Mount Polley tailings pond breach could result in First Nations legal action

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The tailings pond spill at Mount Polley mine this week could lead to First Nations legal action, according to aboriginal rights lawyer Louise Mandell.

“If this does result in, which I’m really fearful it will, a diminishment of the fishery, even the destruction of certain runs, you can be sure that there will be legal action seeking redress on that,” Mandell told the Straight by phone.

“There is such a major interest in land, interest in fish, interest in property…this is a constitutional right which could be very severely impacted and damaged. I think you could also foresee First Nations taking action against the loss of their watersheds, and the damage to their forests and the damage to their wildlife, and the damage to their culturally important plants, and the damage to their way of life on the land.”

The Tsilhquot’in Nation plans to look at its legal options if members don’t have access to the sockeye salmon run that they depend on, according to Chief Joe Alphonse.

“This year we were actually anticipating getting 2.5 million return,” Alphonse said in a phone interview.

“The salmon that’s going to be entering into our territory could potentially be filled with arsenic and mercury and whatnot,” he added.

“If they wipe out a whole salmon run, this is the worst time you can have this type of catastrophe, the worst possible time…If we can’t have access to our salmon, a lot of our members are going to have a long, hard winter and get by eating spam and bologna.”

Alphonse said his members will wait to see the impacts of the spill on the salmon run, and if they don't have access to the salmon, they intend to pursue legal action against the mining company.

"The company and maybe the province for not having stricter regulations around protecting that kind of stuff," he added.

Mandell said the legal position of First Nations could also be strengthened due to the recent Supreme Court ruling on aboriginal land title.

“If you apply that framework to this devastated landscape, what you see is that it’s not just ‘Crown lands’ which have been impacted by this terrible, terrible disaster, it’s also lands over which there’s aboriginal title, aboriginal rights to the fishery, aboriginal rights to the wildlife and to their medicinal plants, and to non-timbre forest products and to forests.

“There is such an impact to the aboriginal interest in land. This is a specific impact that is different from what other Canadians or other British Columbians experience. So flowing from that, there will be legal action that’s possible to deal with the damage.”

The B.C. Ministry of Environment said Wednesday (August 6) it has issued a “pollution abatement order” to Mount Polley Mining Corporation, requiring immediate action to stop the further release of mine tailings into nearby waterways.

The Cariboo Regional District has declared a state of local emergency, and the entire Quesnel River system up to the Fraser River is under a do-not-drink advisory.

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