UVic law centre criticizes province on Mount Polley

The University of Victoria Environmental Law Centre has filed a complaint with the province’s privacy commissioner, arguing the B.C. government is breaking the law by not releasing reports about Imperial Metals’ Mount Polley mine.

The gold and copper mine has been under scrutiny since the collapse of its tailings dam on Aug. 4, which released millions of cubic metres of water and tailings containing potentially toxic metals into Hazeltine Creek and Quesnel Lake.

B.C.’s Mines Ministry has refused to release some documents that are required to be produced under law, saying to do so could jeopardize the outcome of several government investigations.

The UVic centre noted that the “apparent” breach of the information act had taken place with the B.C. government’s refusal to release environmental assessment documents and dam inspection reports, some of which were later found in public libraries.

“Government’s delay in releasing documents that should be released relevant to the greatest mining environmental disaster in B.C. history is a matter of clear and pressing public interest,” said the law centre in its 60-page submission.

The law centre said that it’s only because public libraries are not under the control of a “secretive” provincial government that the public has gained access to the 1992 and 1997 environmental assessment reports and a dam inspection report from 2010.

“When things are concealed, things go wonky. Backroom stuff is not the way to operate a democracy,” said Calvin Sandborn, legal director of the environmental law centre.

The UVic law centre is also calling on the privacy commissioner to recommend reform of the Freedom of Information and Protection of Privacy Act to require posting online of mining permits, orders, engineering and safety inspections and tailings storage facility reports.

The centre notes that these type of documents are routinely posted online in other jurisdictions, including the United States, Ontario and Nunavut.

B.C. Mines Minister Bill Bennett has said he’s been advised by the Attorney General’s office that if he releases the documents, there is a “real” risk of jeopardizing a prosecution after the investigations are complete.

That’s because any firm that might have liability in the collapse – the company, engineering firm, contractors and others – could argue the government prejudiced the courts against them by releasing this information, Bennett said in an interview before the UVic law centre filed its complaint.

Investigations into the dam collapse are underway by the B.C. Conservation Service, the province’s chief inspector of mines and a three-member expert panel appointed by the B.C. government.

Bennett said he’s been told there are as many as 280 documents that deal with geotechnical aspects at Mount Polley mine.

“It’s obvious to me it would be better for government, if we could just say to the public: ‘Here it is – everybody can sort through it. See for themselves’,” said Bennett.

But because of the legal advice, he can’t release them, he said.

The Justice Ministry confirmed it provided advice to the Mines Ministry on the release of documents.

Justice Minister Suzanne Anton and ministry officials were not made available for an interview.

“The Ministry of Justice conducted a privileged and confidential legal analysis on whether there would be any legal issues with disclosing the 2011, 2012 and 2013 annual tailings storage facility inspection reports and other related reports,” assistant deputy attorney general Kurt Sandstrom said in a written statement.

That analysis concluded it would not be appropriate to release the reports during regulatory investigations as their release may be harmful to law enforcement matters, he said.