Provincial court judge Alana Murphy has sentenced Atlantic Mining NS, which does business in Nova Scotia as Atlantic Gold, to pay a total of $250,000 in fines and contributions for failing to comply with federal and provincial environmental regulations at and around its Touquoy open pit gold mine in Moose River, about an hour’s drive east of the Halifax Stanfield International Airport.
The company will pay a fine of $5,000 to the province and the same to the federal government. In addition it will pay $120,000 for the federal charges, to be used for “the conservation of fish and fish habitat, or the restoration of fish habitat in Nova Scotia.”
For the provincial charges, it will pay $120,000, to be divided equally between the Unama’ki Institute of Natural Resources (UINR) in Eskasoni, and the Mi’kmaq Conservation Group.
The sentencing comes a week after Atlantic Mining NS pled guilty to the federal and provincial charges, as Jennifer Henderson reported for the Halifax Examiner.
The Examiner broke the story about the provincial charges in December 2020, after we learned that Nova Scotia Environment and Climate Change had laid 32 environmental charges against Atlantic Gold in September 2020, for violations occurred over an 18-month period between February 2018 and the end of June 2019.
After 10 adjournments of the case between January 2021 and February 2022, the provincial charges were combined into one 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.
In June 2021, the Examiner learned that federal charges had also been laid against the company for failing to comply with federal Metal and Diamond Mining Effluent Regulations
“Reckless disregard for the federal regulations”
In her submission to the court that day, Federal Crown Prosecutor Marian Fortune-Stone noted that there were seven incidents between September 2018 and April 2020 when Atlantic Mining NS failed to take samples of “unauthorized releases” of sediment and “deleterious substances” into waterways to determine if the effluent was “acutely lethal” to fish, and to immediately notify Environment and Climate Change Canada of the release.
Fortune-Stone called this “reckless disregard for the federal regulations,” pointing out that the company knew the regulations and was in regular contact with an Environment Canada compliance officer, who had even provided them with a written warning.
In her sentencing decision, Judge Murphy said that in terms of culpability for the actions, particularly for the provincial offences, “it can be presented in the court in its totality as something not close to being a due diligence near miss, but something further up the scale, and certainly something midway, perhaps more towards recklessness or intentional.”
Related: Atlantic Gold is going to court
“The company had the opportunity and ability to avoid the [federal] offence,” said Judge Murphy. “They had training programs and staff with environmental oversight. But despite that, they did not have a system in place that would ensure compliance with regulations.” She noted:
These types of operations, as has been set out to the court, are self-regulated in many regards. The citizens of the province, [and] the country for that matter, are entitled to rely on good corporate practise to balance the pursuit of profit with the protection of the environment. As a self-regulating industry there is considerable obligation in these circumstances … the company had to be aware of the potential danger, but took a risk, not to test.
The judge said these are not “administrative types of offences.”
A slap on the wrist?
Judge Murphy agreed with provincial counsel David Cox that the penalty should be “more than a slap on the wrist but less than a fatal blow.” She said the amount of the fines and penalty was “not insignificant” and well within the capacity of the mine owner, Australia’s St Barbara Ltd, to pay.
Given that Atlantic Gold has produced more than $750 million worth of gold at its Touquoy open pit mine in Moose River since 2017, the $250,000 penalty will certainly not come close to being a fatal blow, or even much of a slap on the wrist.
Cox noted in his submission to the court last week that St Barbara reported $94 million cash on hand at the end of its second quarter.
Judge Murphy accepted recommendations from the federal and provincial prosecutors on the amounts of the fines and charges, as well as conditions. Among them, Atlantic Mining NS is to develop and implement environmental training and testing programs for employees, as well as “educating other members of the mining industry” by offering an open, hour-long Powerpoint presentation to the members of the Mining Association of Nova Scotia (MANS).
Judge Murphy stipulated that the conditions will not just apply to Atlantic Gold’s Touquoy gold mine in Moose River, but also to the “Cochrane Hill gold mine project in Guysborough County, the Beaver Dam mine gold project in Halifax County, and the Fifteen Mile Stream gold project in Halifax County.”
This seems like an assumption, perhaps premature, that the three additional open pit gold mines that Atlantic Gold has proposed for the province’s Eastern Shore, all of which are currently undergoing joint provincial–federal assessments with the Impact Assessment Agency of Canada, will indeed be approved.
The Beaver Dam project is in its third round of assessment, and is facing stiff opposition from Millbrook First Nation and the Nova Scotia Salmon Association.
Atlantic Mining NS lawyer Robert Grant did not make any comments on Judge Murphy’s sentence today. But this is what he said of the most significant charges in his submission to court last week when he offered a guilty plea.
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.
Disappearing words
Moments after today’s sentencing, St Barbara’s “President Americas” Meryl Jones released a statement that referred to the guilty plea as a “settlement.”
Conspicuously missing from the 608-word statement are the words “guilty” or “fine” or “sentencing” or “charges.”
Jones said they were “very sorry” for the “incidents.”
And then:
At St Barbara, we are committed to doing the right thing. We have made it our priority to reinforce and strengthen our due diligence standards and procedures to ensure our operations are fully compliant with both federal and provincial requirements and we are regretful that the events occurred in the first place – even if the underlying problem predated our ownership. Honouring our commitment to trust and transparency is of utmost important to us. (emphasis added)
“The underlying problem” may have predated St Barbara’s ownership of Atlantic Gold, which it acquired in 2019 for $722 million, but there were violations well after that date, and Steven Dean, who was president and CEO of Atlantic Gold when it was purchased, is now on St Barbara’s board.
The whole Atlantic Gold team that developed the Touquoy mine were handed the prestigious industry Viola R. MacMillan Award at the 2020 Prospectors and Developers Association of Canada (PDAC), which bills itself as the “world’s premier mineral exploration and mining convention.”
Atlantic Mining NS now has until March 2022 to pay its fine and penalties for the environmental charges.
One it has done that, there is another court case on the horizon for the company.
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.
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Really glad to see this money go to MCG and UINR.. They’re both doing great work.
The penalty however is 0.03% of the total earnings of this mine so far. If you average their profits by year and consider it a penalty against whatever year of production the offence happened it’s still only 0.13%. These guys probably pay more than that in fuel a year.
If the penalty is not proportional to profits in some way it’s useless because management and stock holders will write it off as the cost of doing business.