Two NGOs have obtained a Federal Court order requiring Environment Canada to collect and report information on pollutants in mine tailings and waste rock, as part of the annual National Pollutant Release Inventory (NPRI).
Since 1992, the mining industry has had a series of exemptions from NPRI, exemptions not available to any other industry. In particular, the mining industry has successfully resisted reporting the contaminants it disposes of in tailings ponds and waste rock dumps as part of NPRI. Nongovernmental organizations, such as Great Lakes United and Miningwatch, have long opposed this exemption, but were never able to reach agreement with the mining industry. The mining industry wanted to report in some special, separate framework, not through NPRI. Despite prolonged negotiations over many years, the data was not reported, either through NPRI or otherwise. In frustration, the NGOs turned to the courts, and won.
Justice Russell brushed aside Environment Canada’s defence that this is a legislative and policy matter, not one for the courts, and that it is free to decide what data to collect and when it will be reported. Nor was he content to leave the issue with the government to resolve at some undetermined future date. Instead, Justice Russell said, Environment Canada owes the people of Canada a full and accurate report on the pollutants being dumped in our environment. The Canadian Environmental Protection Act, 1999, cannot mean that Canadians are to have information about an industry’s pollution only when that industry agrees. Environment Canada’s current practice “amounts to turning a blind eye to relevant information that all stakeholders agree should appear in a national inventory”. As a result, “the Canadian public is deprived of information concerning a significant source of pollution in Canada and concerning the environmental and health risks that releases of such pollutants pose for Canadians.”
As a result of the Minister’s long failure to act, Justice Russell ordered Environment Canada to immediately begin collecting and reporting information on pollutants in mine tailings and waste rock:
My conclusion is that the discretion and power to gather information under section 46 cannot be used to abrogate mandatory obligations under sections 48 and 50 of CEPA….
1. The Minister has erred in his interpretation of CEPA as not requiring him to
provide pollutant release information to the public through the NPRI in relation
to releases and transfers to tailings and waste rock disposal areas by mining
facilities in 2006 and subsequent years;
2. An order in the nature of mandamus is hereby issued and the Minister is directed
to publish pollutant release information to the public through the NPRI in
relation to releases and transfers to tailings and waste rock disposal areas by
mining facilities for the 2006 and subsequent reporting years in accordance with
sections 48 and 50 of CEPA.
See: Great Lakes United and Miningwatch Canada v. Minister of the Environment, April 23, 2009.