COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

CANADA

Canada - Water Pollution, Liability of Company Officials

R. v. WESTMIN MINES LIMITED

(UNREPORTED) BRITISH COLUMBIA PROVINCIAL COURT

The Accused were alleged to be discharging toxic waste, namely treated mine water containing excessively high levels of various metals like zinc, copper and cadmium, into the Salmon River. The Salmon River is a transboundary river which rises in Canada but crosses the international boundary between Canada and the United States, entering the ocean in Alaska.

Westmin Mines Limited operated a gold mine just a short distance from the British Columbia- Alaska border.

At the time Westmin first sought a permit from the British Columbia Ministry of Environment to mine in the area, concerns of the United States Fish and Wildlife authorities and the citizens of Hyder, Alaska were taken into account in the planning for the mine as well as the standards that were set for the water discharge in the Mine Development Review Process.

There was a lack of evidence of any impact on water quality injuriously affecting either the Canadian or the United States side of the boundary. The Salmon River is sufficiently large, making it impossible to detect any effect at all on water quality in the river as a result of the illegal discharges of treated mine water.

Decision

The accused was fined a total of Can$ 26,000 on thirteen charges, the second and fifteenth charge having been stayed by the court for lack of specificity.

In imposing the fine the judge took into account the fact that the company had spent in excess of Can$ 900,000 to construct a lime water treatment plant and settling pond and the fact that there was no direct evidence of damage to the receiving environment.

The judge rejected arguments that the illegal discharges were within fifteen per cent of the permitted levels and therefore were not excessive; that there was official inaction prior to charges being laid, which had led the accused to believe that the environment ministry tolerated the conduct; and that it had used reasonable care (defence of 'due diligence'). The judge noted that the regulations did not distinguish between 'minor' and 'major' violations; that the accused failed to provide any documentary proof that the ministry officials 'tolerated' the accused's non-compliance; and that the investments made to bring the mine into compliance were made after the offences occurred and charges laid.