On 26 July Ken Kavanagh, former chair of the Sandy Pond Alliance gave a presentation about the Sandy Pond initiative to a class of business students in Professor Natalie Slawinski’s class. Here is an encouraging response from one of the students in the class:
“The Sandy Pond alliance has succeeded! They may not have saved Sandy Pond but they certainly made me question the democratic country we live in. I may nothave paid that much attention to political parties’ environmental stance in thepast but I certainly will in the future. The awareness that the Sandy PondAlliance brought to me has ignited a fire in my mind. I think the whole systemneeds to change and all decisions need to be educated and for the betterment ofthe world not just economic prosperity. I will be looking to make my opinionknown at the next ballot box that’s one thing I know for certain.”
R. John Gibson (email@example.com)
Sandy Pond Alliance to Protect Canadian Waters Inc.
A flame has been extinguished in our natural world, with both Federal and Provincial governments having given permission for Sandy Pond, located near Placentia Bay, Newfoundland, to be used as a toxic waste dump. A mining company,Vale, was given the lake, under Schedule 2 of the Metal Mining Effluent Regulations and the Fisheries Act, to use as a Tailings Impoundment Area. Sandy Pond was a pristine, isolated post-glacial lake, of 37.83 ha, with a unique ecosystem, including trophy brook trout, probably the largest brook trout left on the Island. Three species were present, brook trout (Salvelinus fontinalis), rainbow smelt (Osmerus mordax) and American eel (Anguilla rostrata).
Judging by work in other similar situations, where a population has been isolated for thousands of years, the trout and the smelt were probably unique genotypes. Yet, no genetic studies were done before eradicating these stocks. After attaining a certain size the brook trout fed on the smelt, and grew up to 3 – 5 lbs. The brook trout had a deep girth, and ‘looked different’ from most brook trout, and were probably a unique race. Destroying biodiversity contravenes the Convention on Biological Diversity (1992), signed by Canada, but this was not considered.
In 2010 the Sandy Pond Alliance to Protect Canadian Waters, a group of concerned Canadian citizens, challenged the give-away of this priceless natural resource under the recent federal government change allowing toxic wastes to be dumped into pristine waters. Our legal case was based on the premise that the guiding principle of the Fisheries Act of Canada is conservation and such destruction was beyond the parliamentary intention of the Act, or in legal terminology – ultra vires. In her ruling of October 31, 2013 Federal Court Justice Heneghan indicated that “…subsection 35(2) of the Fisheries Act allows the Minister to authorize the alteration , disruption or destruction of fish habitat under any conditions he deems appropriate”. Thus, if the Government so chooses, Sandy Pond, or any other waterway in Canada, can simply be taken away from citizen owners and given free of charge for a destructive industrial use.
Judge Heneghan described the Environmental Impact Study, which was in fact surprisingly inadequate, as an ‘extensive environmental study of Sandy Pond’. No studies were done to estimate the biological productivity of the lake. The population estimates were a failure. For example, although the proponent (Vale) claimed to have done a mark and recapture study to estimate numbers of fish, no recaptures of smelt were made, but they say if they had caught one marked smelt the population number would have been 3,609 smelt. They had no recaptures of trout, but one trout had a damaged fin, which they guess might have been a mark, so calculated that there were 303 trout in the lake. However, they later report moving 1400 fish to nearby lakes, ‘primarily trout plus a small number of smelt’ (Vale newsletter 2012). Also trout were killed when they drained the lake. Moving fish to lakes with different genetic stocks has been shown for decades to be damaging to receiving stocks, because of reduction in fitness of the receiving stocks if they interbreed , so this exercise was worse than a waste of time and money.
Dams have created a new reservoir of 74 ha for permanent toxic waste, including small adjacent lakes, destroying 45 ha of natural waters. For compensation of fish habitat the proponent calculated for the three species combined that there was fish habitat loss of 18.11 ha. The main compensation for loss of Sandy Pond was opening a partial barrier of vegetation at the outlet of Forest Pond on Salmon Cove River, Conception Bay. This purported to compensate for 12.12 ha of the lost 18.11 ha of fish habitats in Sandy Pond. In fact no new habitat would be created, and no studies showed that Forest Pond was not already at carrying capacity. Further questionable compensation is 7.4 ha by enlarging some small bog ponds, and 0.2 ha with Salmon Cove River enhancement. In fact their estimate of lost habitat in Sandy Pond was in error. Using the same variables for ‘Habitat Equivalent Units’ (Bradbury et al. 2001), I calculated habitat losses of 25.5 ha for brook trout (67.5% of the area of the lake), 34.8 ha for smelt (91,8% the area of the lake), and 15.7 ha (41.6% the area of the lake) for eel.
A not inconsequential detail is that the status of American eel under the Species at Risk Act is ‘threatened’. Under the Act (#32, [(1)] no person is allowed to kill, harm or harass an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species, nor (# 33.) is it allowed to damage or destroy the habitat of such species. This detail was ignored.
It appears to me that plans had already been made to use Sandy Pond as a toxic waste site, and that the EIS and compensation were bureaucratic rationalizations to facilitate using a natural lake rather than building a more expensive retaining reservoir. In consequence, the Sandy Pond Alliance took the federal government to court in 2010, on the grounds that the Fisheries Act forbade the destruction of fish stocks and their habitats. Unfortunately for all of us, the judge, Justice Elizabeth Heneghan, on October 31, 2013 gave her decision that the applicant was mistaken when asserting that conservation is the paramount purpose of the Fisheries Act.
Under fairly recent changes to the Metal Mining Effluent Regulations and the Fisheries Act it is now legal, by decision of the Minister of the Environment, at their political whim, to allow companies to discharge toxic wastes into pristine waters, if that is the cheaper alternative. It is now regulatory policy for economics to override environmental protection. Compensation must be made, but as indicated above this may be only a public relations exercise. The new regulations have the potential to destroy numerous valuable fish stocks throughout Canada (Hutchings and Post 2013).
Since Sandy Pond and another lake, in central Newfoundland (Trout Pond, operated for eight years, 2007 – 2015) have been given as subsidies to mining companies, 23 other lakes are under threat for destruction (Nelson 2013).
The Sandy Pond Alliance is working to restore protection of such lakes, as was available under the prior Fisheries Act, by informing citizens of this unnecessary destruction of our natural heritage. And, following the advice of Justice Heneghan, that “the will of the people with respect to legislation can be expressed at the ballot box”, we will continue to rally to bring pressure on our politicians to stop this destruction.
Bradbury, C., A.S. Power and M.M. Roberge. 2001. Standard methods guide for the classification and quantification of lacustrine habitat in Newfoundland and Labrador. Fisheries and Oceans, St. John’s, Newfoundland. MS 60 p.
Hutchings, J.A. and J.R. Post. 2013. Gutting Canada’s Fisheries Act: no fishery, no fish habitat protection. Fisheries 38: 497 – 501.
Nelson, J. 2013. Loophole lets healthy lakes be converted into waste dumps. CCPA Monitor 20 (7): 18 – 20.
Sandy Pond Alliance to Protect Canadian Waters Inc. Stop the Destruction
MEDIA RELEASE: For Immediate Release – November 24, 2013
Federal Court Rules Destruction of Pristine Lakes is Legal under the Fisheries Act – How Many More?
ST. JOHN’S — How much is a 10,000 year old pond teeming with prized trout worth?
In 2010, the Sandy Pond Alliance to Protect Canadian Waters, a group of concerned citizens, challenged the government’s give-away of Sandy Pond, a large 38 hectare lake, in Long Harbour, Newfoundland to Vale Inco Ltd. as a Tailings Impoundment Areas (TIA) or nickel processing pollution dump under Schedule 2 of the Fisheries Act. Our legal case to protect all Canadian freshwater ecosystems was based on the premise that the guiding principle of the Fisheries Act of Canada is conservation and that such destruction was beyond the parliamentary intention of the Act or in legal terminology – ultra vires.
In her ruling of October 31, 2013 Federal Court Justice Heneghan wrote that “…subsection 35(2) [of the Fisheries Act] allows the Minister to authorize the alteration, disruption or destruction of fish habitat under any conditions he deems appropriate.” Thus, if the Minister so chooses [and he did], Sandy Pond or any waterway in Canada can simply be given away for destruction for corporate development.
As Owen Myers, the Alliance’s lawyer, put it – “This ruling has clarified that the conservation standard of the Fisheries Act allows for the wholesale devastation of fishes and fish habitat.”
Justice Heneghan decreed that “the Applicant [The Sandy Pond Alliance] is mistaken when asserting that conservation is the paramount purpose of the Act … the use of Sandy Pond in this manner is not illegal.” But look …
THEN (Aug 2009) NOW (Telegram, 1 Mar 2013)
Once a favored site for Newfoundland anglers, today Sandy Pond is a savaged site. Its fishes [including Threatened American Eels] have been removed or killed. Sandy Pond is surrounded by a chain-link with a guarded gate.
So what protections exist? Destroying a species and its habitat until it is threatened with extinction and Species at Risk Act kicks in. It didn’t work for the Threatened American Eels in Sandy Pond.
The destruction of Sandy Pond was deemed the most appropriate developmental option in a weak, watered-down and scientifically-flawed environmental assessment process. There were other options.
As Dr. John Gibson, a former DFO research scientist and a Director of the Sandy Pond Alliance, said “if an environmentally sound artificial tailings pond could not be constructed in Long Harbour, they should not have been there and should have found an area where one could have been built.”
Across Canada today, another 13 lakes, ponds and streams are listed and 12 others have been proposed for obliteration under the Fisheries Act as pollutant dumps in the Northwest Territories, Nunavut, British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Newfoundland and Labrador. “While the judge has clarified the law of the matter, the controversy over the destruction of Sandy Pond is increasing and the legal decision won’t change that. Across the country Canadians are rejecting proposals to destroy valued lake ecosystems – alternatives must and can be found” commented Ramsey Hart of MiningWatch Canada
Some time, somewhere the destruction has to stop. It’s time to stop the government give-aways of our natural environment to extraction and energy corporations. A Fisheries Act that permits wanton corporate destruction of Canadian waters, fishes and fish habitat must be changed. Environmental regulations must be strengthened rather than fast-tracking every development through regulations watered-down by the Harper government.
In her ruling, Judge Heneghan indicated “The will of the people, with respect to legislation can be expressed at the ballot box.”
Is what happened at Sandy Pond and is ongoing at other lakes and streams across the Canada truly the will of the people?
Join us in addressing this federal court ruling at our press conference scheduled for 10 AM on Tuesday (26 November) at St. Teresa’s Parish Hall at Mundy Pond.
CONTACTS = Sandy Pond Alliance – Bill Montevecchi, Chair
Tel = 709-693-5305; email = firstname.lastname@example.org
Sandy Pond Alliance Lawyer – Owen Myers
Tel = 709-579-3321; email = email@example.com
MiningWatch Canada – Ramsay Hart
Tel = 613-569-3439; email = firstname.lastname@example.org
Follow the Links to See Sandy Pond Alliance Media Coverage Around the Court Case
The Independent Newspaper “Sandy Pond Alliance Declares Small Victory”
NTV News Coverage of the Sandy Pond Court Case and Rally
Ken Kavanagh speaks to CBCs Central Morning Show
The Telegram -Ashley Fitzgerald
DRAFT January 19, 2013
Sandy Pond Alliance Calls on Government to Remediate Abandoned Mine Tailings Ponds
The Sandy Pond Alliance, a national coalition of environmental and citizens’ organizations, is calling on the Government of Newfoundland and Labrador to allot additional funds to prevent further spills of poisonous toxic materials from abandoned mines and tailings ponds into Newfoundland and Labrador rivers, streams and waterways. In a 2010 report, the Provincial Auditor General identified over 600 abandoned mine sites and tailings ponds indicating their need for assessment and remediation.
Last year the Newfoundland and Labrador Government budgeted approximately $750,000 for remediation of sites in Newfoundland and Labrador. That amount was assigned to the remediation of the Gullbridge mine tailings pond for cleanup. That process had barely started when the tailings pond dam gave way and spilled into a nearby bog located upstream from the community of South Brook in Green Bay. While initial water quality tests indicate water supplies to be safe, the snow melt and spring runoff could influence water safety conditions. The Sandy Pond Alliance hopes this will not be the case but is concerned about the environmental circumstances surrounding the Gullbridge mine tailings pond and other tailings ponds throughout the province which may have weakened over the past few decades.
The Sandy Pond Alliance calls on the Government of Newfoundland and Labrador to establish a well funded remediation program to identify and prevent runoff from old tailings ponds and abandoned mining sites throughout the province. “We are concerned about the potential for polluting the drinking water of unsuspecting and vulnerable communities located downstream from these locations ” said Fred Winsor, a Sandy Pond Alliance board member. “ Many of these toxic tailings ponds are old and local residents may be unaware of their existence or what substances, if any, could leach into their water supplies.”
The Sandy Pond Alliance is currently preparing a presentation for the Government of Newfoundland and Labrador’s pre-Budget consultations. The Sandy Pond Alliance encourages communities around the province to find out if there are abandoned or neglected mining sites or tailings ponds in their area and to see if they are spilling or leaching potentially harmful substances into the natural environment.
Sandy Pond Alliance
St. John’s, Newfoundland