Mine Disaster: Gov't Shirked Legal Duty to Warn Public, Says Advocate

An advocate for government openness says the B.C. government failed to perform its statutory duty to warn citizens about the state of the Mount Polley mining waste dam before the Aug. 4 disaster.

The B.C. Freedom of Information and Privacy Association formally complained Aug. 8 to Information and Privacy Commissioner Elizabeth Denham based on the section of the Freedom of Information and Protection of Privacy Act that requires public bodies proactively disclose information regarding a risk of harm to the environment or public health.

"Regrettably, there is considerable similarity between the collapse of the Mount Polley tailings pond and the collapse of the Testalinden Dam, where you found the B.C. government had failed to carry out its duty to release information to the public about the danger," wrote Vincent Gogolek in his Aug. 11-released letter to Denham. "Given the circumstances in this case, we believe it is important to determine not just whether the B.C. government breached its duty to release information related to this situation, but also to determine whether the B.C. government has done anything to implement the recommendations in your Investigation Report of last December."

Public needs info to pressure gov't: ruling

Section 25, as it is formally known, trumps every other section of the Act, but it is open to “broad and inconsistent interpretation” by public bodies, Denham wrote in her Dec. 2, 2013 report.

Denham found the Ministry of Forests, Lands and Natural Resource Operations failed to meet its section 25 obligations since the law came into force in 1993. The Ministry withheld from the public the inspection reports that showed the 80-year-old Testalinden Dam near Oliver was near the end of its life and was a hazard to people and property downstream.

"The information about the risk of failure of the dam was information that the public did not know and that would have likely resulted in the local citizenry, at the very least, pressuring government to take remedial action," Denham wrote.

Denham recommended the law be softened, so that information could be released without "there being temporal urgency."

Enviro ministry warned mine operator, not public

The Ministry of Environment claimed it warned Mount Polley, operated by Imperial Metals Corp., five times. The most recent warning was in May, when the amount of wastewater in storage exceeded allowable levels.

B.C.'s Chief Inspector of Mines, Al Hoffman, was on the recipients list for a Feb. 10, 2011 letter to Imperial from consultant Knight Piesold. Knight Piesold's letter informed Imperial that it would not continue as engineer of record for the mine. It warned that embankments and the tailings pond were "getting large and it is extremely important that they be monitored, constructed and operated properly to prevent problems in the future."

The next month, AMEC Earth and Environmental took over as Mount Polley's engineer of record.