, contaminated soil disposal should avoid potential residential areas.

Environment Canada suggested advising the court that under the

terms of the 1981 order, BC Environment could issue a new order at any

time (Pomeroy: 9/23/97). Environment Canada advised that “[...] the

cementation plant operation [i.e., copper launders] contemplated in that

Order does nothing to improve water quality, but rather it would produce a copper-laden hazardous waste and cause disposal problems.”

Environment Canada questioned the percentage of revenue that

the receiver-manager proposed to allocate to reclamation/environmental remediation, and stated its assumption that the province would be

studying the requirement for a Mines Act reclamation permit, despite a

16 May 1997 letter from BC Mines to CBE stating that no such permit was

required (Pomeroy: 9/23/97). Environment Canada made several comments on the sufficiency and correctness of information contained in a

geotechnical report filed with the proposal. Environment Canada suggested meeting with BC Environment and BC Mines, stating that the

issuance of an engineering report on treatment plant costs, expected in

February 1998, would require a coordinated plan between the federal

and provincial government to initiate action on site remediation “and

deal with expected renewed interest from land developers” (Pomeroy:

9/23/97).

On 1 October 1997, Coopers and Lybrand informed the province

that “in light of the provincial position on the issue of the environmental

liability of the receiver-manager,” it was withdrawing its court application regarding the contaminated soils proposal (Biagi: 10/1/97).274

On 2 October 1997, counsel for CBE notified counsel for Coopers

and Lybrand that CBE intended to take over the contaminated soils project, beginning with a first shipment the following day, and that the

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 107

274. It appears that BC Environment refused to agree to extend the scope of the

receiver-manager’s special immunity from environmental liability to cover the

landfill operation being proposed by the receiver-manager.
receiver-manager had no power to prevent CBE from doing so. CBE

assured the receiver-manager that no permits were required. Upon

learning of CBE’s intention, counsel for the province wrote to CBE,

reminding CBE that he had told the company that Mines Act approvals could be required for reclamation work, and stating that he was

not aware of any decision by the Regional Waste Manager regarding

whether environmental permits were required.

On 8 October 1997, the BC Deputy Chief Inspector of Mines

advised CBE that CBE had to apply for a permit under s. 10 of the Mines

Act for its reclamation project (Errington: 10/8/97). He also issued a

notice to CBE and others, stating that he had become aware that a fraudulent letter was in circulation, purporting to inform CBE, on behalf of

BC Mines, that BC Mines had no interest “in the reclamation work

described, as such works are not covered under Mining Legislation in

the old minesite area” (Price: 5/16/97). The Deputy Chief Inspector of

Mines denied that any such letter had ever been sent to CBE. He pointed

out that the letter was written on obsolete ministry letterhead, had an

incorrect file number, the wrong title for the author, and a fraudulent

signature (Errington: 10/17/97).

On 22 October 1997, CBE wrote to BC Mines, acknowledging that it

required a reclamation permit and proposing to file a reclamation plan

for the entire mine site (Drummond: 10/22/97). The principal shareholder of CBE, Tim Drummond, stated that

I am now of the firm belief that the mine site has to be dealt with as a whole,

and under the auspices of the Mines Department, taking into account all

relevant legislation that would pertain to the site.

CBE proposed to incorporate completion of an effluent diversion pipeline from the 2200 portal to the 4100 level into this reclamation plan.

On 29 October 1997, Environment Canada wrote to the BC Chief

Inspector of Mines, welcoming BC Mines’ “renewed focus on the Britannia problem,” and offering input on CBE’s proposal (Nassichuk:

10/29/97). The letter stated

Britannia presents a very complex and expensive problem. Believing that

no single party or government agency can solve it working alone, DOE

[Environment Canada], with generous help from others, has taken steps

towards designing the treatment plant necessary for the site to achieve

compliance with the Fisheries Act (Nassichuk: 10/29/97).

108 FACTUAL RECORD: BC MINING SUBMISSION
Environment Canada invited BC Mines to attend a steering committee

meeting with the consultants working on treatment plant design

(Nassichuk: 10/29/97). BC Mines was requested to carry out assessments of the 4100-level concrete plug [built by Anaconda in 1977 to regulate effluent flow from the mine; see above, s. 5.5.1] and various portals

to identify safety issues that might impede research on effluent treatment options (Nassichuk: 10/29/97). Environment Canada stated that

[w]e are aware of plans to deposit soil on the mine properties, and the disturbing irregularities in the initial approach taken by Copper Beach

Estates Ltd. Despite this, we believe that the idea is environmentally

sound, provided the soil deposition meets MELP requirements and has

professional supervision. Earnings from receiving soil could allow work

to begin on permanent reclamation and progress towards compliance

with the Fisheries Act. Accordingly, DOE [Environment Canada] strongly

supports a negotiated approach with Copper Beach Estates Ltd. that

may secure your Ministry’s approval for soil deposition at Britannia

(Nassichuk: 10/29/97).

At this time, BC Environment requested its counsel to attempt to

determine whether there remained any potentially responsible persons

with respect to the contamination at Britannia (Driedger: 12/15/97). A

December 1997 e-mail from the Deputy Director of Waste Management

at BC Environment (the “Deputy Director”), states

Dennis has now completed his searches and although he has identified a

possible successor to Anaconda, namely East-West Caribou Mines, and

that he considers this firm and Copper Beach Estates to be potentially

responsible persons under the WMA, neither company appear to have

any accessible financial resources. It appears that the last real asset of the

successor company was disposed in 1993. Dennis also looked into a possible connection between Arco Petroleum and Anaconda Canada, but he

could not establish a linkage. [...] The results of this latest search unfortunately leave us with the singular situation that has existed for Britannia

since Copper Beach was placed in receivership. There remains a significant environmental problem needing to be fixed, and there remains no

obvious source of funding (Driedger: 12/15/97).

The Deputy Director noted that the province had recently contributed

$15,000 toward a federal/provincial initiative to explore the validity of

some possible remedial actions, but that in light of the magnitude of

the problem, considerably larger funding would be required to solve

the problem. Regarding CBE’s soil relocation proposal, he stated

“[u]nfortunately, to date it appears that this proposal is more geared

towards relieving creditors than with resolving the environmental

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 109
problems.” He also expressed concern over inaction by the receivermanager on environmental matters at Britannia. He recommended

applying to the court for cancellation of the receiver-manager’s immunity from environmental liability, given the revised WMA protected all

receiver-managers from liability in connection with historical contamination, while making them responsible for contamination they caused

or allowed to occur and requiring them to “expend available funds”

to comply with WMA remediation requirements.275

The Deputy Director then stated that

[w]e cannot let this situation exist indefinitely, and if nothing else is available, we need to begin assessing what would be the costs to the federal and

provincial governments if the site was treated as a high risk orphan site,

what options exist to successfully contain and control the contamination,

and what exists that is associated with the site to offset, either in the short

or long term, some of these costs. In short, we have to begin to remove

some of the legal barriers that are presently inhibiting action on our part,

work out an action plan, and then try to figure out how we can costeffectively achieve our goals. I recommend that we plan to meet in January

[1998]. Our federal counterparts should also be at the meeting, as well as

our legal counsel.

The new Part 4 of the WMA defined “orphan site” as

(a) a contaminated site for which a responsible person cannot be found or

is not willing or financially able to carry out remediation in a time

frame specified by a manager, or

(b) a contaminated site of which a government body has become the

owner subsequent to the failure of the former owner to comply with a

requirement to carry out remediation at the site.

The WMA allowed managers to determine that a contaminated site was

a “high risk orphan site,” and under the WMA, the BC Minister of the

Environment could decide that at a high risk orphan site, or at a contaminated site “that is not otherwise being adequately addressed,” the government would undertake remediation necessary to protect human

health or the environment.276 Under the CSR, the determination that a

site is a high-risk orphan site is to be made on the basis of criteria set out

in a protocol established by the Director.277 No such protocol exists.

110 FACTUAL RECORD: BC MINING SUBMISSION

275. S. 26 of the CSR.

276. Ss. 26(1) and 28.4(1) and (2) of the WMA.

277. Ss. 53 and 61 of the CSR.
An e-mail from a BC Environment Surrey Regional Office

employee providing information about CBE’s soil relocation proposal to

persons scheduled to attend a January 1998 meeting indicates that the

proposal was being considered in part because “[t]he ARD problem is a

significant pollution concern for which BCMELP [BC Environment] and

Environment Canada appear to have no means to address [sic] at this

time. Furthermore, the contaminated soils could have the positive effect

of reducing ARD generation by providing an earth cover that would

reduce infiltration of water into acid-generating waste rock.” The e-mail

states that BC Environment would recommend making project approval

subject to bonding,278 given the financial condition of CBE (Azevedo:

1/16/98). It would also recommend a public meeting regarding the

mine reclamation permit application.279

On 11 March 1998, the BC Chief Inspector of Mines notified CBE

that CBE’s application for a permit under s. 10 of the Mines Act was not

approved, because its “pilot reclamation program” proposal for Britannia was still too conceptual. CBE was also advised that proof that the

proposal complied with WMA requirements for the relocation of contaminated soils would be central to acceptance of the proposal by BC

Mines (Hermann: 3/11/98). BC Environment notified the project proponents of its conditions for approval of the proposal on 12 March 1998

(Robb: 3/12/98). These conditions required the proponents to file an

application for WMA approvals supported by detailed engineering

assessments and facility design; post financial security; and engage in

public consultations. Any permit application would be copied to other

agencies, including Environment Canada, for their comments.

In May of 1998, BC Environment advised three corporations

(CanZinco Ltd. (“CanZinco”), Arrowhead Metals, and Atlantic Richfield Corporation (“ARCO”)) that they were being named as potentially

responsible persons (“PRPs”) in connection with pollution liability at

the Britannia Mine pursuant to the WMA, and informed them that submissions on the issue of their liability and that of others would be

accepted until February 1999.280

Throughout 1998, CBE’s reclamation proposal continued to

evolve. Contaminated soils would no longer be disposed of in different

places across the site, but would be trucked up Mount Sheer for disposal

in Jane Basin as part of a long-term landfill operation. It was hoped that

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 111

278. Using its new powers under s. 27.1 of the WMA, which included requiring the posting of security.

279. S. 27.5 of the WMA.

280. Facts on the Britannia Mine, Appendix D at 3.
over time, the accumulation of fill would prevent infiltration of water to

the mine, thereby reducing effluent flow from the mine. The proposal to

treat effluent using “copper launders” (as required by the 1981 provincial remediation order, see above, s. 5.5.1) was replaced by a plan to build

an effluent treatment plant using HDS technology that had been proven

to be effective at Britannia by consultants hired by Environment Canada

and the province. On the recommendation of the Squamish Lillooet

Regional District, the Fraser Basin Council was asked to facilitate public

input into the regulatory process in connection with CBE’s reclamation/remediation proposal.

CBE filed applications for a mine reclamation permit, a waste discharge permit, and a refuse discharge permit in mid-March 1999. The

Fraser Basin Council held three public information sessions and a

regional forum in April and May of 1999. At these meetings, Environment Canada and DFO made presentations and fielded questions

regarding the nature of the environmental problem at Britannia. Written

comments from the public were accepted until mid-June. Over a hundred written submissions were received (Robb: 8/19/99).

A multi-stakeholder delegation, including representatives from

the Fraser Basin Council, CBE, H.A. Simons; the District of Squamish;

Environment Canada; Fisheries and Oceans Canada; BC Environment;

BC Mines; and the Squamish-Lillooet Regional District fielded questions

from the public at meetings of the Pemberton Council (6 April 1999); the

Whistler Council (6 April 1999); the Squamish-Lillooet Regional District

(15 April 1999); and the District of Squamish Council (13 April 1999).

Meeting minutes recorded questions and answers, but do not indicate

who asked and who answered the questions. It was explained that CBE’s

treatment plant and landfill operation was expected to cost $10-11M to

build (including construction of an aboveground pipeline to divert

effluent from the 2200-level portal to the 4100-level) and that the treatment plant would cost $800,000/year (decreasing over time) to operate.

$10M was being raised by CBE through private backers. Revenue from

tipping fees would be set aside toward a Mines Act reclamation fund

(with an initial contribution of $250,000). The fund was expected to

increase to $25M over twenty-five years, at which time interest from the

fund was expected to cover treatment plant operating costs (Minutes,

District of Squamish Council Meeting: 4/13/99).

In June 1999, the Fraser Basin Council released its public consultation report (Fraser Basin Council: 6/20/99). The report identified strong

public support for a treatment plant, with concerns over sludge

112 FACTUAL RECORD: BC MINING SUBMISSION
disposal; qualified approval and outright opposition to the landfill

proposal, including concerns regarding potential water pollution and

transportation safety issues; considerable concern regarding the financial feasibility of the project, including suspicion regarding CBE,

criticism regarding the vagueness of the business plan (potential fluctuations in tipping fees, supply of contaminated soils281), and a view

shared by some landfill opponents that the federal and provincial governments should share the cost of the solution to the Britannia ARD

problem. Britannia Beach residents supported the “social” component

of CBE’s proposal, which consisted of giving the residents security of

tenure by transferring community lands to a federal/provincial housing

corporation.282

On regulatory matters, some members of the public were concerned about why CBE’s proposal had not triggered an environmental

assessment under federal and provincial legislation.283 Participants also

wanted to know what standards would be specified in permits and how

permits would be reviewed, and they asked to be given an opportunity

to review permits prior to final approval. They suggested making construction and start-up of the treatment plant a condition precedent to

approval of the landfill proposal, and they asked that local residents be

given an active role in monitoring project compliance. On the issue of

monitoring, they were told that Environment Canada would do periodic inspections (in addition to provincial inspections) (Draft Minutes of

District of Squamish Council Meeting: 4/13/99). There was concern that

the time allowed for public review was too short.

At the meetings, the public was told that CBE had filed suit against

a number of past owners and was seeking compensation from them

through civil action. They were also told that BC Environment had “filed

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 113

281. In response to a question about whether soils would be accepted from outside of

British Columbia, the public was apparently told that “[a] significant amount of the

contaminated soil is being generated through federal government activities, and

thus there is the possibility of ensuring that only this waste will be accepted at the

landfill site” (Draft Minutes of District of Squamish Council Meeting: 4/13/99).

282. Britannia Beach is still a “company town,” not a municipality. Residents of Britannia Beach are tenants of CBE, with CBE providing all utility and other municipal-type services. When CBE bought the Britannia assets from Anaconda, “[s]ome

60 uneconomic, residential and industrial tenancies (many of the premises were of a

dilapidated nature) were taken over by Copper Beach as part of the overall bargain”

(Fodchuk: 1/7/80).

283. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “Federal reviewers considered the possible application of theCanadian Environment Assessment Act to the project, however, concluded that there was no automatic federal CEAA “trigger” (e.g. such as a habitat authorization or federal

funding involved).”
action” to pursue some responsible parties, but that since legal costs

would be extremely high and since CBE had proposed a solution, the

province had put legal action on hold (SLRD Southern Planning Committee Meeting: 4/15/99).

The $10M in private backing CBE had secured for the project was

conditional on the project going forward as quickly as possible. To allow

for work to proceed before winter, and on the basis that the public would

have input into the process going forward, the public was given ten days

to comment on draft permits (Robb: 8/19/99). Regional BC Environment employees told the public that spending time on an environmental

assessment would result in CBE losing its financial backing for the project, but that it might be advisable for the public to contact the provincial

premier’s office to facilitate inter-agency consultations on the public’s

outstanding concerns related to CBE’s proposal (Gimse: 8/30/99).

At the time, Environment Canada and Fisheries and Oceans Canada were represented on a Britannia “Lower Mainland Mine Development Review Committee” (“LMMDRC”) chaired by a regional

representative of BC Mines. At an LMMDRC meeting, Environment

Canada and Fisheries and Oceans Canada expressed concern about the

viability of CBE’s proposal from a financial perspective, but deferred to

the province—and BC Mines in particular—on this issue (LMMDRC

Minutes: 4/25/99; McCandless: 5/19/99). BC Environment stated

“[t]he financial uncertainties of the remediation project are recognized,

however BCMELP [BC Environment] does not have the mandate

nor expertise to determine the financial viability of the project”

(Robb:10/1/99). BC Environment claimed, however, that the WMA permits being prepared in connection with the project contained conditions

to address these uncertainties, such as requiring environmental assessment and engineering studies, posting of financial security (in addition

to that required by BC Mines under the Mines Act), and operation of the

treatment plant prior to operation of the landfill. Furthermore, BC Environment was prepared to add other parties to the remediation order if

CBE defaulted on its obligations.

BC Mines issued a reclamation permit to CBE under s. 10 of the

Mines Act on 30 August 1999. BC Environment issued a remediation

order, effluent permit and waste discharge permit to CBE on 8 September 1999. In its “Reasons for Decision for Issuance of Remediation Order

OE-16097, Effluent Discharge Permit PE-12840, and Refuse Discharge

Permit PR-15938,” BC Environment explained that the new remediation

order replaced the 1981 and 1993 orders, and reflected a revised understanding of the site, changed regulatory criteria and the new powers and

114 FACTUAL RECORD: BC MINING SUBMISSION
guiding principles introduced in Part 4 of the WMA. The remediation

order required CBE, as a responsible person under the WMA, to implement the effluent treatment proposal prepared by CBE, according to a

fixed timetable. PRPs identified by BC Environment in 1998 would not

be added to the order unless CBE failed to comply with the remediation

order and permits.

BC Environment and BC Mines decided that to avoid overlap

between the mining and environmental permits,

MEM [BC Mines] would defer to the MELP [BC Environment] permits

with respect to design and operation of the treatment plant and landfill,

and that the MEM permit would focus on the health, safety and geotechnical aspects of work systems for the various project components, as well

as general reclamation requirements and financial security (LMMDRC:

8/16/99).

The Mines Act permit (BC Mines: 8/31/99) stipulated that it contained

BC Mines requirements for reclamation, but that it was also compatible

with the requirements of other provincial ministries for reclamation

issues, and that the security required by BC Mines for the project

would reflect the requirements of those ministries, without limiting

their authority to set other conditions or to act independently under

their respective permits and legislation. The Mines Act permit stated that

decisions made pursuant to the permit would be made in consultation

with other provincial ministries and federal departments and agencies.

In December 1999, BC Mines issued a proposal to exempt mines

subject to a permit under s. 10 of the Mines Act from Part 4 of the WMA,

citing regulatory duplication and stating that retroactive liability provisions in the WMA were not needed at those mines, because the Chief

Inspector of Mines ensured that the mines would not be sold unless the

buyer was capable of meeting the financial and technical requirements

of reclamation and was able to post adequate security. Under the Mines

Act, upon the sale of a mine site, all of the liability transferred to the

new owner (Hermann: 12/14/99). This proposal became law when the

WMA was amended in 2002 (see below, s. 5.6).

The remediation order and waste discharge permit issued by BC

Environment under the WMA in September 1999 left certain key matters

to be negotiated by CBE and the provincial government. For example,

the permit for the landfill provided that “[p]rior to 31 July 2001, the

permittee shall provide financial security in an amount and form

acceptable to the Regional Waste Manager” (BC Environment/

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 115
PR-15938: 9/8/99). As regards sludge disposal from the treatment plant,

the remediation order stated that

[s]olids, including filter cake or sludge, from the effluent treatment works

shall be re-processed for metal recovery, or alternatively, shall be disposed

of at a site and in a manner acceptable to the Regional Waste Manager (BC

Environment/OE-16097: 9/8/99).

The remediation order required submission of detailed plans for treatment plant construction by March 2000, and operation of the treatment

plant by August 2000. In November 1999, CBE applied for and obtained

an extension for filing its March 2000 report. To honour the August 2000

deadline, CBE proposed to skip certain studies and make up for information gaps on effluent flow by building a bigger treatment plant (Robb:

1/7/00).

By April 2000, CBE had defaulted on several of its obligations

under the WMA order and permits, and consequently the province

revived the PRP submissions process launched in May of 1998 (see

above) to determine whether other PRPs should be added alongside

CBE as parties subject to the remediation order (Robb: 4/6/00). The

province accepted submissions regarding “the technical components of

the current order and the issue of responsibility.” In the following

months, PRPs filed detailed arguments and evidence with the province.

CanZinco claimed that British Columbia was partly responsible

for the pollution at Britannia, notably because provincial employees

removed the submerged outfall after the flood of 1991 (Azevedo:

6/27/00) (see above, s. 5.5.1). BC Environment subsequently notified the

Provincial Crown that it was a PRP (Driedger: 9/7/2000). To deal with

the fact that the province was now both the “Regulator” and a PRP, the

Deputy Director of Waste Management (“Deputy Director”) in Victoria

assumed the role of “Regulator,” while the staff of the Lower Mainland

Regional Office of BC Environment took on the role of the “Province-as-PRP” (Driedger: 9/7/2000).

On 7 September 2000, the Deputy Director notified the private

PRPs that he had decided

to invite Environment Canada to participate in the submissions process in

light of its obvious interest in seeing this significant site remediated and

based on my view that I will be assisted by its participation, if it so chooses

(Driedger: 9/7/2000).

116 FACTUAL RECORD: BC MINING SUBMISSION
PRPs were directed to copy Environment Canada on all further communications. Also on 7 September 2000, the Deputy Director issued a letter

stating that “[w]ritten evidence and/or submissions from [...] Environment Canada will be due no later than 17 November 2000.”

In submissions filed on 18 and 29 September 2000, ARCO claimed

that Canada was a PRP, because during World War II the federal government had a supply contract with the mine whose terms, according to

ARCO, made Canada a de facto “operator” or “owner” of the mine as

defined in the WMA (Driedger: 10/4/2000). The Secretariat did not

obtain copies of these submissions. On 4 October 2000, the Regulator

wrote to the Government of Canada, observing that

[u]ntil recently, the Government of Canada was involved in this process

only by virtue of its regulatory interest in ensuring that the environmental

problem at Britannia is addressed. As such, Environment Canada has

expressed its willingness to participate in the “potentially responsible persons process” by offering its technical comment (Driedger: 10/4/2000).

He then referenced the ARCO submissions and invited the Government

of Canada to provide,

in addition to its technical comments, any submission it has on the issue of

its responsibility raised in Mr. Letcher’s recent correspondence.

On the basis of incoming submissions, the province named additional PRPs. In mid-November 2000, the Province-as-PRP, on behalf of

itself and the Federal Crown, ALCOA, ARCO, CanZinco and Arrowhead/Ivaco, asked the Regulator for more time to file their submissions,

given that they had just scheduled a two-day settlement conference. The

Deputy Director agreed, but emphasized that such negotiations could

not be used to hold up progress on compliance with the remediation

order. The settlement conference resulted in an agreement in principle to

address funding for a treatment plant, subject to approval by the province’s “Risk Management Branch” and the Regulator, and pending

“ongoing negotiations involving Copper Beach and the federal Government” (Driedger: 12/19/2000).

In January 2001, the Regulator acknowledged that he had read a

confidential agreement signed by “all parties” that was conditional

upon “critical conditions that must be satisfied no later than 28 February

2001.” He declined to suspend the submissions process altogether, but

agreed to grant a third extension for filing submissions. He noted that

CBE was not privy to the agreement and that CBE was engaged in

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 117
separate, confidential negotiations with the provincial government, for

which he had been given a status report. The Regulator had also been

“[...] advised of the status of the Province-as-PRP’s ongoing discussions

with the federal government. All of these discussions are at sensitive

points and must of necessity remain confidential” (Driedger: 1/10/

2001).

In October 2000, the Deputy Director had declined to consider

amending the Britannia remediation order in the context of the ongoing

PRP process to include investigating and addressing contamination

beyond the problem of ARD discharging to Howe Sound (Driedger:

10/4/2000) (see s. 5.4, above). In January 2001, the Deputy Director

stated that

[w]hile the present submissions process is focused on resolving the Acid

Rock Drainage into Howe Sound, investigations will in due course have to

be carried out regarding other potential contamination from former mine

operations. Such investigations will likely be required in any order I issue

if they have not already been carried out by that time (Driedger: 1/10/

2001).

Negotiations continued and the PRPs, including the Province and

Canada, repeatedly asked the Regulator for extensions on the due date

for filing submissions, and finally, that he consider suspending the order

process altogether.284

On 26 March 2001, the Province-as-PRP informed the Regulator

that a “revised package” was ready for presentation to the provincial

treasury board and cabinet and that the parties were revising the terms

of their settlement agreement (Falzon: 3/27/01). The Regulator, now

speaking through his legal counsel, stated that in order to agree to suspend the order process, he would require a

[...] letter and rationale consented to by all parties, as well as a meeting

where he is thoroughly briefed on the agreement and on a calendar of specific remediation actions proposed to take place in the absence of an Order.

Upon being informed that a “private-public partnership agreement”

had been reached on 12 April 2001, the Regulator informed the PRPs and

CBE that in addition to final, signed copies of all agreements, he required

118 FACTUAL RECORD: BC MINING SUBMISSION

284. See letters from Ron Driedger, Deputy Director of Waste Management, British

Columbia Ministry of Water, Land and Air Protection to the Government of British

Columbia et al., dated 15 November 2000; 19 December 2000; 10 January 2001; 20

February 2001; 4 April 2001; 25 April 2001.
an outline and schedule of specific remediation actions proposed to take

place in the absence of an order, and a work plan addressing the technical requirements of the pending remediation order as well as additional

requirements listed by the Regulator.

Additional requirements included doing a feasibility assessment

of alternative technologies for effluent treatment and an environmental

impact assessment of the preferred technology, both of which were to

consider all waste discharges to the environment from the effluent treatment plant. The Regulator indicated that in light of the recent discovery

of serious ARD groundwater contamination in an area fanning out from

Britannia Creek, supporting investigations and plant design would

have to consider additional flows resulting from remedial measures recommended for this area, as well as for any other ARD sources identified

during required site-wide investigations, which were to include the bed

of Howe Sound offshore from the site. Upon receipt of this information,

the Regulator would be reviewing the limits and specifications stipulated in CBE’s waste discharge permit (suspended at the time) and

effluent permit. The Regulator then stated his intention to complete

the submissions process and indicated that no submissions would be

accepted after 1 May 2001 (Driedger: 4/25/01).

The Secretariat received a copy of a document entitled “Submissions of the Federal Crown in Response to the ARCO Submission dated

22 March 2001” (Canada: n/d). As noted above, ARCO argued that the

Federal Crown was liable for pollution at Britannia by reason of its

World War II supply agreement with the mine. In addition, ARCO

argued that the Federal Crown is not immune from liability under the

contaminated sites regime of the WMA. The WMA lists persons responsible for remediation, such as current or previous owners or operators of

a site,285 and defines “person” as including “a government body.” “Government body” is defined as “a federal, provincial or municipal body,

including an agency or ministry of the Crown in right of Canada or British Columbia [...].”286

In its reply submission, Canada argued that in order for the Federal

Crown to be liable under provincial legislation, damage must be caused

either by the fault of a servant of the Federal Crown, or by a breach, by

the Federal Crown, of a specific type of tort duty set out in a federal statute on Crown liability.287 Canada argued that the WMA created no such

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 119

285. Section 26.5 of the WMA.

286. Section 26(1) of the WMA.

287. Section 3(b) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50: “The

Crown is liable for the damages for which, if it were a person, it would be liable [...]
“duty,” as it simply imposes liability on persons on the basis of their current or former status in relation to a contaminated site. Canada argued

further that as a matter of longstanding constitutional law, provincial

legislation such as the WMA cannot bind the Federal Crown.

The “public-private partnership” announced in April 2001 was

formalized in a memorandum of agreement (“MOA”) dated 3 April 2001

between the Province-as-PRP and CBE (MOA: 4/3/01), and a settlement

agreement (the “Settlement Agreement”) between the Province-as-PRP

and the private PRPs (but not CBE) dated 12 April 2001 (Settlement

Agreement: 4/12/01).

The BC Minister of Environment, Lands and Parks signed the Settlement Agreement on behalf of the Provincial Crown. The private PRPs

who signed the Settlement Agreement are: ARCO; ARCO Environmental Remediation, L.L.C.; BP America, Inc.; BP Canada Energy Resources

Company (successor to Dome Petroleum Limited); CanZinco; Intalco

Aluminum Corporation; ALCOA Inc.; Alumax Inc.; Howmet Holdings

Corporation; Pechiney Metals Corporation; Pechiney S.A.; and Ivaco

Inc. The Regional Director General of the Pacific and Yukon Region of

Environment Canada signed off on the Settlement Agreement, on behalf

of the Federal Crown, under the caption “Acknowledged without objection.”

Under the Settlement Agreement, the private PRPs paid the Province-as-PRP $30M to be used for remediation at Britannia, and the Province-as-PRP agreed to indemnify and save harmless the private PRPs in

connection with any and all Britannia environmental liabilities, known

and unknown, forever. The Province-as-PRP agreed never to sue the private PRPs for Britannia environmental liabilities, and the private PRPs

agreed never to seek reimbursement of their respective shares of the

$30M settlement amount. According to the then Assistant Deputy Minister of BC Environment who negotiated the Settlement Agreement on

behalf of the Province-as-PRP, the Settlement Agreement was preceded

by a December 2000 letter of intent—of which no copy was included

among the information gathered by the Secretariat—that provided for a

payment of $15M by the private PRPs, subject to the results of environmental investigations to be undertaken by Golder Associates Ltd. and

the federal government at Britannia in the spring of 2001.288 The Secretariat is unaware of the nature and results of any consequent federal

120 FACTUAL RECORD: BC MINING SUBMISSION

in respect of (i) a tort committed by a servant of the Crown, or (ii) a breach of duty

attaching to the ownership, occupation, possession or control of property.

288. 30 August 2002 telephone conversation with Jon O’Riordan, Deputy Minister of the

BC Ministry of Sustainable Resource Management since June 2001.
government environmental investigation. Soil and groundwater investigations conducted by Golder Associates Ltd. on behalf of the Province-as-PRP at Britannia Beach revealed serious contamination.

According to the provincial negotiator, on the basis of these results, the

settlement amount was renegotiated. The amount of $30M was arrived

at as follows: the cost of remediating the site and building and operating

an effluent treatment plant in perpetuity was estimated at $70M, of

which 30% ($21M) was considered to be a contingency amount, to cover

unexpected costs.289 According to the provincial negotiator, the private

PRPs stated that $25M was the maximum amount they were willing, collectively, to contribute voluntarily, and the province was not inclined to

pursue litigation.290 The additional $5M (for a total contribution by the

private PRPs of $30M) accounted for the indemnity granted to the private PRPs under the Settlement Agreement.291

Under the MOA between the Province-as-PRP and CBE, the province agreed to build an effluent treatment plant at Britannia, to be owned

and operated by a “public-private partnership” (“P3”). Treatment plant

construction would be financed through the Canada-B.C. Infrastructure

Fund (as to two-thirds) and from settlement funds obtained from the

private PRPs (as to one-third).

Under the MOA, CBE undertook to sell or obtain the sale of the

land required for the treatment plant to the P3 for $1, and to pay for the

plant’s operating costs in perpetuity. CBE granted the province an

option to purchase properties located north of Britannia Creek for $1 as

partial security for the commitment to pay the plant’s operating costs.

CBE also agreed to contribute $5M up front to a provincial Britannia

remediation fund, with an additional $8.4M to be contributed over time

to cover maintenance and operation of the treatment plant as well as site

remediation.

Under the MOA, fifty percent of the net profit from a 200-unit real

estate development project south of Britannia Creek would be contributed to the remediation fund until the sum of $8.4M was attained.

In addition, all the housing units in that development and another,

1,400-unit development, both of which were to be completed with the

assistance of the province in a 15-year time frame, would be subject to

monthly levies to be paid into the fund. CBE agreed to pay for the cost of

a road to transport sludge from the treatment plant to Jane Basin. It also

agreed that in the event the remediation fund couldn’t cover the operatSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 121

289. Ibid.

290. Ibid.

291. Ibid.
ing and maintenance costs of the treatment plant, the P3 could access

CBE revenue from a proposed five-megawatt hydroelectric project on

Britannia Creek or “other CBE projects.”

Pursuant to the WMA, agreements reached by the Province-asPRP with the private PRPs and CBE did not bind the Regulator. He continued to have the authority, under the WMA, to add any and all PRPs to

the Britannia remediation order, provided that, “to the extent feasible

without jeopardizing remediation requirements,” he took into account

private agreements respecting liability for remediation between or among

responsible persons, if those agreements are known to [him].292

Canada has stated “[i]n 2000, Environment Canada played a significant role in the negotiation of a settlement between the province

and [the private PRPs] for the remediation of the site.”293 The Federal

Crown was not a party to either the Settlement Agreement or the MOA,

although the Regional Director General of the Pacific and Yukon Region

of EC signed off on the Settlement Agreement, with the caption “Acknowledged without objection.” Canada has also stated that Environment Canada provided advice to the province throughout the negotiations with the private PRPs and that concurrent with the announcement of the Settlement Agreement, “all parties” (including the Federal

Crown) endorsed an application to the Federal-Provincial Infrastructure

Fund, on behalf of the Squamish Lillooet Regional District, for $9 million

towards the capital costs of the required treatment plant.294 This would

have resulted in a $3M federal contribution toward the cost of building

the treatment plant. Environment Canada also agreed to provide ongoing technical assistance and to assess sediment contamination in Howe

Sound.295

On 8 May 2002, the Secretariat requested additional information

from Canada regarding Canada’s role in the provincial PRP process at

Britannia (see Appendix 5), and particularly, regarding the basis for

Environment Canada’s agreement to conduct sediment investigations

in Howe Sound. At a meeting with Secretariat staff held in North Vancouver on 11 June 2002, Environment Canada explained that it provided

technical advice to the province during the PRP process. Environment

Canada provided the Secretariat with a copy of the Settlement Agreement and a copy of an undated submission by the Federal Crown to the

122 FACTUAL RECORD: BC MINING SUBMISSION

292. Section 27.1(4)(a) of the WMA.

293. Facts on the Britannia Mine at 5.

294. Ibid., Appendix D at 4.

295. Ibid.
provincial regulator (a copy of an earlier Federal Crown submission,

dated 8 March 2001, referred to in the undated submission was not

included among the information gathered by the Secretariat). The Secretariat obtained no additional information regarding the role of the Federal Crown in the negotiation of the Settlement Agreement. In March

2001, Environment Canada estimated that removing the contaminated

sediments (estimated at 250,000m3) using clamshell dredging would

cost about $8M.296 The preliminary estimate for the cost of disposing of

these sediments on-site, in the Jane Basin (atop Mount Sheer, see s. 5.4,

above), is between $5 and 10 million.297

The MOA between the Province-as-PRP and CBE provided that its

provisions would be embodied in a formal agreement to be prepared by

CBE and negotiated and settled as soon as possible after provincial cabinet approval of the MOA, expected on 12 April 2001. Cabinet referred

the MOA to the provincial treasury board for review.

In May 2001, Alex Tsakumis informed the province that he

intended to acquire the shares of CBE from Tim Drummond (Thayer:

11/16/01). After the sale, Mr. Tsakumis failed to honour verbal undertakings made by him to pay the province $25,000 and water license

arrears for Britannia of $257,821.51, and he never presented the province

with the formal agreement contemplated in the MOA. On 16 November

2001, the Province-as-PRP gave CBE formal notice that it considered that

CBE had repudiated the MOA, that it would not negotiate any further

with CBE, and that it would be “pursuing all available alternate remedies to recover the shortfall in remedial costs to ensure that the taxpayers

of the Province do not bear these costs.”298

British Columbia’s Report on the Economy, Fiscal Situation and

Outlook for the Second Quarter of 2001/02 stated that

[a]ctual Britannia mine site clean-up and remediation expenditures could

be higher than the province’s $45-million estimated share of costs.299

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 123

296. Mike Hagen, Pollution Prevention, Environment Canada, “Britannia Marine Sediment Contamination: Interim Status of Knowledge and Next Options” (2 March

2001) at 9.

297. In its 14 May 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “BC has allocated funds for sediment remediation should any be required.”

298. The copy of the MOA received by the Secretariat is dated 3 April 2001, while the

MOA referenced by the province in its 16 November 2001 letter is dated 28 February

2001. The Secretariat did not receive a copy of the earlier MOA.

299. British Columbia, Second Quarterly Report 2001/02 on the Fiscal Situation and Outlook.

Table A.3 – Main Expenditure Forecast Risks and Sensitivities—Consolidated Revenue Fund, Ministry of Water, Land and Air Protection.
5.6 Whether Canada is Failing to Effectively Enforce s. 36(3) of

the Fisheries Act in the Context of the Britannia Mine

This section provides information gathered by the Secretariat that,

read in conjunction with information contained in ss. 5.3, 5.4 and 5.5,

above, is relevant to a consideration of whether Canada is failing to

effectively enforce s. 36(3) of the Fisheries Act in the context of the Britannia Mine, including whether and how Canada’s approach prevents Fisheries Act violations at the Britannia Mine in the long term.

5.6.1 Current Status

In December 2001, consultants working for CBE plugged the

2200-level portal (see Figure 3 in s. 5.4, above).300 This stopped the

discharge of ARD to Jane and Britannia Creeks and brought CBE into

compliance with one of the requirements of BC Environment’s 1999

remediation order (see s. 5.5.3, above). It also ended alleged s. 36(3) violations as regards discharges of effluent to Jane and Britannia Creeks.

The plug has the effect of re-routing effluent inside the mine to the

4100-level portal, where it is piped underground to the submerged outfall in Howe Sound. At the time of writing this factual record, in October

2002, the submerged outfall at Britannia continues to discharge large

volumes301 of untreated mine effluent that is acutely lethal to fish into

the fish-bearing waters of Howe Sound every day.

The court-appointed receiver-manager (see above, s. 5.5.2) was

discharged from its duties at Britannia on 31 July 2001,302 returning management and control of the site to CBE, which remains insolvent. In the

fall of 2002, 40091 sold its mortgage interest in the property to another

real estate developer, who, like 40091 before it, has the option of foreclosing at any time.303 The Pacific and Yukon Region of Environment

Canada has no enforcement file regarding Britannia and has not had

one since at least 1999, but it has maintained many compliance promotion files regarding the site.304 An application by the Fraser Basin

Council (endorsed by Environment Canada) to the Canada-B.C. Infrastructure Program for a $6M grant ($3M in federal funds) to construct a

124 FACTUAL RECORD: BC MINING SUBMISSION

300. Letter dated 27 January 2002 from Ron Driedger, Deputy Director of Waste Management, British Columbia Ministry of Water, Land and Air Protection, to Copper

Beach Estates Ltd. et al., Re: Britannia Mine Remediation—Completion of 2200

Level Plug.

301. See s. 5.4, above, for information on effluent flow.

302. Telephone conversation with Jim Titerle, Partner, McCarthy Tétrault and Counsel

to 40091, 9 October 2002.

303. Ibid.

304. Telephone conversation with Ken Wile, Head, Inspections, Environment Canada,

Pacific and Yukon Region, 29 July 2002.
plant to treat effluent from the 4100-level portal (see s. 5.5.3, above) and

thereby achieve compliance with s. 36(3) at the Britannia Mine has still

not been approved.305

A chart showing the current status of remediation funding is provided below.

Remediation Funding Chart

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 125

Funding under April 2001 Agreements Situation in

October 2002

Contributor Source of

Obligation

Cash In kind

contribution

Private

PRPs

Settlement

Agreement

$30M

($3M to build

treatment plant;

$22M site

remediation; $5M

cost of indemnity)

$30M received from

private PRPs

CBE MOA $13.4M + monthly

levies on real estate

development

Property for treatment plant; building

road to Jane Basin

for sludge disposal

CBE has repudiated

MOA

Provinceas-PRPSettlement

Agreement

Any shortfall in

available funds

Carry out detailed

site investigations;

remediate site; build

effluent treatment

plant

Province has made

a reserve of $45M

from the

consolidated

revenue fund

for Britannia

Remediation;

expects more costs

Provinceas-PRPMOA $3M under

Canada-BC

Infrastructure

Program to build

treatment plant

Canada-BC

Infrastructure

Program has not

ruled on application

for funding to build

treatment plant

EC (or

Federal

Crown)

Agreed to conduct sediment investigations in intertidal zone at Britannia Beach,

continue to provide technical assistance in reviewing proposed remediation works,

and endorse an application for $3M in federal funding under the Canada-BC Infrastructure Program to build an effluent treatment plant

The Secretariat received little information regarding the expected cost of implementing the BMRP,

or the exact scope of work covered by any cost projections it did obtain. It appears that in April 2001,

the cost of the BMRP was estimated at roughly $50M (+ $20M contingency). In August 2002, the

Secretariat’s consultant, Grant Feasby, estimated the total cost of the BMRP at $73M, on the basis

of communications with various sources involved in the BMRP.

305. The Squamish Lillooet Regional District refused to file the application because

funding for Britannia could significantly reduce funds available for other projects
5.6.2 Whether Current Initiatives Will Stop the Deposit of Deleterious

Substances at the Britannia Mine in the Shortest Possible Time

and in the Long Term

Under a “Britannia Mine Remediation Project” (“BMRP”) Action

Plan and Work Plan issued in the fall of 2001 by consultants working for

the Province-as-PRP, with input from many stakeholders, including

Environment Canada and Fisheries and Oceans Canada (see s. 5.5.3,

above), an effluent treatment plant is expected to be in operation at Britannia sometime between the spring and summer of 2004.306The effluent

treatment plant would use high-density sludge (“HDS”) technology to

treat the effluent from the 4100-level portal (see Figure 3 in s. 5.4, above)

before it discharges to Howe Sound from the submerged outfall. In 1998,

consultants working for Environment Canada identified HDS technology as being the most suitable to treat Britannia effluent. HDS technology is considered to be “best available technology” for the purposes of

the MMER (see above, s. 5.2.2) and therefore capable, in principle, of

126 FACTUAL RECORD: BC MINING SUBMISSION

in the area (telephone conversation with Pam Tattersfield, Squamish Lillooet

Regional District, 31 July 2002). As a result, the Fraser Basin Council filed the application. It is not clear whether the Fraser Basin Council is an entity eligible to file this

type of application (it must be filed by “local government”), and whether the project

itself is one that is eligible for funding by the Canada-B.C. Infrastructure Program.

Program priorities are identified as follows: “Infrastructure Canada’s first priority

is green municipal infrastructure. The Infrastructure Canada-British Columbia

agreement specifies a minimum 75 percent of the total value of all approved projects must be invested in green municipal infrastructure. Secondary priorities for

the Infrastructure Canada-British Columbia program include cultural and recreational facilities, infrastructure supporting tourism, rural and remote telecommunications, high-speed Internet access for local public institutions, local

transportation and affordable housing.” See the Infrastructure Canada web site,

online: <http://www.tbs-sct.gc.ca/ino-bni/Main/partners/bc_ip_e.asp> (date

accessed: 20 October 2002).

306. See British Columbia Ministry of Water, Land and Air Protection, Britannia Mine

Remediation Project Homepage <http://wlapwww.gov.bc.ca/sry/p2/britannia/index.htm> (last updated: 11 December 2001). This web site contains copies of

all official correspondence between the Regulator, CBE, and the private and public

PRPs, as well as copies of technical reports, status reports and newsletters issued by

the BMRP project manager, Golder Associates Ltd. On 13 May 2002, the Regulator

advised CBE and the Province-as-PRP that the BMRP Work Plan Master Schedule

only extended as far as the completion of a feasibility report for a treatment plant

and that, according to the informal Action Plan, treatment plant operation was

expected to begin in December 2004, a year later than initially estimated. He asked

that every effort be made to move forward the projected plant start-up date. The

Project Manager subsequently revised the Project Schedule, and start-up is now

expected to occur between April and June 2004 (letter dated 10 May 2002 from

Gerry O’Hara, Golder Associates Ltd. to Eric Partridge, Director of Waste Management, British Columbia Ministry of Water, Land and Air Protection, Re: Britannia

Mine Remediation Project: Submission of Revised Project Schedule).
rendering Britannia effluent compliant with MMER standards, provided the plant has sufficient capacity to treat all of the effluent from the

Britannia Mine all of the time, regardless of seasonal fluctuations in

effluent flow.307 At Britannia, compliance with MMER standards—

especially the requirement that the effluent be non-acutely lethal to

fish—would be considered by Environment Canada to signify one measure of compliance with the s. 36(3) general prohibition on depositing

deleterious substances into waters frequented by fish.

The Secretariat retained the services of Grant Feasby, an expert on

ARD treatment, to conduct a preliminary analysis of the likely effectiveness of the BMRP in stopping the deposit of deleterious substances at the

Britannia Mine in the shortest possible time and in the long term, consistent with the Fisheries Act Compliance and Enforcement Policy.308 In

1994, Mr. Feasby co-authored a report for Natural Resources Canada

estimating the cost of reclamation liability associated with ARD in Canada as ranging from $2-5B, depending on the sophistication of treatment

and control technology being put in place (Feasby and Jones: 03/00/94).

Subsequently, Mr. Feasby headed Natural Resources Canada’s Mine

Environment Neutral Drainage (“MEND”) Program. Mr. Feasby has

frequently served as an expert advisor at mine sites around the world

where major ARD-related environmental accidents have occurred.

Mr. Feasby reviewed work being done by various engineering consultants, in consultation with the provincial and federal governments,

under eighteen “work packages” included in the BMRP. Each work

package centers on studying and solving one aspect of the pollution

problem at the Britannia site, including many facets of water flow management on the site. In his report to the Secretariat,309 Mr. Feasby stated:

“All aspects that need to be investigated at the Britannia Mine site have

been or are being investigated. The BMRP is comprehensive. Progress to

date has been close to being on target.” Mr. Feasby stated that effluent

treatment is the only practicable option at Britannia, since there is no

way of stopping the flow of effluent from the mine, and that the HDS

process chosen for this purpose is the best choice under the circumstances.310 He observed, however, that

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 127

307. Feasby, infra, note 310 at 3.5 “Analysis of Chosen Effluent Treatment Technology.”

308. This is the test established by the Compliance and Enforcement Policy for determining the appropriate response to a violation of the Fisheries Act. Here, Canada’s

response was to provide technical support the Province-as-PRP under the BMRP.

309. See infra, note 310 at 4.0.

310. D. Grant Feasby, “Review of the Effectiveness of Current B.C. Government Initiatives in Achieving Compliance with s. 36(3) of the Fisheries Act (Canada) at the
[t]wo years is a long time to have a plant built that is off-the-shelf technology. Given the pressing need to treat the effluent and the information base

that has been accumulated, faster implementation is possible. A mining

company could have a water treatment plant constructed and commissioned within 12-14 months.311

Several outstanding issues are holding up the province’s tendering

bids for treatment plant construction. CBE’s repudiation of the MOA

(see above, s. 5.5.3) has left the Province-as-PRP with the task of identifying a suitable location for the treatment plant and negotiating access or

other rights with the landowner.312 Also unresolved is the issue of who

will own and operate the treatment plant, and under what terms. Ownership and operation of the treatment plant will result in potential liability for violations of s. 36(3).

Certain pending decisions also have the potential to affect treatment plant design.313 First is the matter of sludge disposal. Effluent treatment will result in daily production of vast amounts of sludge consisting

of the residue of lime used for treatment and metals that will have been

removed from the effluent. The characteristics of this sludge will be variable, depending on levels of acidity and metals in the effluent, both

of which fluctuate during the year at Britannia. Sludge characteristics—both chemical and physical—affect sludge disposal options. The

dryer the sludge, the easier it will be to ship offsite, or up to the Jane

Basin for landfilling. To dry the sludge, a filter press may need to be

incorporated into treatment plant design. Chemical characteristics will

determine whether the sludge can be disposed of in commercial landfills. Both physical and chemical characteristics will determine whether

disposing of the sludge in the Jane Basin risks contributing to the effluent

problem at the mine. Operation of the treatment plant requires a guaranteed sludge disposal method. The cost of sludge disposal will be significant.

The other issue is groundwater and surface water contamination.

Significant groundwater contamination exists in the Britannia Beach

area, resulting in part from historical use of tailings for landfilling and

from the presence of waste rock piles that were never removed from the

128 FACTUAL RECORD: BC MINING SUBMISSION

Britannia Mine, British Columbia,” 29 October 2002, at 2.3 “Challenges to Preventing and Treating ARD at Britannia” and 3.5 “Analysis of Chosen Effluent Treatment Technology.”

311. Ibid. at 3.7 “Timing and Constraints for Commissioning of Water Treatment Plant”.

312. One potential location is on CBE land; ibid., at 3.3 “Comments on Information being

Developed under the BMRP – H. Water Treatment Plant.”

313. Ibid. at 3.3 “Comments on Information being Developed under the BMRP – J. Sludge

Management.”
site. Surface water is also contaminated from coming into contact with

exposed ore. It has not yet been decided whether these sources of water

contamination will be removed from the site (at very considerable

expense) or whether a groundwater and surface water collection system

will be put in place to channel contaminated water to the treatment plant

on a permanent basis.314 Decisions on this issue could affect the overall

budget for the BMRP.

Having considered the issue of timing of treatment plant construction, Mr. Feasby assessed the likeliness of the proposed treatment plant

to prevent future deposits of deleterious substances into Howe Sound

from the Britannia Mine. In his report, Mr. Feasby explained that HDS

technology performs best when ARD iron and acidity levels in effluent

are high, and that at Britannia, both iron and acidity levels are uncharacteristically low, which has the potential to affect plant performance.315

He also stated that variable effluent characteristics at Britannia resulting

from seasonal fluctuations in water flows through the mine will require

close operational control to avoid potential deposits of deleterious substances.316

On the basis of information received from the Secretariat regarding

funds available for the BMRP, Mr. Feasby analyzed whether available

funds are likely to be sufficient to cover construction and operation of a

treatment plant at Britannia in perpetuity, to avoid future deposits of

deleterious substances. Mr. Feasby stated that assuming that funds

available and budgeted for remediation at Britannia total $75M ($30M

from the private PRPs and $45M from the Province of British Columbia

(see above, s. 5.5.3)), and assuming the province has made adequate provision for sludge disposal, and soil and groundwater remediation under

the BMRP, the amount available to fund treatment plant construction

and operation on a permanent basis is only marginally sufficient. Mr.

Feasby’s calculations, based on information about proposed BMRP

expenditures he obtained from persons involved with the BMRP, are

set out below.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 129

314. Ibid. at 3.3 “Comments on Information being Developed under the BMRP – K. Contaminated Sites.”

315. Ibid. at 2.3.2 “Treatment Challenges Associated with ARD Chemistry at Britannia.”

316. Ibid. at 4.0 “Conclusion.”
Estimated Cost of Implementing BMRP and

Operating Treatment Plant in Perpetuity

The following are cost estimates317 for the BMRP and the perpetual

operation of a WTP:

$ Millions

Treatment Plant 12

Studies 3

Decontaminate site 6

Additional studies 2

Total 23

Operating cost318: $0.55/m3, @ 500 m3/h $2.4 million/year

Net Present Value319 @ 5% for 100 years $50 million

Total cost $73 million

There is considerable sensitivity to the above costs presented by two factors—the cost per cubic metre (treatment cost based on each cubic metre of

effluent treated) and the real rate of return on investments. If the unit costs

rise by $0.20/m3 (for example, poorer process control and high overhead

costs) then total costs rise to $91 million. If the real rate of return is 3%,

instead of 5%, then the total costs will rise to $130 million.320 This illustrates the importance of having an efficient plant and efficient operators.

These costs also show that there is less sensitivity to initial capital expenditure. The Province could spend more on the plant initially and possibly

reduce unit costs marginally and save money overall.321

Recent amendments to the WMA (see above, s. 5.3.3) have likely

made it impossible for the provincial Regulator to issue a remediation

order or recover remediation costs against the private PRPs in connec130 FACTUAL RECORD: BC MINING SUBMISSION

317. Estimates from personal communications of Grant Feasby with various sources

involved in the BMRP.

318. Report of Technologies Applicable to the Management of Canadian Mining Effluents, SENES Consultants and Lakefield Research, March 1999.

319. Net Present Value (NPV) is the amount of money that needs to be in place today for

funding a project that has annual costs. For indefinite funding, simply divide the

annual cost by the interest rate, in this case 2.4/0.05 = $48 Million. For shorter number of years, use the formula below:

NPV = annual cost (1 + i)exp(n-1)/1 + i)exp n (where n = number of years).

320. If, for example, a $1 million addition to the plant of automation reduced the cost per

cubic meter by $0.05, the real rate of return on money invested is 5%, and 500 cubic

meters per hour are treated, then the annual cost savings would be 500 x 24 x 365

x $0.05 = $220,000. This has a net present value of $220,000/0.05 = $4.4 million if the

cost is incurred annually and indefinitely. The net saving would be $3.4 million.

321. Ibid. at 13-14.
tion with pollution at Britannia, because of the indemnity included in

the Settlement Agreement (see s. 5.5.3, above).322 The relevant statutory

provision states “[...] a previous owner or operator of a producing or

past producing mine site is not responsible for remediation at the site if

the owner or operator [...] (b) obtains indemnification under the Financial Administration Act.”323 Under the Settlement Agreement, the private

PRPs obtained indemnification under the Financial Administration Act.324

The practical consequence of these amendments, as regards Britannia, is

that the provincial Regulator cannot require the private PRPs to make up

for any eventual shortfall in funds available to address pollution issues

at Britannia, including the cost of effluent treatment in perpetuity. These

amendments also have the effect of removing from the purview of Part 4

of the WMA all closed mines, such as Britannia, at which a reclamation

permit has been issued under s. 10 of the Mines Act. The Mines Act does

not contain retroactive liability provisions.

At the time of writing, in October 2002, BC Environment has

announced a full-scale review of the WMA, including Part 4, in part to

further reduce duplication of effort between BC Mines and BC Environment.325 In the context of this review, a provincial advisory panel on contaminated sites has urged that

[t]he province’s relationship with the Federal Government, particularly

with Environment Canada and Fisheries and Oceans Canada, needs to be

redefined. Presently, the relationship is poorly delineated and the role of

each party is neither unique nor are the boundaries of responsibility

and accountability clear. To rectify this problem, discussions must begin

immediately at the Assistant Deputy Minister and Director-General level

to clarify the roles and responsibilities of each agency relating to contaminated sites. Specifically, agreement should be sought for a clear Provincial

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION... 131

322. See Waste Management Act Amendment Act, 2002, S.B.C. 2002, c. 34 and British

Columbia Ministry of Water, Land and Air Protection, “Contaminated Sites Provisions of the Waste Management Act Amended, 10 May 2002;” online: <http://

wlapwww.gov.bc.ca/epd/epdpa/contam_sites/updates/WMAA2002.pdf>

(date accessed: 10 October 2002).

323. Ibid. at s. 7 (see 28.92(2) of the amended WMA).

324. S. 6.1(b) of the Settlement Agreement: “The Minister of Finance and Corporate Relations has, on behalf of the Province, given prior written approval to the giving of the

indemnity in this Agreement pursuant to the Guarantees and Indemnities Regulation

(B.C. Reg. 258/87), as amended, enacted pursuant to the Financial Administration

Act (B.C.).”

325. See British Columbia. Advisory Panel on Contaminated Sites, Interim Report, 3 September 2002, at 5.8: “In addition, a resolution must be found to address the unnecessary duplication and lack of consistency between the closure and reclamation

requirements under the Mines Act and Safety, Health and Reclamation Code for Mines

in British Columbia and the contaminated sites requirements under the WMA and

CSR that were not resolved by 9 May 2002 amendments.”
lead in administering and managing contaminated sites in British Columbia with federal involvement only as requested or necessary.326

The panel has also recommended that “[i]n accordance with CCME

guidelines and the 1 July 2002 Federal Contaminated Sites Management

Policy, more analysis is required on cost and benefits during the process

for selecting an appropriate remedial action.”327

In late November 2002, the National Orphaned/Abandoned

Mines Advisory Committee (see s. 5.3.4.2, above) created a Funding

Models Task Group to develop recommendations on models for funding remediation of orphaned/abandoned mines in Canada that will be

presented to the federal/provincial/territorial Mines Ministers for consideration at their September 2003 annual meeting.328

6. Closing Note

Factual records provide information regarding asserted failures to

effectively enforce environmental law in North America that may assist

submitters, the NAAEC Parties and other interested members of the

public in taking any action they deem appropriate in regard to the matters addressed. Pursuant to Council Resolution 01-11, which determined

its scope, this factual record provides information relevant to a consideration of whether Canada is failing to effectively enforce s. 36(3) of the

Fisheries Act at the Britannia Mine in British Columbia, Canada. The

Britannia Mine operated from 1904 to 1974. Since mine closure, metalladen, acidic effluent that is acutely lethal to fish has discharged from the

abandoned mine workings into the fish-bearing waters of Howe Sound.

Copper Beach Estates Ltd. (“CBE”) purchased the property for real

estate development in 1979 and is now insolvent. Environment Canada

has taken no enforcement action at Britannia, and it has not had an

enforcement file on Britannia since at least 1999, although it has maintained many compliance promotion files in regard to the site.

Federal Department of Justice policy allows prosecutors to consider whether the regulatory authority has a compliance program that

might better serve the public interest than prosecution. A federal/

provincial program for the remediation of orphaned/abandoned contaminated sites ended in 1995. Since then, regional employees of Envi132 FACTUAL RECORD: BC MINING SUBMISSION

326. Ibid. at 5.10.

327. Ibid. at 5.11.

328. Canadian Environmental Network Weekly E-Bulletin, 29 November 2002,

“Funding Models Task Group, National Orphaned/Abandoned Mines Advisory

Committee.”
ronment Canada and Fisheries and Oceans Canada have cooperated

with regional employees of BC Environment on an ad hoc basis in seeking funding to study and solve the Britannia effluent problem.

The Fisheries Act Compliance and Enforcement Policy states that in

responding to an alleged violation, an appropriate action is one that

achieves “compliance in the shortest possible time and with no further occurrence of violations,” and may include supporting provincial

enforcement action. Since 1997, Environment Canada has provided

technical assistance to BC Environment in its enforcement of the BC

Waste Management Act against CBE and past owners of the mine. In 2001,

the province settled with past owners for $30M. Environment Canada

agreed to conduct a sediment investigation in Howe Sound and provide

technical support for a provincial remediation plan. Under an agreement with CBE that CBE subsequently repudiated, the province committed to pay for the construction of an effluent treatment plant and CBE

committed to provide $14M+ to operate the plant in perpetuity. Under

the current provincial clean-up program, expected to cost the province

at least $45M, start-up of an effluent treatment plant is scheduled for

June 2004. An expert engaged by the Secretariat has stated that a plant

could likely be in operation sooner, and that once in operation, close controls will be required to prevent s. 36(3) violations and ensure that the

current $75M budget can support plant operation in the long term.

CLOSING NOTE 133

APPENDIX 1

Council Resolution 01-11,

dated 16 November 2001

Montreal, November 16, 2001

COUNCIL RESOLUTION 01-11

Instruction to the Secretariat of the Commission for Environmental

Cooperation Regarding the Assertion that Canada is Failing to Effectively Enforce section 36(3) of the Fisheries Act (SEM-98-004).

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

MINDFUL that Article 14(3) of the NAAEC states that where a Party has

advised the Secretariat within 60 days of delivery to the Party of a

request for a response from the Party, that a matter is the subject of a

pending judicial or administrative proceeding, the Secretariat shall

proceed no further;

CONSIDERING the submission filed on the above-mentioned matter by

the Sierra Club of British Columbia, Environmental Mining Council of

British Columbia and Taku Wilderness Association, the Secretariat’s

request of June 25, 1999 to the Government of Canada for a response, and

the response provided by the Government of Canada on September 8,

1999;

NOTING that it would be inappropriate with respect to the submission

to direct the preparation of a factual record on matters in the submission

that are subject to pending judicial or administrative proceedings;

HAVING REVIEWED the notification by the Secretariat of May 11, 2001

that the development of a factual record is warranted in relation to the

submission (SEM-98-004); and

HAVING BEEN INFORMED by Canada that at this time there are no

pending judicial or administrative proceedings regarding the Britannia

Mine and that proceedings relating to the Tulsequah Chief and Mt.

Washington Mines are still pending;

APPENDIX 1 137
HEREBY UNANIMOUSLY DECIDES:

TO INSTRUCT the Secretariat to prepare a factual record in accordance

with Article 15 of the NAAEC and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the North American

Agreement on Environmental Cooperation for the assertion that Canada is

failing to effectively enforce section 36(3) of the Fisheries Act with respect

to the Britannia Mine;

TO DIRECT the Secretariat to provide the Parties with its overall work

plan for gathering the relevant facts and to provide the Parties with the

opportunity to comment on that plan;

TO DIRECT the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on January 1, 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to January 1, 1994, may be included in the factual

record; and

TO TERMINATE this submission process with respect to the assertions

concerning the Tulsequah Chief and Mt. Washington Mines.

APPROVED BY THE COUNCIL

138 FACTUAL RECORD: BC MINING SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record,

dated 14 December 2001

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission ID: SEM-98-004

Submitter(s): Sierra Club of British Columbia

Environmental Mining Council of British Columbia

Taku Wilderness Association

Represented by: Sierra Legal Defence Fund

Party: Canada

Date of this plan: 14 December 2001

Background

On 29 June 1998, the Submitters identified above presented to the

Secretariat of the Commission for Environmental Cooperation (CEC) a

submission in accordance with Article 14 of the North American Agreement on Environmental Cooperation (NAAEC). The Submitters assert “the

systemic failure of the Government of Canada to enforce section 36(3) of

the Fisheries Act to protect fish and fish habitat from the destructive environmental impacts of the mining industry in British Columbia (B.C.).1”

The Submitters allege that Canada fails to initiate prosecutions even

though it is aware of ongoing violations of section 36(3) resulting from

acid mine drainage. The Submitters refer to the Tulsequah Chief, Britannia and Mount Washington mines as examples.

On 16 November 2001, the Council decided unanimously to

instruct the Secretariat to develop a factual record, in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the NAAEC (Guidelines), “for the

assertion that Canada is failing to effectively enforce section 36(3) of the

Fisheries Act with respect to the Britannia Mine.” The Council directed

the Secretariat, in developing the factual record, to consider whether the

Party concerned “is failing to effectively enforce its environmental law”

since the entry into force of the NAAEC on 1 January 1994. In considering such an alleged failure to effectively enforce, relevant facts that

existed prior to 1 January 1994, may be included in the factual record.

APPENDIX 2 141

1. Submission, at 5.
Under Article 15(4) of the NAAEC, in developing a factual record

“...the Secretariat shall consider any information furnished by a Party

and may consider any relevant technical, scientific or other information:

(a) that is publicly available; (b) submitted by interested non-governmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent

experts.”

Overall Scope of the Fact Finding:

The Submitters allege the systemic failure of the Government of

Canada to enforce section 36(3) of the Fisheries Act to protect fish and fish

habitat from the destructive environmental impacts of the mining industry in B.C. Section 36(3) prohibits the deposit of a deleterious substance

in water frequented by fish. Section 40(2) of the Fisheries Act makes violation of section 36(3) an offence punishable by a range of fines and/or

imprisonment. The Submitters allege that there have been no prosecutions of mining companies in B.C. for violations of section 36(3) for at

least ten years, despite documented ongoing violations resulting from

acid mine drainage. They attribute Canada’s alleged failure to effectively enforce section 36(3) in part to a severe shortage of staff and

resources. They also contend that Canada has devolved responsibility

for enforcing environmental laws to the provinces, and that this has

resulted in deterioration of transparency and accountability. They cite

the failure to enforce section 36(3) of the Fisheries Act as having contributed to the decline of salmon runs in B.C. They contend that the fact that

the Tulsequah Chief, Britannia and Mount Washington mines have been

allowed to continue polluting fish habitat for decades is prima facie evidence that enforcement mechanisms other than prosecution have failed.

The Submitters cite the Britannia Mine as an example. It operated

from 1905 to 1974. According to the Submitters, although the mine is

now abandoned, acid mine drainage and heavy metals continue to drain

from the mine into Britannia Creek and Howe Sound in staggering

quantities. They allege that Britannia Creek, once productive of salmon

habitat, is now virtually devoid of life and that there is a marked absence

of marine life in Howe Sound in the areas where Britannia Creek and an

outfall pipe from the mine flow into the marine waters of the Sound.

They also allege that elevated heavy metals levels have been found in

crabs, mussels, oysters and shrimp up to 18 km away, along with significantly reduced numbers of these species. The Submitters allege that no

Fisheries Act charges have ever been laid against the owners or operators

of the Britannia Mine.

142 FACTUAL RECORD: BC MINING SUBMISSION
In its response, Canada describes its general approach to enforcing

and assuring compliance with section 36(3) at acid-generating mines in

B.C. and claims that this approach is effective both generally and in the

specific case of Britannia. With respect to Britannia, Canada asserts that

it has worked together with the B.C. government to study the acid mine

drainage problem and that these efforts have resulted in a proposal to

build an effluent treatment plant and landfill at the mine which are

expected to reduce the concentration of metals in the mine effluent and

render it non-acutely lethal to fish.

To prepare the factual record, the Secretariat will gather and

develop information relevant to the facts concerning:

(i) alleged violations of section 36(3) of the Fisheries Act in connection

with the Britannia Mine;

(ii) Canada’s enforcement of section 36(3) of the Fisheries Act in connection with the Britannia Mine; and

(iii) whether Canada is failing to effectively enforce section 36(3) of the

Fisheries Act in the context of the Britannia Mine.

Overall Plan:

Consistent with Council Resolution 01-11, execution of the overall

work plan will begin no sooner than 14 January 2002. All other dates are

best estimates. The overall plan is as follows:

• Through public notices or direct requests for information, the Secretariat will invite the Submitters; JPAC; community members; the regulated community; and local, provincial and federal government

officials to submit information relevant to the scope of fact finding

outlined above. The Secretariat will explain the scope of the fact finding, providing sufficient information to enable interested non-governmental organizations or persons or the JPAC to provide relevant

information to the Secretariat (section 15.2 of the Guidelines). [January

2002]

• The Secretariat will request information relevant to the factual record

from federal, provincial and local government authorities of Canada,

as appropriate, and will consider any information furnished by a

APPENDIX 2 143
Party (Articles 15(4) and 21(1)(a) of the NAAEC). [January 2002]

Information will be requested relevant to the facts regarding:

(i) alleged violations of section 36(3) of the Fisheries Actin connection

with the Britannia Mine;

(ii) Canada’s enforcement of section 36(3) of the Fisheries Act in connection with the Britannia Mine; and

(iii) whether Canada is failing to effectively enforce section 36(3) of

the Fisheries Act in the context of the Britannia Mine.

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [January through April 2002]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [January through June 2002]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested non-governmental organizations or persons, the

JPAC or independent experts. [January through June 2002]

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed.

[June through September 2002]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5). [end of September

2002]

• As provided by Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council. [November 2002]

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

144 FACTUAL RECORD: BC MINING SUBMISSION
Additional information

The submission, the Party’s response, the Secretariat determinations, the Council Resolution, and a summary of these are available

in the Registry on Citizen Submissions in the CEC home page

www.cec.org or upon request to the Secretariat at the following address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393 St. Jacques St. West

Suite 200

Montreal QC H2Y 1N9

Canada

APPENDIX 2 145

APPENDIX 3

Comments of Canada and the United States

on the Overall Plan to Develop a Factual Record,

dated 14 and 23 January 2002

Comments of Canada

on the Overall Plan to Develop a Factual Record

with regard to submission SEM-98-004

Environment Canada

Ottawa ON K1A 0H3

January 14, 2002

Ms. Janine Ferretti

Executive Director

Secretariat

Commission for Environmental Cooperation

393 St. Jacques Street West, Suite 200

Montreal QC H2Y 1N9

Dear Ms. Ferretti:

Canada is pleased to offer its comments on the five work plans to

develop factual records which were provided to the Parties on December 14, 2001.

First, we note that – unlike the work plans the Secretariat provided

for the “B.C. Hydro” and “Metales y Derivados” factual records – these

five are quite general, and that the Secretariat has chosen not to include

specific information on the methods that will be used to gather the facts,

or any criteria to determine the relevancy of those facts. As a result, Canada is limited in its ability to provide comments that may be helpful to

the Secretariat in ensuring the timely and efficient development of factual records. Should the Secretariat provide the Parties with a more

detailed account of what it intends to do to develop the factual records,

Canada would be pleased to offer comments which would facilitate the

fact gathering process.

In regard to the scope of the fact finding defined in each of the five

work plans, it is Canada’s understanding that this scope is limited to the

instructions provided by Council with respect to the specific cases identified in Council Resolutions 01-08,01-09, 01-10, 01-11, and 01-12. As it is

made clear in the scope of the fact finding for the Aquanova Factual

Record, Canada understands that the facts in the other four factual

records will also be gathered strictly with respect to the cases identified

in the council resolutions, and not in any other factual context.

APPENDIX 3 149
With respect to the scope of the fact finding and the overall plan for

the Oldman River Factual Record, Canada notices that references are

made to the “Sunpine Project”. To avoid any misunderstanding, Canada

recommends that all references regarding this case be made to the

“Sunpine Forest Products Forest Access Road case” referred to in Council Resolution 01-08 and in the background section of the work plan for

the Oldman River Factual Record.

With regard to the scope of the fact finding and the overall plan for

the B.C. Logging Factual Record, Canada notices that references are

made to sections “35 and 36” of the Fisheries Act. Canada believes that

this is inaccurate and that these references should be changed to sections

“35(1) and 36(3)” of the Fisheries Act as is identified in Council Resolution

01-12.

Canada is pleased to submit the above comments for consideration

by the Secretariat and offers its full assistance in providing any other relevant information which may facilitate the fact gathering process. We

note in this regard that, in order to ensure full access to the appropriate

Canadian governmental authorities (federal, provincial, and local) and

expedite the compilation of facts, it would be preferable that all information requests made to the Canadian Party regarding the Oldman River,

BC Mines, and BC Logging factual records be addressed to the following

contact:

Ms. Jenna MacKay-Alie

Director

Americas Branch

Policy and Communications

Environment Canada

10 Wellington Street, 23rd Floor

Hull, Québec

K1A 0H3

We will follow up with the Director of the Submission on Enforcement Matters Unit to determine if this offer is helpful in expediting the

process.

Yours sincerely,

Assistant Deputy Minister

Policy and Communications

c.c.: SEMARNAT

US EPA

150 FACTUAL RECORD: BC MINING SUBMISSION
U.S. Comments on the Overall plan to develop a

factual record on SEM-99-002 submitted by the

CEC Secretariat on December 14, 2001

1/23/02

Background Section

First paragraph, second sentence: The Secretariat’s characterization of the requirements of Section 703 of the Migratory Bird Treaty Act

with respect to “taking” is inaccurate. The U.S. proposes that this sentence be revised to read as follows:

“...which prohibits the killing or ‘taking’ of migratory birds and their nests

or eggs, against loggers, logging companies, and logging contractors.”

First paragraph, third sentence: We ask that the Secretariat revise

this sentence to include language directly from the Submission (as

opposed to re-characterizing statements in the Submission and then

citing four pages and an appendix). We propose reworking the sentence

to read as follows:

“The Submitters claim that logging operations consistently result in violations of the Act which have ‘significant consequences, because logging

directly kills or takes migratory birds by destroying nests, crushing eggs,

and killing nestlings and fledglings.’”

First paragraph, fourth sentence: Please revise this sentence as follows:

“The Submitters assert that despite being aware of these alleged violations....”

Overall Scope of the Fact Finding Section

While the Submitters’ allegations are described in some detail,

almost no information is provided regarding the U.S. government

response. To maintain balance, the Secretariat should provide additional information describing the main elements of the U.S. government

response to the MBTA submission.

APPENDIX 3 151
For consistency, please revise bullet (i) to read as follows: “the

alleged violations of section 703 of the MBTA in connection with the

two cases that are referenced in Council Resolution 01-10”.

Bullet (iii) is unnecessary. Bullet (ii) is general in nature and effectively covers the substance addressed in bullet (iii), therefore, the third

bullet should be removed.

Overall Plan Section

In order to facilitate the fact finding as well as internal U.S. coordination efforts, it is requested that all communications between the Secretariat and U.S. federal government officials, as outlined under the first

and second bullets, be in writing and go through the following primary

points of contact, with an electronic copy to the U.S. Environmental

Protection Agency/Office of International Activities

(frigerio.lorry@epa.gov):

U.S. Department of Interior/ Fish and Wildlife Service

Kevin Adams

Assistant Director, Law Enforcement

U.S. Fish & Wildlife Service

Mail Stop 3012

1849 C Street NW

Washington, D.C. 20240

ph: 202-208-3809

fx: 202-482-3716

*DOI does not have email access at this time

U.S. Department of Agriculture

Tom Darden

Acting Director Wildlife, Fish, Watershed, Air, and Rare Plants Staff

USDA Forest Service

Sidney R. Yates Federal Building

201, 14th Street at Independence Avenue, SW

Washington, D.C. 20250

ph: 202-205-1167

fx: 202-205-1599

email address to follow

Additionally, the contacts identified above should be copied on all

communications between the Secretariat and U.S. state and local officials (including an electronic copy to the U.S. Environmental Protection

Agency via frigerio.lorry@epa.gov).

152 FACTUAL RECORD: BC MINING SUBMISSION
Second bullet:

– The following sentence should be included after the first sentence in

the first paragraph: “All requests for information from government

authorities will be in writing.”

– Bullet (i) under the second bullet should be revised as outlined above.

– Bullet (iii) under the second bullet should be removed for the reasons

stated above.

Fourth bullet: If the Secretariat obtains independent experts to develop

information, the Secretariat should ensure that such experts represent a

balanced point of view.

U.S. Comments on the Overall plan to develop a factual record

on SEM-97-006, 98-004, 98-006, and 00-004 submitted by the

CEC Secretariat on December 14, 2001

Since these four documents contain much of the same “boilerplate” language, the comments outlined below apply to all four work

plans.

Overall Scope of the Fact Finding Section

Bullet (iii) is unnecessary. Bullet (ii) is general in nature and effectively covers the substance addressed in bullet (iii), therefore, the third

bullet should be removed.

Overall Plan Section

Second bullet:

– The following sentence should be included after the first sentence in

the first paragraph: “All requests for information from government

authorities will be in writing.”

– Bullet (i) under the second bullet should be revised as outlined above.

– Bullet (iii) under the second bullet should be removed for the reasons

stated above.

APPENDIX 3 153
Fourth bullet: If the Secretariat obtains independent experts to develop

information, the Secretariat should ensure that such experts represent a

balanced point of view.

154 FACTUAL RECORD: BC MINING SUBMISSION
APPENDIX 4

Request for Information, dated January 2002

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

for Preparation of a Factual Record

Submission SEM 98-004 (BC Mining)

January 2002

I. The factual record process

The Commission for Environmental Cooperation (CEC) of North

America is an international organization created under the North American Agreement on Environmental Cooperation (the NAAEC) by Canada, Mexico and the United States (together, the Parties). The CEC

operates through three organs: a Council, made up of a top-level environmental official from each of the Parties; a Joint Public Advisory Committee (JPAC), comprised of five citizens from each country; and a

Secretariat located in Montreal.

Article 14 of the NAAEC allows any non-governmental organization or person in North America to file a submission with the Secretariat

asserting that a Party to the NAAEC is failing to effectively enforce its

environmental law. This initiates a process of review of the submission

that can result in the Council instructing the Secretariat to prepare a

factual record in connection with the submission. A factual record seeks

to provide detailed information to allow interested persons to assess

whether a Party has effectively enforced its environmental law with

respect to the matter raised in the submission.

Under Articles 15(4) and 21(1)(a) of the NAAEC, in developing a

factual record, the Secretariat shall consider any information furnished

by a Party and may ask a Party to provide information. The Secretariat

also may consider any relevant technical, scientific or other information

that is publicly available; submitted by the JPAC or by interested nongovernmental organizations or persons; or developed by the Secretariat

or independent experts.

On 16 November 2001, the Council issued Council Resolution

01-11 unanimously instructing the Secretariat to develop a factual

record, in accordance with Article 15 of the NAAEC and the Guidelines

for Submissions on Enforcement Matters under Articles 14 and 15 of the

NAAEC (Guidelines), “for the assertion that Canada is failing to effecAPPENDIX 4 157
tively enforce section 36(3) of the Fisheries Act with respect to the Britannia Mine.” The Council directed the Secretariat, in developing the

factual record, to consider whether the Party concerned “is failing to

effectively enforce its environmental law” since the entry into force of

the NAAEC on 1 January 1994. In considering such an alleged failure to

effectively enforce, relevant facts that existed prior to 1 January 1994,

may be included in the factual record.

The Secretariat is now requesting information relevant to matters

to be addressed in the factual record for the BC Mining submission,

SEM-98-004. The following sections provide background on the submission and describe the kind of information requested.

II. The BC Mining submission

On 29 June 1998, the Sierra Club of British Columbia, Environmental Mining Council of British Columbia, and the Taku Wilderness Association, represented by the Sierra Legal Defence Fund (Submitters) filed

a submission with the CEC alleging the systemic failure of the Government of Canada to enforce section 36(3) of the Fisheries Act to protect fish

and fish habitat from the destructive environmental impacts of the mining industry in British Columbia. Section 36(3) prohibits the deposit of a

deleterious substance in water frequented by fish. Section 40(2) of the

Fisheries Act makes violation of section 36(3) an offence punishable by a

range of fines and/or imprisonment. The Submitters allege that there

have been no prosecutions of mining companies in British Columbia for

violations of section 36(3) for at least ten years, despite documented

ongoing violations resulting from acid mine drainage. They attribute

Canada’s alleged failure to effectively enforce section 36(3) in part to a

severe shortage of staff and resources. They also contend that Canada

has devolved responsibility for enforcing environmental laws to the

provinces, and that this has resulted in deterioration of transparency

and accountability. They claim that the failure to enforce section 36(3) of

the Fisheries Act has contributed to the decline of salmon runs in British

Columbia. They contend that the fact that the Tulsequah Chief, Britannia

and Mount Washington mines have been allowed to continue polluting

fish habitat for decades is prima facie evidence that enforcement mechanisms other than prosecution have failed.

The Submitters cite the Britannia Mine as an example. It operated

from 1905 to 1974. According to the Submitters, although the mine is

now abandoned, acid mine drainage and heavy metals continue to drain

from the mine into Britannia Creek and Howe Sound in staggering

158 FACTUAL RECORD: BC MINING SUBMISSION
quantities. They allege that Britannia Creek, once productive of salmon

habitat, is now virtually devoid of life and that there is a marked absence

of marine life in Howe Sound in the areas where Britannia Creek and an

outfall pipe from the mine flow into the marine waters of the Sound.

They also allege that elevated heavy metals levels have been found in

crabs, mussels, oysters and shrimp up to 18 km away, along with significantly reduced numbers of these species. The Submitters allege that no

Fisheries Act charges have ever been laid against the owners or operators

of the Britannia Mine.

In its response dated 8 September 1999, Canada describes its general approach to enforcing and assuring compliance with section 36(3) at

acid-generating mines in British Columbia and claims that this approach

is effective both generally and in the specific case of Britannia. With

respect to Britannia, Canada asserts that it has worked with the British

Columbia government to study the acid mine drainage problem and

that these efforts have resulted in a proposal to build an effluent treatment plant and landfill at the mine which are expected to reduce the concentration of metals in the mine effluent and render it non-acutely lethal

to fish.

III. Request for information

The Secretariat requests information relevant to the facts concerning:

(i) alleged violations of section 36(3) of the Fisheries Act in connection

with the Britannia Mine;

(ii) Canada’s enforcement of section 36(3) of the Fisheries Act in connection with the Britannia Mine; and

(iii) whether Canada is failing to effectively enforce section 36(3) of the

Fisheries Act in the context of the Britannia Mine.

IV. Examples of relevant information

Examples of relevant information include the following:

1. Information regarding the characteristics of acid mine drainage at

the Britannia Mine, including annual and seasonal volumes and

chemical composition.

APPENDIX 4 159
2. Information on whether and to what extent acid mine drainage

from the Britannia Mine renders water to which it is added deleterious to fish or fish habitat or to the use by man of fish that frequent

that water, including:

• monitoring or inspection results;

• studies carried out by or on behalf of owners or operators of the

Britannia Mine, universities, government, non-governmental

organizations or others;

• public complaints or petitions.

3. Information about remedial measures for controlling acid mine

drainage, including:

• whether such measures have been adopted at the Britannia

Mine;

• who is responsible for implementing such measures;

• cost of such measures and who bears the risk of cost over-run;

• effectiveness of such measures in ensuring compliance with section 36(3) of the Fisheries Act at the Britannia Mine.

4. Information on local, provincial or federal policies or practices

(formal or informal) regarding enforcement of, or ensuring compliance with, section 36(3) of the Fisheries Act, specifically ones that

might apply to acid mine drainage from the Britannia Mine.

5. Information on federal, provincial or local enforcement or compliance-related staff or resources available for enforcing or ensuring

compliance with section 36(3) of the Fisheries Act in connection

with the Britannia Mine.

6. Information on Canada’s or British Columbia’s efforts to enforce or

ensure compliance with Fisheries Act section 36(3) in connection

with the Britannia Mine, including for example:

• efforts to prevent violations, such as by providing technical

assistance;

• monitoring or inspection activity;

160 FACTUAL RECORD: BC MINING SUBMISSION
• public consultations;

• warnings, orders, charges or other enforcement action issued to

owners of the Britannia Mine;

• agreements entered into with owners or former owners or operators of the Britannia Mine;

• actions to remedy impacts to fish habitat caused by acid mine

drainage from the Britannia Mine; or

• coordination between different levels of government on

enforcement and compliance assurance.

7. Information on the effectiveness of Canada’s or British Columbia’s

efforts to enforce or ensure compliance with Fisheries Act section

36(3) in connection with the Britannia Mine, for example their

effectiveness in:

• remedying any violations of Fisheries Act sections 36(3) that

occurred;

or

• preventing future violations of that provision.

8. Information on barriers or obstacles to enforcing or ensuring compliance with section 36(3) of the Fisheries Act in connection with the

Britannia Mine.

9. Any other technical, scientific or other information that could be

relevant.

V. Additional background information

The submission, Canada’s response, the determinations by the

Secretariat, the Council Resolution, the overall plan to develop the factual record and other information are available in the Registry and Public Files section of Citizen Submissions on Enforcement Matters on the

CEC website: <http://www.cec.org>. These documents may also be

requested from the Secretariat.

APPENDIX 4 161
VI. Where to Send Information

Relevant information for the development of the factual record

may be sent to the Secretariat until 30 June 2002, to the following

address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393 St. Jacques St. West

Suite 200

Montreal QC H2Y 1N9

Canada

Tel. (514) 350-4300

* Please reference the submission number (SEM-98-004 / BC Mining)

in all correspondence.

For any questions, please send an e-mail to the attention of Katia Opalka,

at info@ccemtl.org.

162 FACTUAL RECORD: BC MINING SUBMISSION
APPENDIX 5

Request for Additional Information,

dated 8 May 2002

BC MINING (SEM-98-004)

FACTUAL RECORD

REQUEST FOR ADDITIONAL INFORMATION

8 May 2002

Please provide answers to and copies of – or access to – supporting

information for each of the following questions. If requested information will not be provided (including on a confidential basis) because

it is non-existent, confidential or privileged, or otherwise unavailable,

please provide an explanation.

1. Please provide details regarding the extent to which Canada has

taken any of the following actions in connection with enforcement

of s. 36(3) of the Fisheries Act at the Britannia Mine since 1 January

1994:

a) Inspections to monitor or verify compliance;

b) Investigations of alleged violations;

c) Issuance of warnings, directions by Fishery Inspectors, authorizations, permits, licenses, or Ministerial orders, or other

administrative orders of a preventive, curative or emergency

nature;

d) Court actions, such as injunctions, prosecution (including pursuant to s. 78.2 of the Fisheries Act; please see # 3, below), court

orders upon conviction, and civil suits for recovery of costs;

e) Appointing and training inspectors (please see # 4, below);

f) Seeking assurances of voluntary compliance or entering into

compliance agreements;

g) Publicly releasing non-compliance information;

h) Issuing bulletins or other periodic statements on enforcement

procedures;

i) Promoting environmental audits;

APPENDIX 5 165
j) Requiring record keeping and reporting (please see # 2,

below);

k) Conducting searches and seizures.

2. Guidelines for the Control of Liquid Effluents from Existing Metal Mines

(Guidelines) and Environmental Code of Practice for Mines (Code),

1977, issued under the Fisheries Act

Since 1 January 1994,

a) Have the owners of the Britannia Mine complied with the

reporting requirements stipulated in the Guidelines (s. 6 et seq.

and Schedule II)? Please provide details.

b) Has the undiluted effluent from the Britannia Mine complied

with the objectives set forth in the Guidelines (s. 5 and Schedule 1)? Please provide details.

c) If the answer to either 2a) or 2b) is no, please indicate whether a

compliance schedule has been negotiated and implemented

under the Guidelines.

d) The Explanatory Notes for the Guidelines indicate that

“[f]ailure to comply with a guideline is not itself an offence;

however, it may mean that the law itself (e.g. the general prohibition of deleterious discharges expressed in the Fisheries Act)

is being violated.” Please explain the role of the Guidelines in

the enforcement of s. 36(3) of the Fisheries Act at the Britannia

Mine.

e) Has the owner of the Britannia Mine complied with the

requirements of the Code, and in particular, s. 5.2 (“LongTerm Control of Contaminated Effluents”)? Please provide

details.

f) Has the owner of the Britannia Mine been given notice that a

provincial or other federal regulatory agency is performing

functions of the Minister of the Environment under the Guidelines? Please provide details.

3. Please explain the role of the Department of Justice in enforcing

s. 36(3) of the Fisheries Act with regard to the Britannia Mine, and

166 FACTUAL RECORD: BC MINING SUBMISSION
provide information regarding policies of the Department of Justice applicable to enforcement of s. 36(3) of the Fisheries Act at the

Britannia Mine, such as, without limitation, criteria for determining when prosecution would be in the public interest and evidentiary criteria. Please also explain why Environment Canada

contemplated bringing an action in public nuisance against the

owners of the Britannia Mine and the reasons why the Department

of Justice advised against this.

4. Please provide information regarding the human and financial

resources expended by Environment Canada since 1 January 1994

for the enforcement of s. 36(3) of the Fisheries Act in British Columbia and the human and financial resources that were available in

regard to enforcing or seeking compliance with s. 36(3) of the Fisheries Act at the Britannia Mine.

5. In a letter dated 4 October 2000, Canada was invited by the Deputy

Director of Waste Management of the Province of British Columbia to make a submission under the provincial Waste Management

Act “potentially responsible parties” process in connection with

the Britannia Mine. Please provide copies (on a confidential basis,

if necessary) of any submissions prepared and/or filed by Canada

under that process, as well as copies of any settlement agreements

a) reached by Canada with private potentially responsible parties,

the Government of British Columbia, and/or the owner of the Britannia Mine, or b) to which Canada intervened in any way.

6. Federal-provincial cooperation on enforcement

a) Please identify and provide information about and/or copies

of all past and present formal or informal agreements between

the Government of Canada and the province of British Columbia providing for the enforcement of s. 36(3) (or former s. 33) of

the Fisheries Act by the province and provide information

regarding the basis for and functioning of such agreements,

including, without limitation,

(i) the role of Chapter Fifteen of the Internal Trade Agreement,

1995 (as amended) and initiatives of the Canadian Council

of Ministers of the Environment (CCME), such as, without limitation, the Statement of Interjurisdictional Cooperation on Environmental Matters, the Canada-Wide Accord on

Environmental Harmonization and the Sub-Agreement on

APPENDIX 5 167
Inspections and Enforcement in the enforcement of s. 36(3)

of the Fisheries Act at the Britannia Mine;

(ii) any requirement that the province (1) include conditions

regarding compliance with s. 36(3) of the Fisheries Act

imposed by the federal government in permits issued

under the authority of provincial legislation or (2) subsequently enforce such conditions;

(iii) any provision for federal funding of provincial enforcement of s. 36(3) of the Fisheries Act; and

(iv) any requirement for the federal government to fund

and/or carry out scientific investigations related to

enforcing s. 36(3) of the Fisheries Act.

b) Please explain whether and how any cooperative arrangements or agreements between Canada and British Columbia

for the enforcement of s. 36(3) of the Fisheries Act have been

successful in achieving compliance with the Act in the shortest

possible time and with no further occurrence of violations at

the Britannia Mine.

c) Please explain whether and how the technical advice and

expertise provided by Environment Canada to the Province

of British Columbia to support the province’s enforcement

efforts has resulted in improved effectiveness in enforcing and

achieving compliance with the Act.

7. Federal funding

a) Please provide information regarding any federal initiatives,

policies or programs applicable to mines such as the Britannia

Mine that provide or provided funding for research and/or

the remediation of contaminated sites or effluent treatment,

including, without limitation, the National Contaminated

Sites Remediation Program, the Canada-B.C. Infrastructure

Program, and the MEND Program. Relevant information

includes, without limitation, program objectives; criteria used

to determine eligibility for funding and amount of funding;

environmental assessment requirements under s. 5(1)(b) of the

Canadian Environmental Assessment Act; and procedures established to ensure ongoing compliance with federal requirements and cost-recovery.

168 FACTUAL RECORD: BC MINING SUBMISSION
b) Please explain the connection, if any, between such programs

and the enforcement of s. 36(3) of the Fisheries Act at the Britannia Mine.

8. Enforcement of s. 36(3) of the Fisheries Act and abandoned mine

sites

a) Please explain whether and how the enforcement measures in

the Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy (Policy) have been

applied at the Britannia Mine. Please indicate the particular

enforcement measures that have been applied and the reasons

for choosing those measures.

b) In the conclusion to its response to the submission, dated

8 September 1999, Canada refers to the Britannia Mine as

an “abandoned mine.” In the 1994-95 Annual Report of the

CCME on the National Contaminated Sites Remediation Program, the Britannia Mine is listed as an “orphan site.” Please

provide information regarding criteria used to identify the

Britannia Mine as “abandoned” or “orphaned”, and explain

whether and how this classification has affected application of

the Policy at the Britannia Mine.

c) Please explain the origins and mandate of the Multistakeholder Advisory Committee on Abandoned Mines (struck at

the 2001 Mine Ministers Conference) and its role, if any, in

addressing non-compliance with s. 36(3) of the Fisheries Act at

abandoned mines in Canada such as the Britannia Mine.

APPENDIX 5 169

APPENDIX 6

Section 42 of the Fisheries Act,

R.S.C. 1985, c. F-14

Section 42 of the Fisheries Act,

R.S.C. 1985, c. F-14

42. (1) Where there occurs a deposit of a deleterious substance in

water frequented by fish that is not authorized under section 36 or a serious and imminent danger thereof by reason of any condition, the persons who at any material time

(a) own the deleterious substance or have the charge, management or control thereof, or

(b) are persons other than those described in paragraph (a) who

cause or contribute to the causation of the deposit or danger

thereof,

are, subject to subsection (4) in the case of the persons referred to in paragraph (a) and to the extent determined according to their respective

degrees of fault or negligence in the case of the persons referred to in

paragraph (b), jointly and severally liable for all costs and expenses

incurred by Her Majesty in right of Canada or a province, to the extent

that those costs and expenses can be established to have been reasonably

incurred in the circumstances, of and incidental to the taking of any measures to prevent any such deposit or condition or to counteract, mitigate

or remedy any adverse effects that result or may reasonably be expected

to result therefrom.

Recovery

(2) All the costs and expenses referred to in subsection (1) are

recoverable by Her Majesty in right of Canada or a province with costs in

proceedings brought or taken therefor in the name of Her Majesty in any

such right in any court of competent jurisdiction.

Liability to fishermen

(3) Where, as a result of a deposit that is not authorized under section 36, a deleterious substance enters water frequented by fish, the persons described in paragraphs (1)(a) and (b) are, subject to subsection (4)

in the case of the persons described in paragraph (1)(a) and to the extent

determined according to their respective degrees of fault or negligence

in the case of the persons described in paragraph (1)(b), jointly and severally liable for all loss of income incurred by any licensed commercial

APPENDIX 6 173
fisherman, to the extent that the loss can be established to have been

incurred as a result of the deposit or of a prohibition to fish resulting

therefrom, and all such loss is recoverable with costs in proceedings

brought or taken therefor in any court of competent jurisdiction.

Defences to liability

(4) The liability of any person described in paragraph (1)(a) is absolute and does not depend on proof of fault or negligence but no such person is liable for any costs and expenses pursuant to subsection (1) or loss

of income pursuant to subsection (3) if he establishes that the occurrence

giving rise to the liability was wholly caused by

(a) an act of war, hostilities, civil war, insurrection or a natural

phenomenon of an exceptional, inevitable and irresistible

character; or

(b) an act or omission with intent to cause damage by a person

other than a person for whose wrongful act or omission he is

by law responsible.

Exception

(5) Nothing in this section limits or restricts any right of recourse

that any person who is liable pursuant to this section may have against

any other person.

Limitation

(6) No proceedings may be commenced under subsections (1) to (3)

at any time later than two years after the occurrence to which the proceedings relate could reasonably be expected to have become known to

Her Majesty in right of Canada or a province or to any licensed commercial fisherman, as the case may be.

Exception

(7) Subsections (1) to (3) do not apply in respect of any deposit of a

deleterious substance that, within the meaning of Part XV of the Canada

Shipping Act, constitutes a discharge of a pollutant caused by or otherwise attributable to a ship.

174 FACTUAL RECORD: BC MINING SUBMISSION
Other civil remedies not affected

(8) No civil remedy for any act or omission is suspended or affected

by reason only that the act or omission is authorized under this Act, is an

offence under this Act or gives rise to civil liability under this Act.

R.S., c. 17 (1st Supp.), s. 3; 1976-77, c. 35, s. 7.

APPENDIX 6 175

APPENDIX 7

List of Information Gathered

by the Secretariat

Information Gathered for the Development of a Factual Record

on Submission SEM-98-004 (BC Mining)

APPENDIX 7 179

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

36 5/8/1973 Pollution Control Branch,

Water Resource Service,

Department of Lands,

Forests, and Water

Resources, BC

Application for a permit under the

Pollution Control Act, 1967

(Effluent), Anaconda Canada

Limited

EC

37 10/22/1974 Brodie, J.B., Head, Mining

Section, Industrial

Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Memo to File re meeting with

Anaconda on 17 October 1974

EC

38 4/3/1975 Brodie, J.B., Head, Mining

Section, Industrial Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Memo to File re meeting with

Anaconda on 1 April 1975 re

proposal for submerged outfall

EC

39 5/27/1975 Brodie, J.B., Head, Mining

Section, Industrial

Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Memo to File re 23 May 1975

telephone conversation with

Dan Cumming of Anaconda

EC

40 8/3/1976 Brodie, J.B., Head, Mining

Section, Industrial Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Letter to Anaconda re review

of Britannia proposal and

requirements re effluent

treatment

EC

41 3/4/1977 Brodie, J.B., Head, Mining

Section, Industrial

Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Memo to file re meeting with EPS

and Fisheries re: Anaconda Ltd.

(AE-2194)

EC

43 4/26/1977 Hodgson, F.P., Chief,

Industrial Division,

Pollution Control Branch,

Water Resource Service,

Department of Lands,

Forests and Water

Resources, BC

Letter to Anaconda re approval

of Britannia plan

EC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
180 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

42 5/11/1977 Brodie, J.B., Head, Mining

Section, Industrial

Division, Pollution Control

Branch, Water Resource

Service, Department of

Lands, Forests and Water

Resources, BC

Memo to file re outfall and

hydrostatic bulkhead planned for

the mine

EC

115 2/21/1978 Brodie, J.B., Mining

Section, Industrial

Division

Memo to File Re: Anaconda, File:

0262100-AE-2194

S

149 6/20/1979 Option to Purchase Option to purchase the Britannia

Mine entered into by Anaconda

Canada Exploration Ltd. and

Copper Beach Estates Ltd.

Ralph

Fulber

44 12/10/1979 Hamilton, W.G., Regional

Manager, Pollution

Control Branch, Lower

Mainland Region, Ministry

of Environment, BC

Letter to Anaconda re ongoing

requirements pursuant to Pollution

Control Act covering

discontinuance of operations at the

Britannia Mine

Ralph

Fulber

45 1/14/1980 Hamilton, W.G., Regional

Manager, Pollution

Control Branch, Lower

Mainland Region, Ministry

of Environment, BC

Memo to file re transfer of waste

discharge responsibilities at

Britannia to Copper Beach Estates

Limited

Ralph

Fulber

97 1/25/1980 Fodchuk, B.W.F., Russell

& DuMoulin

Letter to Registrar, Land Title

Office, Re: Sale – Anaconda Canada

Exploration Ltd. to Copper Beach

Estates Ltd. / Application

Numbers G79906 – G70023

S

46 2/21/1980 Hodgson, F.P., Manager,

Pollution Control Section,

Waste Management

Branch, Ministry of

Environment, BC

Letter to Copper Beach Estates re

request for transfer of orders from

Anaconda to Copper Beach

EC

47 1/9/1981 n/a “Monitoring Program for Copper

Beach Estates Ltd. – AE-2194”

EC

48 1/29/1981 Ferguson, R.H., Director of

Pollution Control, Waste

Management Branch,

Ministry of Environment,

BC

Requirements Pursuant to

Pollution Control Act Covering

Discontinuance of Operations at

the Anaconda Britannia Mine

EC

49 2/13/1984 Apostoli, P.A., Waste

Management Officer,

Waste Management

Branch, Lower Mainland

Region, Ministry of

Environment, BC

Letter to Copper Beach Estates re

reviewing past communications

regarding transfer of discharge

responsibilities at Britannia

EC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 181

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

50 3/23/1984 Cumming, R.D., Property

Manager, Copper Beach

Estates Ltd.

Letter to P. Khone, Head of the

Industrial Section, Waste

Management Branch, Lower

Mainland Region, B.C. Ministry of

Environment, re standard for

dissolved metals in January 1981

order and breach of dam at 2200

level

EC

51 5/11/1984 Khare, P., Head,

Industrial/Air Section,

Waste Management

Branch, Lower Mainland

Region, Ministry of

Environment, BC

Letter to R.D. Cumming, Property

Manager, Copper Beach Estates

Ltd., re information on flows from

2200 portal

EC

52 7/5/1984 Trudeau, Dennis M.,

Project Technologist, Field

Programs, Government of

Canada

Memo to file re field trip to

Britannia with Gordon Thompson

and Lisa Cox to supplement

September 1982 survey

EC

154 12/5/1984 Munro, Margaret,

Vancouver Sun

“Britannia Beach Microbes Won’t

Quit – Old mine poses pollution

threat”

EC

53 5/7/1986 Stringer, M.J., Waste

Management Officer,

Industrial Section, Waste

Management Branch,

Lower Mainland Region,

Ministry of Environment,

BC

Letter to R.D. Cumming, Property

Manager, Copper Beach Estates

Ltd., re copy of environmental

impact assessment for Britannia

S

65 4/6/1990 Dixon, Christine, Smith,

Lyons, Torrance,

Stevenson

Letter to H.G. Maxwell, Waste

Management Officer, B.C. Ministry

of Environment, Waste

Management Branch, Surrey, B.C.

Re: Copper Beach Estates Ltd.

S

92 7/30/1990 Robb, Raymond H., Sr.

Waste Management

Officer, Ministry of

Environment, BC

Memo to P. Khare, Head,

Industrial/Air Section Re:

Recommended Ministry Action for

Copper Beach Estates Order

S

66 6/26/1991 Alesi, Joseph, Thurber

Environmental

Consultants Ltd.

Letter to Gerry Armstrong, Deputy

Minister of the Environment,

Ministry of Environment, Victoria,

B.C. re: Britannia Beach

Remediation Cooperative

Agreement Proposal

S

94 11/8/1991 Robb, Raymond H., Sr.

Waste Management

Officer, Ministry of

Environment, BC

Memo to H.Y. Wong, Regional

Environmental Protection

Manager, Re: Revision of Copper

Beach Order

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
182 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

55 11/29/1991 Deputy District Registrar,

Supreme Court of British

Columbia

Order for the Conduct of Sale,

Vancouver Registry No. H910653

S

56 7/17/1992 Britannia Reclamation

Advisory Committee

Meeting minutes from 17 July 1992

Meeting

S

69 12/16/1992 n/a Re: MLA David Mitchell’s letter of

December 16, 1992 requesting a

status report on Britannia Beach

S

27 3/25/1993 Core Group on

Contaminated Site

Liability, CCME

“Contaminated Site Liability

Report – Recommended Principles

for a Consistent Approach Across

Canada” – PN 1122

SEC

67 5/26/1993 Wong, Mike, Regional

Environmental Protection

Manager, Lower Mainland

Region, Ministry of

Environment, Lands and

Parks, BC

Memo to Wilf Dreher, Regional

Water Manager, re: Replacement of

Submerged Outfall Pipe at

Britannia Beach

S

93 8/9/1993 Moore, Brent, Biologist,

Environmental Protection,

B.C. Environment, Lands

and Parks

Memo to M. Gow-Head,

Environmental Section Re: Legal

Bioassay, Copper Beach Estates;

File: 77500-01

S

29 11/00/1993 CCME “A National Commitment to

Pollution Prevention”

S

57 11/25/1993 Robb, R.H., Assistant

Regional Waste Manager,

Ministry of Environment,

Land and Parks, BC

Pollution Prevention and Pollution

Abatement Order Under the Waste

Management Act

S

63 1/9/1994 n/a Signature Page S

64 1/31/1994 Drummond, Tim, Copper

Beach Estates Ltd.

Letter to R.H. Robb, Assistant

Regional Waste Manager, Lower

Mainland Region, Ministry of

Environment, British Columbia, Re:

Pollution Prevention and Pollution

Abatement Order Under the Waste

Management Act / File 0E12635,

X-Ref AE02194

S

70 2/28/1994 n/a Call form / Person contacted:

Gordon Ford / File No. AE-2194

S

30 03/00/1994 Feasby, Grant (CANMET)

and R.K. Jones, Mining

Sector, Natural Resources

Canada

“Report of results of Workshop on

Mine Reclamation, Toronto,

Ontario, March 10-11, 1994”

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 183

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

68 4/12/1994 Ian MacDonald E-mail to Ray Robb re: Questions

re Britannia Acid Drainage

S

62 6/2/1994 Nassichuk, M.D.,

A/Manager, Pollution

Abatement Division,

Environmental Protection,

Pacific & Yukon Region,

Environment Canada

Letter to Mike Wong, Regional

Manager, Environmental

Protection Branch, Ministry of

Environment, Lands & Parks,

British Columbia, re: File 0E12635,

X-REF AE02194, Copper Beach

Estates Ltd

S

61 6/16/1994 Robb, R.H., Head,

Industrial and Air Section,

Lower Mainland Region,

Ministry of Environment,

Land and Parks, BC

Letter to M.D. Nassichuck,

A/Manager, Pollution Abatement

Division, Environment Canada, re:

“Britannia Beach – Acid Mine

Drainage”

S

72 7/18/1994 Hubbard, L.T., Director,

Industrial Waste and

Hazardous Contaminants,

Environmental Protection

Division, Industrial Waste

and Hazardous

Contaminants Branch,

Ministry of Environment,

Lands and Parks, BC

Letter to Earle Anthony, Regional

Director General, Pacific and

Yukon Region, Environment

Canada Re: Application for joint

funding under the BC/Federal

Orphan Site Agreement

S

58 8/2/1994 Supreme Court of British

Columbia

Order naming Coopers & Lybrand

Limited the Receiver-Manager for

the Britannia Assets

S

71 8/10/1994 Doyle, Dennis A., Barrister

and Solicitor, Ministry of

Attorney General, Legal

Services Branch, BC

Letter to Lanny T. Hubbard,

Deputy Director of Waste

Management, Environmental

Protection Division, Ministry of

Environment, Land and Parks,

British Columbia, Re: Copper

Beach Estates

S

73 8/29/1994 IRM Notes from discussion with Dennis

Doyle Aug. 29, 1994

S

59 9/12/1994 Robb, R.H., Assistant

Regional Waste Manager,

Lower Mainland Region,

Ministry of Environment,

Land and Parks, BC

E-mail to Dennis Doyle, AG:CE,

Fred Barnes, Ian MacDonald, Jim

McCracken, Dave Robertson, Mike

Wong, Gordon Ford, Lanny

Hubbard, and Harry Vogt re:

“Britannia: Fed/Prov Meeting”

S

60 9/12/1994 McDonald, Ian E-mail to Fred Barnes, Jim

McCracken, Ray Robb, Dave

Robertson, Mike Wong, Gordon

Ford, Lanny Hubbard, Harry

Vogt, Dennis Doyle re: “Britannia:

Fed/Prov Meeting”

S
184 FACTUAL RECORD: BC MINING SUBMISSION

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

78 9/20/1994 Bury, Andrew, Owen Bird Letter to Dennis A. Doyle, Ministry

of Attorney General, Legal Services

Branch, British Columbia, Re:

Britannia Beach

S

152 9/27/1994 MacDonald, Ian Note to file Re: Britannia Beach:

Meeting Notes September 23, 1994

S

79 9/28/1994 Ford, Gordon Email to Harry Vogt, Ian

MacDonald, Dennis Doyle Re: B.C.

Funding for Britannia Orphan Sites

Agreement

S

85 9/30/1994 Wong, Mike Email to Lanny Hubbard, cc.

Gordon Ford, Ray Robb, Jim

McCracken, Ian MacDonald, Re:

Britannia

S

151 10/3/1994 Wong, Mike E-mail to Lanny Hubbard re:

Britannia stating “the Deputy

Minister has approved an approach

to use Section 17 of the Mines Act

to access Consolidated Revenue for

funding of our half of $1.0 million

for studies.”

S

122 10/19/1994 Patterson, Master 40091 British Columbia Ltd. v.

Copper Beach Estates Ltd.,

Britannia Creek Gold Course Ltd.,

James Timothy Scott Drummond,

R.V. Services Ltd., Richard K.F. Ng,

Bennett and Associates, Regional

Waste Manager, Vancouver

Registry H910653, Oral Reasons for

Judgment, Pronounced in

Chambers

S

95 10/27/1994 MacDonald, Ian Email to Ray Robb, cc. Dennis

Doyle, Murray Galbraith, Dave

Robertson, Gordon Ford, Jim

McCracken, B. Marty Roberts Re:

Britannia Mega Budget

S

86 11/1/1994 McCandless, Robert G.,

Pollution Abatement

Division, Industrial

Programs Section,

Environmental Protection,

Environment Canada

Fax to Ian MacDonald, BC MELP,

Surrey

S

87 11/3/1994 Ford, Gordon, P. Eng.,

Technical Advisor, Mining

and Smelting, Technical

Services and Special

Waste, Environmental

Protection Division,

Ministry of Environment,

Lands and Parks, BC

Memorandum to H.J. Vogt,

A/Director, Industrial Waste &

Hazardous Contaminants Branch,

Re: Policy Direction for Britannia

Technical Advisory Committee

S
APPENDIX 7 185

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

81 11/23/1994 Doyle, Dennis A., Barrister

and Solicitor, Ministry of

Attorney General, Legal

Services Branch, BC

Letter to Owen Bird, attn: Andrew

Bury, Re: Copper Beach Estates

S

32 00/00/1995 CCME “The National Contaminated Sites

Remediation Program – 1994-95

Annual Report”

SEC

80 2/7/1995 MacDonald, Ian Email to Donna Humphries Re:

Revisions to Treasury Board

Submission

S

74 4/11/1995 McCracken, J.W., Regional

Director, Lower Mainland

Region, BC Environment

Letter to Vic Niemela, Pacific and

Yukon Region, Environment

Canada, Re: BC/Federal Orphan

Site Agreement – Britannia Beach

S

75 4/13/1995 Niemela, V.E., Regional

Director, Environmental

Protection Branch, Pacific

and Yukon Region, EC

Letter to J.W. McCracken, Regional

Director, Lower Mainland Region,

B.C. Ministry of Environment,

Land and Parks, Re: BC/ Federal

Orphan Site Agreement – Britannia

Beach

S

89 4/19/1995 MacDonald, Ian Memo to Jim McCracken, Regional

Director, Lower Mainland Region,

Environmental Protection, Ministry

of Environment, Lands and Parks,

British Columbia, Re: Federal

Funding/Invoices for Britannia

S

82 5/9/1995 Anthony, E.D., Regional

Director General, Pacific

and Yukon Region, EC

Letter to Dr. Thomas Gunton,

Deputy Minister, Ministry of the

Environment, Lands and Parks,

British Columbia, Re: File

4484-37/C1235.

S

76 5/19/1995 Wong, Mike Excerpt from an email message

referencing conversation with

Dennis Doyle about other cost

recovery mechanisms attached to

an email from Mike Wong to Jim

McCracken

S

96 6/5/1995 Gunton, Thomas, Deputy

Minister

Copy of letter to E.D. Anthony,

Regional Director General,

Environment Canada File Number:

280-30; Ref: 50308 Britannia Mine

Site

S
186 FACTUAL RECORD: BC MINING SUBMISSION

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

83 6/22/1995 Anthony, E.D., Regional

Director General, Pacific

and Yukon Region, EC

Letter to Dr. Jon O’Riordan,

Assistant Deputy Minister,

Ministry of Environment, Land and

Parks, BC

S

84 7/7/1995 McCracken, Jim Email to Mike Wong, Ray Robb,

Ian MacDonald, cc. Jon O’Riordan,

Donna Humphries, Re: Britannia

S

88 11/27/1995 n/a Draft Ministry of Environment,

Lands and Parks Decision Issue,

File No. AE-2194, Re: Britannia

Beach Acid Mine Drainage

Pollution

S

108 12/14/1995 MacDonald, Ian Email to Brent Moore, re: Britannia

AMD Project

S

90 2/14/1996 McCracken, J.W., Regional

Director, Lower Mainland

Region, BC Environment

Letter to Vic Niemela, Regional

Director, Pacific and Yukon Region,

Environment Canada, Re:

Proposals to Control Acid Mine

Drainage at Britannia Mine

S

91 4/24/1996 Niemela, V.E., Regional

Director, Environmental

Protection Branch, Pacific

and Yukon Region, EC

Letter to J.W. McCracken, Regional

Director, Lower Mainland Region,

B.C. Ministry of Environment,

Land and Parks (Missing Page 2).

S

31 05/00/1996 CCME “A Strategy to Fulfil the CCME

Commitment to Pollution

Prevention” – PN 1225

SEC

33 04/00/1997 CCME “Guidance Document on the

Management of Contaminated Sites

in Canada” – PN 1279

SEC

20 04/00/1997 EVS Environment

Consultants

“Summary and Overview of

Environmental Effects of the

Anaconda Britannia Mine on

Juvenile Salmonids and the Marine

Environment in Howe Sound”

prepared for EC, North Vancouver,

EVS Project No. 3/047-58

EC

18 05/00/1997 Chretien, Andre Remy

Nicolas

“Geochemical Behaviour, Fate and

Impacts of Cu, Cd and Zn from

Mine Effluent Discharges in

Howe Sound” – Ph.D. Thesis ,

Department of Earth and

Ocean Sciences, UBC

EC
APPENDIX 7 187

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

104 5/16/1997 Price, William,

Reclamation Engineer

Letter to Copper Beach Estates Ltd.,

att: Mr. Tim Drummond, cc.

Ecospirit Land Reclamation Ltd.;

R. Bone, Nanaimo; G. Ford,

Victoria, re: Britannia Mine.

S

98 9/16/1997 Biagi, Eric A., Manager,

Coopers & Lybrand

Limited

Affidavit filed in support of an

application for directions from the

Supreme Court of British

Columbia, 40091 British Columbia

Ltd. v. Copper Beach Estates Ltd.,

Britannia Creek Golf Course Ltd.,

James Timothy Scott Drummond,

P.V. Services Ltd., Richard K.F. Ng,

Bennett and Associates; Vancouver

Registry No. H910653

S

153 9/16/1997 Biagi, Eric A., Manager,

Coopers & Lybrand

Limited

Affidavit filed in support of an

application for directions from the

Supreme Court of British

Columbia, 40091 British Columbia

Ltd. v. Copper Beach Estates Ltd.,

Britannia Creek Golf Course Ltd.,

James Timothy Scott Drummond,

P.V. Services Ltd., Richard K.

S

99 9/23/1997 Pomeroy, Martin, Head,

Industrial Section,

Environmental Protection

Branch, Pacific and Yukon

Region, EC

Letter to Ray Robb, Environmental

Protection, Ministry of

Environment, Lands and Parks,

BC, File: 4484-37/C1235

S

100 10/1/1997 Biagi, Eric A., Manager,

Coopers & Lybrand

Limited

Letter to Dennis A. Doyle, Ministry

of Attorney General, Legal Services

Branch, British Columbia, cc. R.

Driedger, Pollution Protection,

Victoria; R.H. Robb, Assistant

Regional Waste Manager, Surrey;

R. McCandless, Environment

Canada

S

101 10/2/1997 Cole, Allen L., Walker &

Company

Letter to Geoffrey Thompson,

Ladner Downs, cc. Dennis Doyle,

Ministry of Attorney General, re:

Copper Beach Estates, Reclamation

Project

S

102 10/2/1997 Doyle, Dennis A., Barrister

and Solicitor, Ministry of

Attorney General, Legal

Services Branch, BC

Letter to Allen L. Cole, Walker &

Company, cc. Geoff Thompson,

Ladner Downs; Barry Azevedo,

B.C. Environment, Surrey; Ron

Driedger, B.C. Environment,

Victoria, Re: Copper Beach Estates,

Reclamation Project

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
188 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

103 10/8/1997 Errington, John C., Deputy

Chief Inspector of Mines,

BC

Letter to Tim Drummond,

President, Copper Beach Estates,

cc. Ted Hall, Regional Manager,

Nanaimo; Dennis Doyle, Ministry

of Attorney General, Victoria; Ron

Driedger/Rob McLenehan, BC

Environment, Victoria; Ray Robb,

BC Environment, Surrey; Rob

McCandless, Environment Canada,

Vancouver; Receiver Manager

c/o Geoffrey Thompson, Ladner

Downs, Vancouver; SquamishLillooet, Regional District,

Pemberton; Re: Reclamation

of Lands at Britannia

S

105 10/17/1997 Errington, John C., Deputy

Chief Inspector of Mines,

BC

Letter to Tim Drummond,

President, Copper Beach Estates,

cc. Paul Jarman, Ministry of

Attorney General, Victoria, Peter

Ostergaard, Assistant Deputy

Minister, Energy and Minerals

Division, MEI; Fred Hermann,

Chief Inspector of Mines, Mines

Branch, Victoria; Ted Hall,

Regional Manager, Nanaimo; Bill

Price, Senior Reclamation

Agrologist, Mines Branch,

Smithers; Dennis Doyle, Ministry

of Attorney General, Victoria; Ron

Driedger/Rob McLenehan, BC

Environment, Victoria; Gordon

Ford, BC Environment, Victoria;

Ray Robb, BC Environment,

Surrey; Rob McCandless,

Environment Canada, Vancouver;

Receiver-Manager, c/o Geoffrey

Thompson, Ladner Downs,

Vancouver; Coopers & Lybrand

Limited, Vancouver;

Squamish-Lillooet Regional

District, Pemberton, Re:

Reclamation of lands at Britannia

S

106 10/22/1997 Drummond, Tim, Copper

Beach Estates Ltd.

Letter to John C. Errington,

Government of British Columbia,

Mines Branch, Ministry of

Employment and Investment

S

107 10/29/1997 Nassichuk, M.D.,

Manager, Pollution

Prevention and

Assessment Division,

Environmental Protection

Branch, Pacific & Yukon

Region, EC

Letter to Fred Hermann, Chief

Inspector of Mines, Ministry of

Employment and Investment –

Energy and Minerals Branch, cc.

T. Hall, J. McCracken, V. Niemela,

T. Perry, File: 4484-37/C1235

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 189

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

109 12/16/1997 Driedger, Ron Email to Dick Roberts Re: Update

on Britannia – Funding Possibilities

and Remedial Options

S

14 00/00/1998 Grout, J.A. , C.D. Levings,

B. Nidle, B. Piercey, D.

Marsden, DFO Science,

West Vancouver

“Beach Seine Data from near

Britannia Mines and in Howe

Sound, British Columbia, during

1997” – Canadian Data Report of

Fisheries and Aquatic Sciences 1044

EC

110 1/16/1998 Azevedo, Barry Email to Jim McCracken, cc. Dave

Robertson; Douglas T. Pope; Dick

H. Roberts; Ray Robb; Valerie Z.

Cameron; re: Britannia Soil

Relocation Proposal

S

148 2/1/1998 Fulber, Ralph “Britannia Beach-Copper Beach

Estates Ltd.-Anaconda”

S

111 3/11/1998 Hermann, F.W., Chief

Inspector of Mines, BC

Letter to Tim Drummond, Copper

Beach Estates Ltd., cc. Ted Hall,

Regional Manager, Nanaimo; John

Errington, Manager, Reclamation

and Permitting, Victoria; Tim

Eaton, Manager, Geotechnical

Engineering, Victoria; Rob

McCandless, Environment Canada,

Vancouver; Robert McLenehan,

Head, Contaminated Sites

Remediation Unit, Victoria; Barry

Azevedo, Industrial Pollution

Prevention Officer, Surrey; Bob

MacPherson, Manager,

Planning/Development,

Squamish-Lillooet Regional

District; Eric Biagi, Coopers &

Lybrand, Vancouver; re: Pilot

Reclamation Program at the

Britannia Mine

S

112 3/12/1998 Robb, R.H., Head,

Industrial Section, Lower

Mainland Region, Ministry

of Environment, Land and

Parks, BC

Letter to The Clarke Group, att.

Louis Clarke, cc. Ted Hall, Ministry

of Employment and Investment,

Nanaimo; Rob McLenehan,

Contaminated Sites Remediation

Unit, Victoria; re: Waste Soil

Disposal Proposal at Britannia

Mine

S

34 10/00/1998 EC “The Government Response to the

Third Report of the Standing

Committee on Environment and

Sustainable Development

(“Enforcing Canada’s Pollution

Laws: The Public Interest Must

Come First!”)”

SEC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
190 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

15 00/00/1999 Grout, J.A., C.D. Levings,

G.E. Piercey, B. Mossop,

DFO Science, West

Vancouver

“Biological Data From Near

Britannia Mine and in Howe

Sound, British Columbia, During

1997-1998” – Canadian Data Report

of Fisheries and Aquatic Sciences

1055

EC

116 2/12/1999 Nassichuk, M.D.,

Manager, Pollution

Prevention and

Assessment Division,

Environmental Protection

Branch, Pacific & Yukon

Region, EC

Letter to Jim McCracken, Regional

Director, Lower Mainland Region,

Ministry of Environment, Lands

and Parks, BC

S

117 2/12/1999 Nassichuk, M.D.,

Manager, Pollution

Prevention and

Assessment Division,

Environmental Protection

Branch, Pacific & Yukon

Region, EC

Letter to Ron Driedger, Pollution

Prevention and Remediation

Branch, Ministry of Environment,

Lands and Parks, BC, cc. Jim

McCracken

S

118 3/30/1999 Environment Canada &

Copper Beach Estates Ltd.

Agreement for cooperation

between Environment Canada and

Copper Beach Estates Ltd. to carry

out until September 30, 1999, or

later, continuous monitoring of

drainage flows in streams at the

closed Britannia Mine, near

Vancouver, BC

S

19 04/00/1999 Marsden, A.D. “The Effects of Acid Mine Drainage

at Britannia Beach, B.C., on Fucus

Gardneri and Associated Intertidal

Algae” – M.Sc. Thesis, Department

of Botany, UBC

EC

119 4/13/1999 District of Squamish 13 April 1999 Council Meeting /

Questions and Answers (Draft)

S

120 4/15/1999 Squamish-Lillooet

Regional District

15 April 1999 Southern Planning

Committee Meeting / Questions

and Answers (Draft)

S

124 4/25/1999 Lower Mainland Mine

Development Review

Committee

Copper Beach Estates Ltd. –

Britannia Mine Reclamation and

Remediation Project / Minutes of

14 April 1999 Meeting

S

113 5/6/1999 Environment Canada “Pollution at the Britannia Mine” S

125 5/19/1999 McCandless, Rob Email to Ted Hall, Barry Azevedo

(MELP), George Headley, Gregg

Stewart, Re: Draft DOE comments

on Britannia

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 191

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

114 6/20/1999 Fraser Basin Council Britannia Mine Reclamation and

Remediation Proposal Report on

Public Consultation

S

147 6/20/1999 Fotheringham, Brady,

North Shore News

“Investors claim a big loss – Civil

case on Britannia deal dropped”

S

130 8/16/1999 Lower Mainland Mine

Development Review

Committee

Minutes of 5 August 1999 Meeting

– Britannia Remediation Project

S

121 8/19/1999 Robb, R.H., Assistant

Regional Waste Manager,

Pollution Prevention

Program, Lower Mainland

Region, Ministry of

Environment, Lands and

Parks, BC

Technical Rationale for Draft

Remediation Order OE-16097,

Draft Effluent Discharge Permit

PE-12840 and Draft Refuse

Discharge Permit PR-15938 (under

the Provisions of Section 27.1 and

Section 9 of the Waste Management

Act, R.S.B.C. 1996, Chapter 482)

S

123 8/30/1999 Gimse, Susan, Chair,

Squamish-Lillooet

Regional District

Letter to Dan Miller, Premier,

British Columbia, cc. Pam

Tattersfield, Area Director D-SLRD;

MLA Ted Nebbling; SLRD Board

of Directors; Ray Robb, Ministry

of Environment; Ted Hall, Ministry

of Mines; Rick Beauchamp,

Administrator-SLRD; Bob Purdy,

Fraser-Basin Council; Re: The

Britannia Mine Industrial Waste

Landfill Proposal

S

131 8/31/1999 B.C. Ministry of Energy

and Mines

Permit M-214 Approving Work

System and Reclamation Program

Issued Pursuant to Section 10 of the

Mines Act, R.S.B.C. 1996, c. 293

S

127 9/8/1999 B.C. Environment /

PR-15938

Ministry of Environment, Lands

and Parks Permit PR-15938 under

the provisions of the Waste

Management Act / Copper Beach

Estates Ltd. and Mt. Sheer Mine

Reclamation Inc. are authorized to

discharge refuse to the land at an

industrial landfill located

approximately seven kilometers

east of Britannia Beach, British

Columbia, subject to the conditions

listed below

S

128 9/8/1999 B.C. Environment /

OE-16097

Ministry of Environment, Lands

and Parks Remediation Order

OE-16097 issued under the Waste

Management Act to Tim Drummond, Copper Beach Estates Ltd.

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
192 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

126 10/1/1999 Robb, R.H., Assistant

Regional Waste Manager,

Lower Mainland Region,

Ministry of Environment,

Land and Parks, BC

Letter to R.A. Beauchamp,

Squamish-Lillooet Regional

District, Re: Remediation Order

OE-16097, Effluent Discharge

Permit PE-12840, Refuse Discharge

Permit PR-15938, issued 8

September 1999, as part of the

Britannia Mine Reclamation Project

proposed by Copper Beach Estates

Ltd.

S

132 12/14/1999 Hermann, F.W., Chief

Inspector of Mines, Mines

Branch, Energy and

Minerals Division,

Ministry of Energy and

Mines, BC

Letter to Alan Young, Executive

Director, Environmental Mining

Council of British Columbia and

attached “Proposed Exemption of

Mines from Part 4 of the Waste

Management Act” dated 14

December 1999

S

12 00/00/2000 Barry, Karen L., Jeffrey A.

Grout, Colin D. Levings,

Bruce H. Nidle, G.

Elizabeth Piercey

“Impacts of acid mine drainage on

juvenile salmonids in an estuary

near Britannia Beach in Howe

Sound, BC”

EC

16 00/00/2000 Marsden, A.D.,

Department of Botany,

UBC, R.E. DeWreede, DFO

Science, West Vancouver

“Marine macroalgal community

structure, metal content and

reproductive function near an

acid mine drainage outflow”

EC

17 00/00/2000 Varela, D.E., K.L. Barry,

M. Guo, G.E. Piercey,

N.M. Mehlenbacher, P.J.

Harrison, and C.D.

Levings, DFO Science,

West Vancouver

“Water Quality and Oceanographic

Data Near a Deep Water Outfall

Discharging Acid Mine Drainage

from Britannia Mine into Howe

Sound, British Columbia” –

Canadian Data Report of Fisheries

and Aquatic Sciences 1063

EC

129 1/7/2000 Robb, R.H., Assistant

Regional Waste Manager,

Ministry of Water, Land

and Air Protection, BC

Letter to Copper Beach Estates

Ltd., att: Mr. Tim Drummond,

Re: Remediation Order OE-16097

as Amended 7 January 2000,

under the Provisions of Section

27.1 of the Waste Management

Act – Britannia Mine Site

SEC

133 4/6/2000 Robb, R.H., Assistant

Regional Waste Manager,

Ministry of Water, Land

and Air Protection, BC

Letter to Ivaco/Arrowhead Metals

Ltd., Anaconda/Arco, Canzinco

Ltd., Copper Beach Estates Ltd.,

cc. Joyce Thayer, BC Ministry of

Attorney General, Mike Nassichuk,

Environment Canada, Ted Hall,

BC Ministry of Energy and Mines

SEC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 193

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

134 6/27/2000 Azevedo, Barry Email to Lisa Sumi along with

attached body of submissions of

Canzinco Ltd., excluding

appendices

BC

Ministry

of Water,

Land,

and Air

Protection

139 9/7/2000 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Anaconda/ARCO,

Canzinco Ltd., Copper Beach

Estates Ltd., Invaco/Arrowhead

Metals Ltd., Re: Britannia Mine

Remediation – Reclamation Order

OE-16097

SEC

140 9/7/2000 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Alcoa, Her Majesty the

Queen in Right of British

Columbia, Re: Britannia Mine

Remediation – Reclamation Order

OE-16097

SEC

135 10/4/2000 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Her Majesty the Queen in

Right of Canada, c/o Department

of Justice att: Michelle Ball, re:

Britannia Mine Remediation –

Remediation Order 16097

SEC

138 10/4/2000 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Government of British

Columbia, Her Majesty the Queen

in Right of Canada, Anaconda/

ARCO, Ivaco/Arrowhead Metals

Ltd., Alcoa, Intalco Aluminum

Corporation, Alumax Inc.,

Howmet Holdings Corporation,

Canzinco Ltd., Re: Britannia

Mine Remediation,

SEC

136 12/19/2000 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Government of British

Columbia, Her Majesty the Queen

in Right of Canada, Anaconda/

ARCO, Ivaco/Arrowhead Metals

Ltd., Alcoa, Intalco Aluminum

Corporation, Alumax Inc.,

Howmet Holdings Corporation,

Canzinco Ltd., Re: Britannia

Mine Remediation, Remediation

Order OE-16907

SEC

10 00/00/2001 Piercey, G.E., C.D.

Levings, J.A. Grout, DFO

Science, West Vancouver

“Metal Analyses from Water

Samples Collected Near Britannia

Mine and in Howe Sound, British

Columbia, 1997 and 1998” –

Canadian Data Report of Fisheries

and Aquatic Sciences 1082

EC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
194 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

13 00/00/2001 Grout, J.A. , C.D. Levings,

DFO Science, West

Vancouver

“Effects of acid mine drainage

from an abandoned copper mine,

Britannia Mines, Howe Sound,

British Columbia, Canada, on

transplanted blue mussels

(Mytilus edulis)

EC

137 1/10/2001 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Government of British

Columbia, Her Majesty the Queen

in Right of Canada, Anaconda/

ARCO, Ivaco/Arrowhead Metals

Ltd., Alcoa, Intalco Aluminum

Corporation, Alumax Inc.,

Howmet Holdings Corporation,

Canzinco Ltd., Re: Britannia

Mine Remediation,

SEC

4 2/15/2001 Knight Piesold Ltd. “Environment Canada / Britannia

Beach Mine / Review of Effluent

Treatment Costs / Ref. No.

11846/1-1”

EC

35 03/00/2001 Friends of the Earth “Primary Environmental Care –

An Assessment of Environment

Canada’s Delivery; Volume II:

Ten Year Record of Environmental

Prosecutions 1989-1999”

SEC

5 3/2/2001 Hagen, Mike, Pollution

Prevention and

Assessment, EC

“Britannia Marine Sediment

Contamination: Interim Status of

Knowledge and Next Options”

EC

141 3/27/2001 Falzon, Frank A.V.,

Barrister and Solicitor

Letter to Lovett & Wetmacott

Re: Britannia Mine Remediation

SEC

144 4/3/2001 BC Environment Memorandum of Agreement made

the 3rd day of April, 2001, between

Her Majesty the Queen in Right of

the Province of British Columbia,

represented by The Minister of

Environment, Parks and Lands

and Copper Beach Estates Ltd.

BC

Ministry

of Water,

Land,

and Air

Protection

21 4/12/2001 Government of BC “Britannia Mine Cleanup

Agreement Anounced” – News

release no. 330-30: ELP2001-150

issued by MELP and MEM

EC

22 4/12/2001 Government of BC “Britannia Clean-Up Agreement” –

Backgrounder issued by MELP

EC

23 4/12/2001 Government of BC “Treatment for Acid Rock Mine

Drainage at Britannia” –

Backgrounder issued by MELP

EC

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 195

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

145 4/12/2001 BC Environment Settlement Agreement EC

142 4/25/2001 Driedger, Ron J., Deputy

Director of Waste

Management, Ministry of

Water, Land and Air

Protection, BC

Letter to Anaconda/ARCO,

Canzinco Ltd., Copper Beach

Estates Ltd., Invaco/Arrowhead

Metals Ltd., Government of British

Columbia, Alcoa, Intalco

Aluminum Corporation, Alumax

Inc., Howmet Holdings

Corporation, Her Majesty the

Queen in Right of Canada, Re:

Britannia Mine Site Remediation

SEC

6 08/00/2001 McCandless, Robert G., EC “The Britannia Mines Problem:

Rocks, Architecture and Footprint”

EC

7 9/14/2001 Coastal and Ocean

Resources Inc. &

Archipelago Marine

Research Ltd.

“Seabed Reconnaissance for

Substrate and Habitat Mapping at

Britannia Beach, British Columbia”

– Report prepared for EC,

Industrial Programs, North

Vancouver, B.C., CORI Project:

2001-31

EC

146 11/16/2001 Thayer, Joyce, Barrister &

Solicitor, Legal Services

Branch, Ministry of

Attorney General, BC

Letter to Walker & Company,

Copper Beach Estates Ltd., Kambas

Galbraith, Re: “Memorandum of

Agreement dated 28 February 2001

(the “MOA” between Copper

Beach Estates Ltd. (“CBEL”)

and the Province

BC

Ministry

of Water,

Land,

and Air

Protection

3 12/14/2001 O’Hara, Gerry, Golder

Associates Ltd.

Work Plan for the Britannia Mine

Remediation Project submitted to

MWLAP, Pollution Prevention and

Remediation Branch

EC

155 01/00/2002 n/a “Britannia Mine – recent observed

flows and concentrations to

January 2001”

EC

26 02/00/2002 Hagen, Mike, Pollution

Prevention and

Assessment, EC

“List of Howe Sound and Britannia

Beach Subtidal Marine Sediment

Reports” Note to File

4484-37/C1235, EC

EC

8 2/5/2002 Bornhold, Brian D.,

Coastal and Ocean

Resources Inc.

“Interpretation of Sidescan

Sonographs, Britannia Beach,

British Columbia” prepared for

Geological Survey of Canada

Pacific

EC

1 2/8/2002 Johnson, Terry Fax response to information

request

BC

Museum

of Mining

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
196 FACTUAL RECORD: BC MINING SUBMISSION

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

9 2/13/2002 Kus, John, CH2MHill Memo to Gerry O’Hara (Golder) re

Britannia – Inspection of Marine

Outfall Pipe

SEC

2 03/00/2002 EC “Facts on the Britannia Mine” EC

24 03/00/2002 n/a “A Short Chronology of

Enforcement and Monitoring at the

Britannia Mine Site” – 1905-2002

EC

25 03/00/2002 n/a “Environment Canada’s

expenditures: Britannia

monitoring, engineering 1992-2001”

EC

11 n/a Levings, C.D., DFO

Oceans Directorate

“Effect of an Abandoned Mine

on the Nearshore Ecosystem,

Britannia Beach”

EC

28 n/a CCME “Statement of Interjurisdictional

Cooperation on Environmental

Matters”

SEC

54 n/d Bossons, D.R., Commercial

Development Manager,

Bank of Montreal

Letter to Director of Pollution

Control, Parliament Buildings,

Victoria, re financial condition of

Copper Beach Estates Ltd.

S

77 n/d Sihota, Moe, Ministry of

Environment, Lands and

Parks, BC

Draft Treasury Board Submission

requesting approval for an amount

of $537,500 to be used along with

an equal amount provided by the

federal government under the

federal-provincial orphan sites

agreement, to develop solutions

and lessen the impact of the

ongoing acid mine drainage

pollution at Britannia Beach, BC.

References 9/26/94 decision note

approving government

intervention

S

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada
APPENDIX 7 197

AUTHOR

No. MM/DD/YY (Last Name, Name) DOCUMENT SENDER

150 n/d n/a Page 2 of an e-mail stating “Dennis

also noted that s. 42 provides a

defense against liability for costs in

cases where the occurrence was

caused by a natural phenomenon

of an exceptional, inevitable and

irresistable character, which Dennis

feels applies to AMD. I suggested

that AMD is not inevitable, since

there didn’t have to be a mine. He

felt that CBE’s defense would be

that the mine has been there for

years, they didn’t put it there, and

ever since the mine was established

the AMD became inevitable. [...]

In addition, s. 42 liability is based

on fault and does not attach to the

title.”

S

143 n/d Canada “Submissions of the Federal

Crown in Response to the ARCO

submission dated March 22, 2001”

(Doc. No. 369081)

EC

156 n/d n/a Map showing claims owned by

Copper Beach Estates Ltd.

Copper

Beach

Estates

Ltd.

LEGEND

BC: British Columbia S: Submitters

CCME: Canadian Council of Ministers of the Environment SEC: Secretariat

EC: Environment Canada

APPENDIX 8

Timeline

Timeline*

APPENDIX 8 201

Actions of Canada Actions of Mine Owners & BC

1904 Mine begins operating; acid rock drainage

(ARD) and tailings are discharged to

Britannia Creek and Howe Sound

Federal Crown enters into

wartime commercial supply

agreement with mine owners

194?

1974 Mine closes down; ARD continues

discharging to Britannia Creek and Howe

Sound from 2200- and 4100-level portals

(see Figure 3)

BC Environment orders Anaconda Canada

Ltd. (“Anaconda”) to “collect mine water

and direct it to the 4100-level portal and

thence to Howe Sound at depth, after

appropriate treatment (i.e., Cu removal)”

Environment Canada (EC)

meets with BC Environment

regarding Anaconda’s plans

to implement 1974 BC order

1977 BC Environment orders Anaconda to

channel all mine effluent to the 4100-level

portal, run it through a copper

cementation plant and discharge it to

Howe Sound at depth

1979 Copper Beach Estates Ltd. (CBE) exercises

an option to purchase all the Britannia

Mine lands from Anaconda for $5M; the

same day, CBE sells a small parcel of

shorefront Britannia land to Dome

Petroleum for $6.5M

1981 BC Environment orders CBE to channel all

mine effluent to the 4100-level portal, run

it through a copper cementation plant

and discharge it to Howe Sound at depth;

no requirement to meet effluent standards

1980s Effluent begins spilling out of 2200-level

portal, contaminating Britannia Creek

* This timeline is provided for ease of reference only. A complete description of information gathered by the Secretariat regarding Canada’s actions to enforce and promote compliance with s. 36(3) of the Fisheries Act at the Britannia Mine is provided in

s. 5 of the factual record.
202 FACTUAL RECORD: BC MINING SUBMISSION

1990 Control of CBE is sold to a numbered

company for approximately $21M;

concurrently, CBE sells development

property at Furry Creek to third parties for

$17M and obtains a $5.8M advance toward

a potential sale of development property at

Britannia Beach

1991 Court order for sale of the Britannia lands

resulting from CBE’s failure to repay a

$5.8M advance on a potential sale of

development property at Britannia Beach

that fell through after environmental due

diligence

Flood at Britannia Beach causes damage to

submerged effluent outfall; 1981

remediation order cannot be used to order

CBE to repair outfall, so BC Environment

removes outfall (replaces it in 1993–94)

1993 BC Environment issues additional order

against CBE, requiring submission of

financial statements and a plan to collect

and treat mine effluent; no requirement to

meet effluent standards

BC Waste Management Act (WMA)

amended to add joint, several and

retroactive liability for contaminated sites;

provisions come into effect in 1997

Canada’s Obligations under

NAAEC take effect 1 January

1994 Court appoints Coopers & Lybrand as

receiver-manager of Britannia assets;

receiver-manager given immunity from

liability for environmental matters under

provincial legislation; CBE insolvent

Under National Contaminated

Sites Remediation Program

(NCSRP), Canada and BC

agree to spend $2M each on

solving Britannia effluent

problem

BC Mines hesitates to approve use of Mines

Act to recover federal and provincial

clean-up costs at Britannia; refers matter to

BC Treasury Board; delays cause NCSRP

funding for Britannia to lapse
APPENDIX 8 203

EC agrees with staged

approach to achieving

compliance; studies pipeline

option to remove pollution

from Britannia Creek

1995 Potential purchaser proposes staged

approach to achieving compliance,

beginning with a surface pipeline to carry

ARD from 2200- to 4100-level for discharge

through submerged outfall

Fisheries and Oceans Canada

(DFO) begins three-year study

into effects of Britannia effluent

on marine environment

1997 1993 WMA amendments and

Contaminated Sites Regulation take effect;

province can add past owner/operators to

remediation order

EC provides comments on CBE

soil relocation proposal; notes

that cementation operation

mentioned in 1981 order does

nothing to improve water

quality

CBE proposes to raise money to comply

with 1981 order by taking delivery of

contaminated soils onsite as part of a

“reclamation” plan; applies for Mines Act

reclamation permit

EC invites BC Mines to

Britannia steering committee

meeting

BC Mines releases proposal to remove sites

with Mines Act reclamation permits (such

as Britannia) from purview of WMA

(enacted in 2002 WMA amendments)

Consultant working for EC

with involvement by BC

Environment issues report

identifying high density lime

sludge process as best

technology for treating

Britannia effluent

1998 Under the WMA, BC Environment names

parent companies of former mine owners

as potentially responsible persons (PRPs)

in connection with pollution at Britannia

EC and DFO participate in

public consultations and

provide detailed comments on

a draft provincial remediation

order, effluent permit, landfill

permit, and Mines Act

reclamation permit

1999

BC Environment issues effluent and

landfill permits to CBE, and a remediation

order (replacing 1981 and 1993 orders)

that requires use of effluent treatment

technology identified by EC consultant

in 1998. Effluent permit lists effluent

standards
204 FACTUAL RECORD: BC MINING SUBMISSION

Financing for landfill project falls through

and CBE defaults on remediation order;

effluent permit lapses

EC lends technical assistance

to province in PRP process for

Britannia; Provincial Regulator

subsequently names Federal

Crown as a PRP because of

WWII supply contract with

the mine

2000 BC Environment is named a PRP in

connection with Britannia because of

removal of submerged outfall in 1991; to

avoid conflict of interest, entity is split into

“Regulator” and “Province-as-PRP”

EC files submissions with

BC Regulator denying that

wartime supply agreement

makes it a PRP and stating that

the Federal Crown is not

subject to the WMA

2001

EC involved in negotiation

of settlement agreement with

private PRPs; does not sign

agreement but agrees to carry

out sediment investigations

offshore at Britannia

Province-as-PRP signs settlement agreement (not binding on Regulator) with

private PRPs, releasing them from all

Britannia environmental liabilities in

exchange for $30M; Province-as-PRP

undertakes to take over site investigation

and remediation

EC endorses application by

Squamish-Lillooet Regional

District to Canada-BC

Infrastructure Program for

$3M in federal funds toward

construction of an effluent

treatment plant at Britannia

(no decision on application

as at October 2002)

Province-as-PRP signs memorandum

of agreement with CBE. CBE agrees to

operate a treatment plant at Britannia in

perpetuity using revenue from future

Britannia real estate development

New principal of CBE repudiates

memorandum of agreement with

Province-as-PRP

CBE plugs 2200-level portal, stopping

discharge of ARD to Britannia Creek

EC conducts sediment investigation in intertidal zone at

Britannia Beach (no information

regarding who will pay for any

recommended sediment

remediation)

2002 Amendments to WMA likely prevent

Regulator from holding private PRPs

responsible for shortfalls in remediation

funding for Britannia because of indemnity

in settlement agreement; amendments

remove sites with Mines Act reclamation

permits from purview of WMA

2004 Expected start-up of effluent treatment

plant under remediation program headed

by Province-as-PRP
APPENDIX 9

Acronyms and Defined Terms

Acronyms

ARD acid rock drainage

ARCO Atlantic Richfield Company

BC British Columbia

BMARC Britannia Mines and Reclamation Corp. (see also CBE)

CBE Copper Beach Estates Ltd. (BMARC since May 2002)

CCME Canadian Council of Ministers of the Environment

CEC Commission for Environmental Cooperation

CEPA Canadian Environmental Protection Act

CESD Commissioner for the Environment and Sustainable

Development (Canada)

CSR Contaminated Sites Regulation adopted under the WMA

DFO Fisheries and Oceans Canada

EC Environment Canada

EIG Environment Issue Group of the WMI

HDS high-density sludge

IIED International Institute for Environment and Development

LMMDRC Lower Mainland Mine Development Review Committee

(BC Mines)

MMER (2002) Metal Mining Effluent Regulations adopted under the

Fisheries Act (Canada)

MMLER (1977) Metal Mining Liquid Effluent Regulations adopted under

the Fisheries Act (Canada)

MMSD Mining, Minerals and Sustainable Development initiative of

the WBCSD

MOA 3 April 2001 Memorandum of Agreement signed by CBE

and Province-as-PRP

MWLAP Ministry of Water, Land and Air Protection (BC)

NCSRP National Contaminated Sites Remediation Program (Canada)

PRP Potentially Responsible Person under the WMA

WBCSD World Business Council on Sustainable Development

WMA Waste Management Act (BC)

WMI Whitehorse Mining Initiative

APPENDIX 9 207
Defined Terms

Anaconda Term used to describe subsidiaries of the

Anaconda Mining Company that have owned

the Britannia Mine in the past

BC Environment Term used to describe environment ministry of

BC Government

BC Mines Term used to describe BC government mining

ministry

Bill 26 Waste Management Amendment Act, given royal

assent 18 June 1993

CanZinco CanZinco Ltd.

CanZinco Submission Submission filed by CanZinco with BC

Environment under WMA PRP process

Compliance and Fisheries Act Habitat Protection and Pollution

Enforcement Policy Prevention Provisions Compliance and

Enforcement Policy adopted by DFO and EC

in 2001 but in use, in draft form, since at

least 1998

Decision to Prosecute Chapter 15 of Part V (“Proceedings at Trial and

on Appeal”) of the Federal Prosecution Service

Deskbook, Justice Canada, 2000

Deputy Director Deputy Director of Waste Management of

BC Environment (see also Regulator)

Facts on the Britannia Mine Memorandum, dated March 2002, submitted

to the Secretariat by EC in response to the

Secretariat’s February 2002 Information

Request

Harmonization Accord Canada-Wide Accord on Environmental

Harmonization signed January 1998 by federal

and provincial ministers of environment,

except Quebec

Minerals and Metals Policy The Minerals and Metals Policy of the

Government of Canada

Option Option to Purchase the Britannia Mine, signed

by CBE and Anaconda on 20 June 1979

P3 Public-Private Partnership announced by

BC Government on 12 April 2001

Province-as-PRP BC Environment in its capacity as a person

liable for cleaning up pollution at Britannia

under the WMA

208 FACTUAL RECORD: BC MINING SUBMISSION
Regulator BC Environment in its capacity as government

authority responsible for enforcing the WMA

(see also Deputy Director)

Secretariat Secretariat of the CEC

Settlement Agreement 12 April 2001 agreement between

Province-as-PRP and private PRPs regarding

environmental clean-up at Britannia

Statement 1990 Statement on Interjurisdictional

Cooperation on Environmental Matters

adopted by the CCME

Status Report September 2002 report on progress of

federal/provincial plan for a large-scale

program for rehabilitating orphaned and

abandoned mine sites in Canada

Sub-Agreement Sub-Agreement on Inspections and

Enforcement under Harmonization Accord,

endorsed by CCME Council 1 May 2001

Submitters’ Reply Reply of Submitters to Canada’s Response to

the Submission

Tanac Tanac Development Canada Corp.

Taurus No. 357 Taurus Ventures Ltd.

1995 Government Response The Government Response to the Fifth Report

of the Standing Committee on Natural

Resources (“Lifting Canadian Mining Off the

Rocks”)

1998 Government Response The Government Response to the Third Report

of the Standing Committee on Environment

and Sustainable Development (“Enforcing

Canada’s Pollution Laws: The Public Interest

Must Come First!”)

40091 40091 British Columbia Ltd.

2200-level See Figure 3

4100-level See Figure 3

APPENDIX 9 209

ATTACHMENT 1

Council Resolution 03-14

7 August 2003

COUNCIL RESOLUTION 03-14

Instruction to the Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record for Submission

SEM-98-004 (BC Mining)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of the

North American Agreement on Environmental Cooperation (NAAEC) regarding submissions on enforcement matters and the preparation of factual

records;

HAVING RECEIVED the final factual record for Submission

SEM-98-004;

NOTING that pursuant to Article 15(7) of the NAAEC, the Council is

called upon to decide whether to make the factual record publicly

available; and

AFFIRMING its commitment to a timely and transparent process;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record for

Submission SEM-98-004; and

TO ATTACH to the final factual record comments provided by the

Parties to the Secretariat on the draft factual record.

APPROVED BY THE COUNCIL:

____________________________________

Judith E. Ayres

Government of the United States of America

____________________________________

Olga Ojeda Cárdenas

Government of the United Mexican States

____________________________________

Norine Smith

Government of Canada

COUNCIL RESOLUTION 03-14 213

ATTACHMENT 2

Comments of Canada

Ottawa ON K1A 0H3

14 May 2003

Mr. Victor Shantora

Acting Executive Director

Secretariat

Commission for Environmental Cooperation

393 St. Jacques Street West, Suite 200

Montréal QC H2Y 1N9

Dear Mr. Shantora:

Further to Article 15(5) of the North American Agreement on Environmental

Cooperation (NAAEC), the Canadian government has reviewed the draft

Factual Record in relation to Submission on Enforcement Matters 98-004

(the “BC Mining” submission) with great interest.

In order to assist the Secretariat in the development of the final Factual

Record for this submission, I would like to provide Canada’s comments,

which you will find enclosed.

Canada appreciates the Secretariat’s thoroughness in preparing the

draft Factual Record for this submission. As you know, Canada is of the

view that the purpose of a Factual Record is for the Secretariat to prepare

an objective, independent presentation of the facts to allow the reader of

the Factual Record to draw their own conclusions with respect to the

alleged failure of a Party to effectively enforce its environmental law.

In addition to the enclosed comments, I would like to note the following

issues which, in Canada’s view, affect the objectivity of the document

and therefore may influence the views of the public in an inappropriate

way.

• Throughout the entire draft Factual Record, the Secretariat uses language that states that s. 36(3) of the Fisheries Act has been violated

(e.g., section 1, paragraph 5, sentence 2 “Despite ongoing violations of

s. 36(3) at the Britannia Mine [...]”). In our view, such a conclusion is

inappropriate as there is only an alleged violation of s. 36(3) of the Fisheries Act. Violations can only be established by a court following a

successful prosecution. As such, we request that the Secretariat use

the words “potential”, “alleged” or “suspected” prior to the word

“violation(s)” throughout the entire document.

• Canada recognizes the Secretariat’s authority to retain an independent expert in the preparation of a Factual Record, as needed. However, Canada considers the mandate given to the expert on Acid Rock

COMMENTS OF CANADA 217
Drainage (ARD) treatment, which is, as stated on page 4 “[...] to consider the effectiveness of the current provincial remediation program in

achieving compliance with s. 36(3) at the Britannia Mine in the shortest possible time and with no further occurrence of violations, as provided by the Fisheries Act Compliance and Enforcement Policy.” to go

well beyond the scope and purpose of a Factual Record. It is Canada’s

view that independent experts should not be drawing conclusions, or

passing judgement on the actions taken by a Party. For example, the

expert should not be assessing the effectiveness of the provincial

remediation program nor should the expert pass judgement on the

timing of the treatment plant project. Therefore, we request that the

Secretariat review the information that has been attributed to the

ARD expert, and remove any and all judgements, conclusions and/or

opinions since they go beyond a compilation of facts.

• Regarding Canada’s co-operation in the development of this Factual

Record, the Secretariat appears to suggest, on pages 80-81, 101, and

103 for example, that Canada has not been forthcoming, open or fully

co-operative in providing information to the Secretariat. This is of

concern, as Canada has fully disclosed all requested and available

information in as timely a manner as possible. We request that the

Secretariat review the above-noted pages to remove any unintentional negativity with respect to how Canada conducted itself in providing information for this Factual Record. Canada welcomes a

meeting with the Secretariat to discuss how Canada might better help

the Secretariat in obtaining information for the preparation of Factual

Records.

In order to facilitate our review of the final Factual Record and increase

the timeliness of making a decision on publication, it would be appreciated if the Secretariat could provide Canada with an electronic version of

the final Factual Record in “revision mode”.

Canada notes that, as a matter of procedure, comments of a Party are not

to be made public unless and until Council votes to make the final Factual Record publicly available pursuant to Article 15(7) of the NAAEC.

Yours sincerely,

Norine Smith

Assistant Deputy Minister

Policy and Communications

c.c.: Ms. Judith E. Ayres

Ms. Olga Ojeda

Mr. Geoffrey Garver

218 FACTUAL RECORD: BC MINING SUBMISSION
CANADA’S COMMENTS ON THE DRAFT FACTUAL RECORD

FOR SEM-98-004 (BC MINING)

14 MAY 2003

General Comments

Canada would like to inform the Secretariat that the Compliance and

Enforcement Policy referenced in the draft Factual Record (e.g. Section 3,

Summary of Canada’s response, p. 7, etc.) is no longer a draft but is now

final. We have attached the document for your convenience.

With regards to section 4 entitled “Scope of the Factual Record”, Canada

considers the discussions surrounding the Secretariat’s view of the

Council’s instruction regarding the scope of the Factual Record to be

unnecessarily long. This information is already known by the public

given the fact that the Secretariat’s determination and the Council Resolution are posted on the CEC website. Therefore, we suggest that the

Secretariat limit this discussion to the information that will be the subject

of the Factual Record. We also request that the Secretariat include the

reasons why Council voted to limit the scope of the Factual Record, and

we also suggest that reference be made to Article 14(3)(a) of the NAAEC.

By doing so, context and meaning will be provided to the reader who

would otherwise be uninformed as to the reasons why the Council limited the scope of the Factual Record. This additional information should

be included after the end of the first sentence of paragraph 5 which

begins with: “In addition, in Council Resolution 01-11, [...]”

The draft Factual Record suggests that the Crown does not have to prove

that Acid Rock Drainage (ARD) is deleterious and does not have to

prove that the deposit caused harm to fish (e.g. section 5.2.3.2 entitled

“Prosecution”). This is inaccurate. The Crown would still have to prove

failure of an LC50 (acute lethality test) or demonstrate that other constituents of the effluent are deleterious as defined in the Fisheries Act. The

proof of damage to fish in the environment would be used to influence

the size of the penalty when considering a sentence.

In order for the public to understand why the option for Environment

Canada to prosecute for alleged violations of s. 36(3) at Britannia, is not

and has not been a viable option, we request that the following explanation be added in section 1, paragraph 10, and subsequently reflected

when this issue is discussed in section 5.2.3.2, paragraph 6 and in section

5.3.2, paragraph 2:

COMMENTS OF CANADA 219
“Environment Canada asserts that until 1991, a contravention of subsection 36(3) was a summary conviction offence (misdemeanour) under the

Fisheries Act that was required to be prosecuted within two years of the

occurrence of the offence (i.e. the deposit of substances deleterious to fish).

The pollution problem at the Britannia Mine began in 1906 and continued

throughout operation of the mine, which ended in 1974, to the present day.

Over those years, the mine site has been owned and operated by a number

of different mining companies. These factors made it very difficult for

Environment Canada investigators to determine whether the pollution

they were targeting had occurred within the two year limitation period for

prosecuting an offence under s. 36 (3), and to identify which company was

responsible for causing the pollution. The requirement for the Crown to

prove, beyond a reasonable doubt, all elements of a charge under the Fisheries Act made it very unlikely that a prosecution would have been successful.

As a result of a substantive amendment to the Fisheries Act in 1991, a violation of section 36(3) became a hybrid offence which could be prosecuted by

summary conviction (misdemeanour) or by way of indictment (felony),

and the two year limitation period for prosecuting offences was dropped.

This amendment, however, did not have retrospective application. This

means that no person could be prosecuted after 1991 for a violation of s.36

(3) which occurred before 1991. Because the substances causing the pollution were deposited by the mining companies before 1991, these companies could not be prosecuted under the Fisheries Act after it was amended

in 1991.

Regarding sections 5.4 through 6 of the draft Factual Record, we commend the Secretariat for the quality of the work in setting out a detailed

recording of the facts.

Specific Comments

Section 1 Executive Summary

Paragraph 4: The opening sentence is inaccurate and should read:

“Regulations adopted in 1977, and updated in 2002, under s. 36(4) of the

Fisheries Act[...]”. The following underlined text should also be included

at the end of the paragraph: “All that is required to establish a violation

of s. 36(3) is proof that a deleterious substance like ARD is discharging

deposited into water frequented by fish. Violations can only be established by a court following a successful prosecution.

Paragraph 5: In order to accurately reflect the activities undertaken by

Environment Canada, the following sentence should be included at the

220 FACTUAL RECORD: BC MINING SUBMISSION
end of the paragraph: “Environment Canada has maintained numerous

other files related to compliance promotion activities including the technical review of proposed treatment and site-remediation options.”

Paragraph 8: For clarity, we suggest that the second sentence include the

following underlined text: A federal/provincial program for the remediation of orphaned/abandoned contaminated sites in Canada ended in

1995.

Paragraph 11: We request the Secretariat delete the first two sentences of

the paragraph given the more fulsome explanation provided above in

the general comments.

Paragraph 11: Environment Canada maintains that a successful prosecution would not stop the pollution of Howe Sound. As such, the Secretariat should add the following underlined text to clarify this point: In

light of the fact that the present owner of the mine is insolvent and therefore lacks the means to implement any court-ordered remediation, a successful prosecution would not stop the pollution of Howe Sound.

Paragraph 12: In order to correctly reflect the interaction between CBE

and both the provincial and federal governments, the following modifications to this paragraph should be made:

“CBE has been insolvent since 1994 and there is a court order for sale of the

Britannia lands. Since 1997, CBE has advanced and received considerable

federal and provincial government technical assistance with several

“reclamation/remediation” proposals aimed at financing site remediation through redevelopment of the Britannia site, none of which have

materialized. The technical aspects of these proposals were evaluated by

federal and provincial agencies in advance of the drafting of Waste Management Act permits. [...]”

Paragraph 13: Canada would like to clarify the following point: Environment Canada and BC Environment jointly funded $130K for effluent

monitoring at the site. As such, we suggest that this passage read as follows:

“To promote compliance with s. 36(3) at the Britannia Mine, in 1994–95,

Environment Canada and BC Environment attempted to obtain financing

for research into environmental impacts from, and treatment methods for,

Britannia effluent through the National Contaminated Sites Remediation

Program. Several millions of dollars in funding was allocated but lapsed.

(Is the Secretariat suggesting that several millions of dollars in funding

was allocated to the orphaned contaminated sites in B.C. but lapsed; or to

COMMENTS OF CANADA 221
the Britannia Mine specifically?) Beginning in 1995, Environment Canada

and BC Environment jointly funded $130K for effluent monitoring at the

site.

Paragraph 14: Since prosecution was not viable, the focus became remediation of the site. In order to reflect this, we request the Secretariat

replace the following text: “enforce the requirements of s. 36(3) and provincial laws at Britannia” and replace it with the following underlined

text “To facilitate the remediation of the Britannia mine site [...]”

Paragraph 14: Regarding the Federal Crown’s participation in the Settlement Agreement, the following stricken text should be deleted and

the underlined text should be added to ensure accuracy:

“The Federal Crown participated in negotiating the Settlement Agreement but did not sign it. At the outcome During the course of these negotiations as part of Environment Canada’s on-going cooperative efforts

with BC to facilitate site remediation, Environment Canada agreed made a

verbal agreementto conduct offshore sediment investigations at Britannia

and provide technical reviews of remediation works including the waste

water treatment plant.”

Paragraph 15: Canada would like to inform the Secretariat that the Federal requirements, as outlined in the 1999 Waste Management Act permit

(as explained in footnote 136) indicate that the effluent requirements for

this site will be consistent with the limits set in the MMER and include a

requirement for non-acutely lethal effluent. This position was restated

in recent correspondence (please see attached letter dated March 2003

from EC to WLAP). As such we request that the above underlined text

be included before the last sentence of the paragraph.

The last sentence of this paragraph is inaccurate. The federal position on

effluent quality is not “risk-based”. Footnote 136 explains the approach

taken by EC regarding effluent quality. As such, the characteristics of

treated Britannia effluent must be consistent with the MMER including

the requirement for non-lethality. Consequently, we request that the last

sentence be changed to better reflect the information in the footnote.

Section 3 Summary of Canada’s response

Paragraph 2: Canada would like to inform the Secretariat that the plan in

question added over $40 million to the enforcement program, increasing

our number of enforcement officers and operating funds base. As such,

we would like this that this information be included.

222 FACTUAL RECORD: BC MINING SUBMISSION
Paragraph 9: We ask that the following underlined text be included:

Canada acknowledges that there are ongoing discharges of acutely

lethal effluent in potential violation of s.36(3) at the Britannia, Tulsequah

Chief and Mt. Washington mines [...].

Paragraph 9: To ensure accuracy, the Secretariat should remove the following stricken text and add the underlined text in order to clearly illustrate the actions that were taken:

“At Tulsequah Chief, Canada issued a Warning and conducted follow-up

inspections. As a result of continued discharge of ARD, an Inspector’s

Direction was issued in July 2002 to cease the deposit of ARD by September 30, 2003. At Mt. Washington, Canada collected effluent samples and

wrote a issued Inspector’s Directions to those letter to four persons with

ownership or other interests in the property, advising them that the

effluent violated s. 36(3) of the Fisheries Act and requiring the deposit to

cease by November 30, 2003.”

Section 5.2.2 s. 36(3) and Mining

Paragraph 1: In order to accurately reflect the current status, the Secretariat should change the first sentence to include the following modifications: “Operating and closed often mines can generate effluent that can

may violate s. 36(3) of the Fisheries Act.

Paragraph 4: An important clarification needs to be made regarding the

last sentence. We ask that the sentence read: “However, mines that closed before June 6, 2002 1977, including thousands of so-called “abandoned mines” such as Britannia, are not covered by the MMER.”

Paragraph 5: To clarify this paragraph the Secretariat should remove the

stricken text and add the following underlined text:

“In the absence of standards set out in regulations Mines and other discharges not subject to Fisheries Act regulations, (e.g. effluent from mines

such as Britannia) are is covered by subject to the subject to the “general

prohibition” against depositing deleterious substances into water frequented by fish found in s. 36(3). At these mines, an acute lethality test is

routinely used as but one to measure of compliance with s. 36(3). This test

involves exposing rainbow trout to undiluted effluent for ninety-six

hours. A mortality rate of fifty percent or more means the effluent is acutely lethal to fish and has been considered by the courts to be an indication

of the presence of deleterious substances for the purposes of the Fisheries

Act. Under the Fisheries Act, discharging or permitting the discharge of a

deleterious substance into water frequented by fish is a potential violation

COMMENTS OF CANADA 223
of s. 36(3) and an offense pursuant to s. 40. Violations are proven and decided by the courts.

Section 5.2.3 Responses to alleged violations of s. 36(3) provided

for under the Fisheries Act

Paragraph 1: To ensure accuracy, the Secretariat should include the following underlined text to the first sentence to include the appropriate

terminology:

“The Compliance and Enforcement Policy for the Habitat Protection and

Pollution Prevention Provisions of the Fisheries Act lists a range of potential responses to alleged or apprehended violations of s. 36(3), including

Inspector’s Directions, information requests and orders from the Minister

of Fisheries and Oceans of Canada [...]”

Section 5.2.3.2 Prosecutions

Paragraph 1: For clarity, the Secretariat should include the following

underlined language to replace the stricken language:

“Another potential response to an alleged violation of s. 36(3) is to initiate

a prosecution against the a namedperson responsible for the alleged violation. To succeed in a prosecution, the Crown must be able to prove beyond

a reasonable doubt that the a person named “deposited” or “permitted the

deposit of” a “deleterious substance” into or near “water frequented by

fish.”

Paragraph 2: The Secretariat should add the following underlined sentence at the end of the paragraph to ensure that the public be aware that a

potential violation may also occur if deposited into waters which may

enter waters frequented by fish: “Deposit of a deleterious substance may

also be a potential violation if deposited into waters which may enter

waters frequented by fish.”

Paragraph 5: The following underlined text should be added for clarity:

“Canada has stated that prosecution for a violation of under s. 36(3) is

not, and has not been, a viable option for addressing the pollution problem at the Britannia Mine.

Paragraph 6: Regarding the first three sentences, it is important for the

Secretariat to include that, in addition to mine tailings, ARD effluent was

also deposited.

224 FACTUAL RECORD: BC MINING SUBMISSION
Section 5.3.2 The Decision to Prosecute

Regarding the last paragraph of this section, Canada requests that the

following changes be made in order to explain why Canada did not provide additional information on the matter discussed:

“Canada has stated that at one time, Environment Canada considered

inquired into the possibility of bringing an action in public nuisance

against the current owners of the Britannia Mine, but that the Department

of Justice “did not recommend this course of action.” Canada provided no

additional information on this matter As a matter of course, legal advice

provided by the Department of Justice to other federal government

departments is not released outside the federal government. However, in

this case as noted earlier, Canada was of the view that the federal Crown

had no standing to bring such an action.

Section 5.3.3 Streamlining Environmental Protection

It is important to note that the referenced relationship with British

Columbia is incorrect. There has been an informal “one-window”

approach with BC whereby federal regulatory requirements and fishery

resource information are conveyed to BC for its consideration within the

provincial effluent permitting system. While the regulated community

does deal with provincial officials on matters related to provincial legislation, policies and procedures it also deals with federal (EC) officials on

federal regulatory and policy matters. The federal government is directly responsible for all matters pertaining to enforcement of federal environmental laws and regulations. As such, we request that this section

reflect these points.

Section 5.3.3.1 Federal-Provincial Harmonization

Paragraph 3: The last sentence of this paragraph indicates that no agreement exists with BC. This is inaccurate. In September 1994 a federal (EC

and DFO) BC “Agreement on the Administration of Federal and Provincial Legislation for the Control of Liquid Effluents from Pulp and Paper

Mills in the Province of British Columbia” came into force. This agreement expired in 1996 and was not renewed because both the Province

and the Federal governments decided to pursue other compliance priorities pursuant to their respective environmental legislation. As such,

the last sentence should read: No such agreement is presently in force for

British Columbia, although the Canada- BC Pulp and Paper Effluent Agreement was followed between 1994-1996.

COMMENTS OF CANADA 225
Paragraph 7: To ensure accuracy, the third sentence should conclude

with the underlined text and read : “Under the WMA, the province has

discretion in determining appropriate effluent standards for Britannia

based on impacts of Britannia effluent to the receiving environment,

although there must also be compliance with federal statutes like the Fisheries Act.

Paragraph 15: It would appear that this paragraph is not relevant and

we suggest that it be stricken given our earlier comment on Canada-BC

PPER agreement.

Paragraph 17: This paragraph states that the report to Parliament

“makes no mention of EC activities at Britannia”. This annual report

was prepared by Fisheries and Oceans Canada, not Environment

Canada. By their very nature, these annual reports are not expected to

address every activity by DFO, EC or any other government department

across the country. As such, the Secretariat should remove the last sentence.

Section 5.3.3.2 Environmental Harmonization and Mining

Paragraph 1: Canada would like to emphasize that BC has not taken the

lead for enforcement of s. 36(3) of the Fisheries Act and Canada has

consistently recommended effluent quality standards consistent with

the MMER which are not “risk-based”. [See above comments under section 1, paragraph 15 and footnote 136.] In order to reflect this point, we

request that this paragraph be revised.

Section 5.3.4.1 The National Contaminated Sites Remediation

Program

Paragraph 1: In 1995, EC and BC Environment each contributed $65K

for site monitoring at Britannia. As such, the Secretariat should include

this additional information after the second sentence.

The last paragraph should be revised in order to reflect the cooperative

relationship between the province and the federal government. As such

the Secretariat should include the following underlined language to the

second sentence:

“As part of the on-going cooperative effort to remediate the Britannia site,

Tthe Province-as-PRP also entered into a verbal agreement agreed with

226 FACTUAL RECORD: BC MINING SUBMISSION
Environment Canada that under which Environment Canada would

conduct sediment investigations in Howe Sound, continue to contribute

technical expertise to the review of remediation works, and would support an application for $3M in federal funding for treatment plant construction.”

Section 4 Alleged violations of s. 36(3) at the Britannia Mine

[underlined text needs to be added to the title, as well

as in throughout the draft Factual Record.]

After Figure 3, paragraph 3 which begins with “MMER standards [...]”,

the following correction must be made by replacing the last sentence

with the following text:

“The determination of a deposit of a deleterious substance is complex and

does not necessarily reference MMER limits or limits of other Fisheries Act

regulations, but relies on site-specific evidence gathered by an inspector or

fishery officer designated under the Fisheries Act, and other expert testimony presented to the court at trial.”

Section 5.5 Canada’s Actions in regard to alleged violations of

s. 36(3) of the Fisheries Act at the Britannia Mine

Paragraph 3: This paragraph is incorrect. As such, we request that the

following underlined text be included:

“In a telephone conversation, an Environment Canada employee confirmed that Environment Canada has not conducted an inspection or an

investigation and thus has not had an enforcement file on the Britannia

Mine since at least 1999. Environment Canada has maintained numerous

other files related to compliance promotion activities including the technical review of proposed treatment and site-remediation options.”

Paragraph 5: Contrary to what is stated in this paragraph, Canada’s

approach to achieving compliance with s. 36(3) of the Fisheries Act has

not centered on supporting provincial enforcement action. Environment Canada provided scientific and technical support toward a resolution of the Britannia Mine pollution problem. This approach recognized

the benefits that could accrue through use of BC’s regulatory regime for

contaminated sites which were realized via the negotiated settlement

agreement. As such, we request that this clarification be reflected in the

text.

COMMENTS OF CANADA 227
Section 5.5.2 1994-1996 / Orphan Sites Funding and the Search for a

Buyer

Last paragraph: In order to use the same language as that used in the

legislation, the word “toxic” should be replaced with the term “acutely

lethal” in the third sentence.

Section 5.5.3 1997-2001 / Scientific Advances, Remediation

Proposals and Potentially Responsible Parties

Paragraph 28: In order to be accurate, the Secretariat should add the following underlined sentence after the first sentence: “On regulatory matters, some members of the public were concerned about why CBE’s

proposal had not triggered an environmental assessment under federal

and provincial legislation. Federal reviewers considered the possible

application of the Canadian Environmental Assessment Act to the project,

however, concluded that there was no automatic federal CEAA “trigger” (e.g. such as a habitat authorization or federal funding involved).”

[...]

Fourth paragraph prior to section 5.6 [which begins with On 8 May

2002, [...]” In line 4 of this paragraph a meeting in West Vancouver is

referenced. This is incorrect; the meeting was held in North Vancouver.

Section 5.6 Whether Canada is Failing to Effectively Enforce s.

36(3) of the Fisheries Act in the context of Britannia

Mine

Paragraph 1: In light of the instructions that were provided to the Secretariat by the Council, the first sentence is inaccurate and leads the reader

to believe that this Factual Record “is warranted to examine in greater

detail the effectiveness of the enforcement approach taken in relation to

each mine [Mount Washington, Britannia, and Tulsequah Chief], whether those approaches serve as models for effective enforcement with

respect to mines in British Columbia generally, and whether and how

Canada’s approach prevents the Fisheries Act violations at the mines in

the long term.” A Factual Record is an objective, independent presentation of the facts and should not analyze, in a subjective manner, the effectiveness of an enforcement approach taken by a Party and whether those

approaches should serve, or not, as models for effective enforcement. As

such, we request that this sentence be removed and/or revised to read:

228 FACTUAL RECORD: BC MINING SUBMISSION
“On 16 November 2001 Council instructed “the Secretariat to prepare a

factual record in accordance with Articles 15 of the NAAEC [...] for the

assertion that Canada is failing to effectively enforce section 36(3) of the

Fisheries Act with respect to the Britannia Mine.”

Section 5.6.1 Current Status

Paragraph 2: To appropriately reflect EC activities in relation to the Britannia Mine, the following underlined text should be included at the end

of the second sentence and should read:

“The Pacific and Yukon Region of Environment Canada has no enforcement file regarding Britannia and has not had one since at least 1999,

although it has maintained numerous other files related to compliance

promotion activities including the technical review of proposed treatment

and site-remediation options.”

Regarding the chart showing the current status of remediation funding,

it is confusing and erroneous.

Under “Contributor” there is a reference to Environment Canada “EC

(or Canada-as-PRP). Canada is not a PRP and we ask that this be omitted.

Under “Source of Obligation” is “Verbal Agreement” See our previous

comments (in the Executive Summary and elsewhere) and your footnote

305 : Environment Canada agreed to conduct a sediment investigations

in Howe Sound and review proposed remediation works as part of their

on-going technical support for Britannia remediation plan.

Under “Cash” is “$3M under Canada-BC Infrastructure Program to

build treatment plant” This is not linked to “Verbal Agreement”.

Under “Situation in October 2002” is “See above re: Infrastructure Program.... It is not clear who will pay for any recommended sediment

remediation”. Not only is this confusing we question the relevance of

“sediment investigations” to the issue of enforcement related to the

discharge of mine water into Howe Sound. BC has allocated funds for

sediment remediation should any be required.

COMMENTS OF CANADA 229
Section 5.6.2 Whether current initiatives will achieve

compliance with s.36(3) a the Britannia Mine in

the Shortest Possible Time and with no further

occurrence of Alleged violations [the word alleged

should be included for the reasons previously

mentioned].

Paragraph 1: To ensure that the last sentence is accurate the following

underlined text should be included :

“At Britannia, [...]would be considered by Environment Canada to signify

only one measure of compliance with the s. 36(3) general prohibition on

depositing deleterious substances into waters frequented by fish.”

Paragraph 2: Please refer to previous comments on MMER standards in

previous and proposed effluent discharge permits for Britannia and letter from EC to WLAP March 2003.

Paragraph 4: The citation provided by the Secretariat fails to illustrate

and appreciate the difficulties associated with implementing treatment

at a multi-owner contaminated site, in contrast to a green-field mine

under the control of a single owner-operator. As such we request that the

Secretariat reflect the extensive work that has been undertaken by the

provincial and federal governments, and the private sector, on locating,

designing, constructing and operating an optimum treatment plant for

Britannia, while designing and implementing a site remediation plan.

All of this work has been subject to critical analysis and peer review.

Paragraph 5: To ensure accuracy, the last sentence should conclude with

the following text : “[...] and exceedences of the site’s Waste Management

Act permits.”

Section 6 Closing Note:

Paragraph 1: To accurately reflect EC actions at the Britannia Mine, we

request that the paragraph conclude with the following text: “[...] ,

although it has maintained numerous other files related to compliance

promotion activities including the technical review of proposed treatment and site-remediation options.”

Paragraph 2: The third sentence is inaccurate and it should read as follows: “In 2001, the province settled with past owners for $30M. Environment Canada agreed verbally to conduct a sediment investigations in

Howe Sound and review proposed remediation works in Howe Sound

as part of their on-going technical support for Britannia remediation

plan.

230 FACTUAL RECORD: BC MINING SUBMISSION
ATTACHMENT 3

Comments of the United States of America

Mr. Geoffrey Garver

Secretariat of the Commission for Environmental Cooperation

Submissions on Enforcement Matters Unit (SEM Unit)

393, rue St-Jacques west, bureau 200

Montreal QC H27 1N9

Dear Mr. Garver,

Thank you for providing the United States with a copy of the Draft

Factual Record for Submission SEM-98-002 (BC Mining) (the “BC

Mining Factual Record”), which was received on March 31, 2003. We

appreciate the Secretariat’s assiduous efforts in preparing this document.

The accuracy of developed factual records is vital to fulfilling their

intended purpose of providing the public with objective assessments of

environmental law enforcement. The United States strongly supports

the submissions process and seeks to ensure that factual records are

accurate in their scope and purpose. We provide the following comments to assist the Secretariat in the development of the BC Mining Factual Record.

Although the term “factual record” is not defined in the North

American Agreement on Environmental Cooperation (NAAEC), Article

15 of the NAAEC and the Guidelines for Submissions on Enforcement

Matters under Articles 14 and 15 of the North American Agreement on

Environmental Cooperation both provide guidance regarding the type

of information a factual record should contain. Specifically, a factual

record should include factual information relevant to the matter(s) at

issue, and enable readers to draw their own conclusions as to whether a

Party is effectively enforcing its environmental laws.

As to the latter point of guidance, the United States believes that

overall, the Secretariat’s draft BC Mining factual record provides the

information necessary to enable readers to draw their own conclusions

as to whether Canada is failing to effectively enforce its environmental

law.

As to former point of guidance - whether the factual record includes factual information relevant to the matter(s) at issue - the United States provides two comments. The United States generally supports text

which discusses the scope of the factual record. However, as we asserted

previously in our comments to the MBTA draft factual record, the discussion of the scope should be limited to information relevant to the

COMMENTS OF THE UNITED STATES OF AMERICA 233
Council’s actual instruction to the Secretariat. The discussion should not

include for example, a detailed explanation of what is not addressed in

the factual record. For this reason, we propose removal of text in Section

4 which discusses what is not addressed in the BC Mining factual record.

We also take note of some of the text in the first paragraph of Section 5.6 - Whether Canada is Failing to Effectively Enforce s. 36(3) of the

Fisheries Act in the Context of the Britannia Mine (p. 94). That paragraph states:

This section provides information, gathered by the Secretariat that, read in

conjunction with information contained in ss. 5.3, 5.4, and 5.5., above, is

relevant to a consideration of whether Canada is failing to effectively

enforce s. 36(3) of the Fisheries Act in the context of the Britannia Mine,

whether Canada’s approach to achieving compliance with s. 36(3) at the Britannia

Mine serves as a model for effective enforcement with respect to mines in British

Columbia generally, and whether and how Canada’s approach prevents Fisheries Act violations at the Britannia Mine in the long term.” (Emphasis

added)

The United States believes it is beyond the scope of this factual

record for the Secretariat to examine “whether Canada’s approach to

achieving compliance with s. 36(3) at the Britannia Mine serves as a

model for effective enforcement with respect to mines in British Columbia generally.” Therefore, we recommend deletion of this phrase.

Thank you again for the opportunity to review this draft record.

The success of the CEC is dependent upon the close cooperation of the

Council, Secretariat, and Joint Public Advisory Committee, and upon

the strong interest and participation of the citizens of the member

nations. The submission process remains an important mechanism by

which the public is able to participate through the CEC in the protection

of our shared North American environment.

Should you have any questions, please contact Jose Aguto

(202-564-0289) or David Redlin (202-564-6437).

Sincerely,

Jerry Clifford

Deputy Assistant Administrator

Office of International Affairs

United States Environmental Protection Agency

234 FACTUAL RECORD: BC MINING SUBMISSION