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Crown attempts to stay MiningWatch’s charges against Mount Polley

Image from Cariboo Regional District’s YouTube channel.

Public Service of Canada prosecutor Alexander Clarkson announced that the Crown wants to enter a stay of proceedings in relation to MiningWatch Canada’s private prosecution against the Mount Polley Mining Corporation and the Government of British Columbia over the 2014 Mount Polley Mine tailings breach near the city of Williams Lake.

In other words, the federal government is seeking a withdrawal of the criminal charges before the NGO has the chance to present the evidence it claims to have over the spill’s damages to downstream waters and fish habitat, which would constitute a violation of the Fisheries Act .

Talking to the Williams Lake Tribune, Clarkson explained the rationale behind the Crown’s request: “The first reason is because there’s no reasonable prospect of conviction against these two parties with the materials presented to us by the complainant Mr. [Ugo] Lapointe. The second reason is because it is not in the public’s interest to continue a private prosecution at this time because there is an ongoing comprehensive investigation being conducted by three different agencies — the B.C. Conservation Officer Service, Environment Canada and Department of Fisheries and Oceans. It is in the public interest that more comprehensive investigation be completed before a criminal prosecution.”

In response to the official’s declaration, the environmental organization released a statement in which the above-quoted Lapointe, who is Canada’s Program Coordinator for MiningWatch, expressed concern and disbelief over the Crown’s actions. “We initiated this private prosecution out of concern that it has now been over two and a half years since the Mount Polley disaster happened and yet, despite clear evidence of violations of Canadian laws, no charges have been brought forward by any level of government,” he said.

Judge Karen Whonnock hasn’t made a decision yet. She adjourned the case Friday and now both sides will have to choose a date to come back to Williams Lake Provincial Court and argue whether or not MiningWatch should be allowed to present its evidence.

In the same statement, the NGO’s lawyer Lilina Lysenko said that staying the charges prior to having the opportunity to determine if there is enough evidence to proceed could undermine the very foundations of private prosecutions, defined in the Public Prosecution Service of Canada Deskbook as valuable constitutional safeguards “against inertia or partiality on the part of authorities.”

MiningWatch’s action, which is backed by more than a dozen of other non-profit organizations including Amnesty International, Clayoquot Action, and Wilderness Committee, was filed under Canada’s Fisheries Act arguing that nearly 30 months have passed since the accident that poured 21 million cubic metres of wastewater and mine tailings into Quesnel Lake and caused major changes to the ecosystem, and still no state authority has brought forward any sanctions or penalties.

Mount Polley Mining Corporation, which is owned by Imperial Metals’ (TSE:III), manages the Mount Polley Mine, which is an open pit copper and gold operation in south central British Columbia, Canada. In June 2016, it received authorization to return to its normal activities making use of its repaired and buttressed Tailings Storage Facility.