Provincial court judge Alana Murphy has reserved decision on whether Atlantic Mining NS Inc., which does business in Nova Scotia as Atlantic Gold, should pay a total of $250,000 in fines and contributions for failing to comply with federal and provincial environmental regulations at its open-pit Touquoy gold mine at Moose River, an hour’s drive northeast of Halifax on the Eastern Shore.
“The amount is not insignificant and in line with similar offences elsewhere,” said provincial crown prosecutor Brian Cox. “It’s certainly more than a slap on the wrist but less than a fatal blow.”
Hardly even a slap on the wrist, and certainly nothing near a fatal blow. Cox noted Atlantic Mining’s parent company, Australia-based St Barbara, reported $94 million cash on hand at the end of its second quarter.
Lawyer Robert Grant entered guilty pleas on behalf of Atlantic Mining to two sets of charges. The first charge under Section 68(2) of Nova Scotia’s Environment Act related to a series of a dozen releases of sediment into nearby brooks that exceeded what is allowed under regulations and the mine’s Industrial Approval.
Those violations occurred over an 18-month period between February 2018 and the end of June 2019 near the gold mine, and at a clay pit two kilometres away.
Grant also entered guilty pleas on behalf of Atlantic Mining for failing to comply with federal Metal and Diamond Mining Effluent regulations. Those rules require the company to take samples of effluent after “unauthorized releases” of sediment and “deleterious substances” into waterways to find out if the effluent is “acutely lethal” to fish. The company must immediately notify Environment and Climate Change Canada of any such releases.
Federal Crown prosecutor Marian Fortune-Stone recounted at least seven incidents over the period September 2018 to April 2020 where the company failed to do this.
“There was certainly reckless disregard for the federal regulations,” noted Fortune-Stone. She said the company knew the rules, had regular contact with an Environment Canada officer, and knew by June 2019 it was being investigated for failing to sample effluent from the runoff. Still, nearly a year later, on April 27 and 28, 2020, the company once again failed to notify the feds.
“Either the company did not have a system to ensure compliance or it was simply ineffective,” Fortune-Stone told the court.
Atlantic Gold apologizes
“On behalf of Atlantic Mining we acknowledge responsibility for the circumstances which precipitated the subject charges in this matter,” said lawyer Robert Grant. “Atlantic Mining wishes to convey its regret for its oversight with respect to environmental compliance… Atlantic submits the financial payments will act as both a general and specific deterrent to future incidents.”
The sentencing hearing was conducted over the telephone due to COVID restrictions. Grant noted both the general manager for the operation in Moose River, Andrew Taylor, as well as St Barbara’s president of its America division, Meryl Jones, were on the line.
Although it took more than a year and 11 court appearances to reach an agreed upon set of facts and joint sentencing recommendation, the company’s decision to plead guilty will save the public (and also the company) weeks of expensive trial time.
That’s likely to be a point in the company’s favour as the judge reflects on an appropriate sentence. The company’s lawyer also noted that the prosecutors found no evidence of actual harm to fish and a study by Stantec engineers — paid for by Atlantic Mining — suggests any damage to the waterways is “not irreversible.”
Grant told the court the main problem that led to the siltation and failure to comply with environmental regulations has now been remedied.
Readers of the Halifax Examiner may recall Joan Baxter’s reporting on this issue many months ago, when Atlantic Mining / St Barbara spokesperson Dustin O’Leary suggested to S&P Global’s Kip Keen that “heavy rainfall” was to blame.
Here’s what Atlantic Mining’s lawyer told the Judge yesterday:
The major difficulty which gave rise to the most significant charges relates to the inadequacy of the haul road and the stormwater systems to contain sediment-laden runoff from that portion of the mine. Atlantic Mining has dedicated a great deal of energy and capital in securing expert third-party advice from engineers on how to correct the problem and has spent $2.5 million to redesign and re-construct the TMF haul road. That investment has been successful and there have been no unauthorized releases of substances or water since June 2021 when that work was completed.
Although the violations under the NS Environment Act stem from before St Barbara purchased Atlantic Gold for $722 million in July 2019, the new owner assumed that liability and then failed to live up to federal environmental regulations as late as April 2020.
The joint sentencing recommendation
“The purpose of the sentencing recommendation is the hope it will lead to conscientious compliance by Atlantic Mining and it will also deter others,” said Fortune-Stone. She said the failure to sample water for effluent from a mine site containing metals and chemicals is not an “administrative” one but rather an omission that could have long-lasting consequences for species.
Here’s what the federal and provincial Crown prosecutors are recommending in terms of payment by Atlantic Mining. The proposed total is slightly higher than the $225,000 Northern Pulp was fined for discharging toxic wastewater in 2014 from its ruptured effluent pipeline on Mi’kmaq burial grounds at Indian Cross Point, about a kilometre from Boat Harbour.
For failing to comply with federal regulations, the Crown is seeking a $5,000 fine and a $120,000 penalty under the Fisheries Act, which would go into its Environmental Damages Fund.
For violations under the provincial Environment Act — which also include withdrawing fresh water from a lake and stream used for exploration drilling — Cox said penalties must be perceived as “more than the cost of doing business.”
The province is recommending a $5,000 fine and a $120,000 monetary contribution to be split between two Mi’kmaq conservation groups to carry out further research on aquatic ecosystems. The Unama ‘ki Institute of Natural Resources in Cape Breton and the Confederacy of Mainland Mi’kmaq have accepted the money.
As the Examiner reported in October last year, the Nova Scotia Salmon Association (NSSA) turned down a similar offer because of concerns about the negative effects Atlantic Mining’s proposed mines at Beaver Dam and Cochrane Hill could have on the West River Sheet Harbour and St. Mary’s River watersheds, the value of which NSSA says “far exceed any kind of six-figure donation or penalty.”
Judge Alana Murphy set next Friday, February 11, as the date to deliver her sentencing decision on a mining company that has admitted to flouting environmental regulations even as it is seeking approval from the same provincial and federal authorities to expand its gold mining operations at three more sites along the Eastern Shore — Beaver Dam, Fifteen Mile Stream, and Cochrane Hill — in the face of mounting opposition from First Nations and other groups.
This may not be the last court case Atlantic Mining NS will have to face.
In 2019 John Perkins filed a lawsuit against Atlantic Mining NS, members of its staff, and the RCMP, after he was roughed up and violently arrested at a public information session the company was hosting in Sherbrooke. That case has yet to be heard.