Sandy Pond Alliance not backing down

Ashley Fitzpatrick
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Citizens’ group will appeal Federal Court ruling on Fisheries Act regulation

The Sandy Pond Alliance to Protect Canadian Waters is appealing a Federal Court decision on their legal case — now an attempt to strengthen environmental defences in federal Fisheries Act regulations.

The citizens’ group announced the decision to file the appeal at a news conference this morning at St. Teresa’s Parish Hall in St. John’s.

“This kind of litigation is public interest litigation,” said Alliance lawyer Owen Myers.

“It’s not really correct to say that somebody has won or somebody has lost, because I’ve been in these environmental cases in the past and we’ve won, but then as soon as we’ve won, the government changes the regulation.

“So this is more about finding out what actually are the boundaries of the law as it exists today.”

Sandy Pond is no longer a pond. While the three-year case of the Sandy Pond Alliance to Protect Canadian Waters was heard and decided, the 38-hectare body of water was drained and transformed into a tailings impoundment for Vale’s nickel-copper-cobalt processing plant in Long Harbour.

The work by Vale was assessed and certified by the federal government, with requirements on the mining company for a fish transfer and a habitat replacement program.

However, in final arguments in Federal Court in late February, Myers said changes to the federal Fisheries Act in 2002 — specifically the addition of Metal Mining Effluent Regulations allowing for this kind of use of a pond or lake as a tailings impoundment — were not in line with existing statutes and the very purpose of the act.

In response, within a 38-page decision, Justice Elizabeth Heneghan said the Alliance was mistaken in its belief that conservation is the paramount purpose of the Act.

While driven by varying backgrounds and interests, the Alliance members said today they have decided to appeal the ruling.

The Alliance members made it clear they want to both draw attention to, and challenge, regulations they feel are providing inappropriate discretionary powers to a federal minister, allowing for what they see as the unnecessary destruction of fish habitat.

“If we compare it with industrialized countries, developed countries, our Fisheries Act is incredibly outdated, sadly outdated, and in fact all the changes that have happened to it since in the more recent times have been to reduce the strength of that act,” said Ian Fleming, an Alliance member who spends his days as a professor at the Ocean Sciences Centre.

“The (Fisheries) Act is not prescriptive,” he said. “It allows for the authority of a minister to make decisions at their political whim that threaten our freshwater and marine environments.”

Fellow Alliance member Bill Montevecchi noted Nature Canada, Nature Newfoundland and Labrador, Mining Watch and the Council of Canadians have offered support, something he suggested highlights the fact other Canadian freshwater lakes and ponds have been marked for a similar fate to Sandy Pond.

“It’s supposed to be about conservation,” Montevecchi said of the Fisheries Act.

The Harper government and federal government lawyers have maintained the Fisheries Act is used to recognize, but also govern, the many and sometimes competing interests in fish habitat.

Government representatives have also said earlier regulatory language unreasonably blocked activities around such habitat.

An explanation of recent changes in the Fisheries Act, brought in in 2012, is available through the Department of Fisheries and Oceans. (

Organizations: Sandy Pond Alliance, Department of Fisheries and Oceans

Geographic location: Sandy Pond, Long Harbour.The

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