Government cleared in Deloro case by Sue Yanagisawa
The Ontario Environment Ministry was found not guilty Wednesday of pollution charges laid by a private citizen in the Deloro case.
But no one really won.
“I feel pretty disappointed, after four years of this,” Kingston-area environmentalist Janet Fletcher said after Madame Justice Celynne Dorval handed down her decision in an Ottawa courtroom.
Fletcher said she fears “now that they’ve been found not guilty they’re not going to do a damn thing.”
Fletcher laid charges under the federal Fisheries Act and the Ontario Water Resources Act against the Ministry of Environment over the contaminated former Deloro Smelting and Refining Co. site.
About 3,000 to 5,000 kilograms of arsenic drifts down the river toward Belleville and Lake Ontario every year – a toxic legacy from the abandoned gold mine on the river’s edge.
The mine has been called the biggest toxic hotspot in Ontario.
Fletcher helped found the Environmental Bureau of Investigation after successfully taking the City of Kingston to court over its leaking retired dump under Belle Park. That conviction is under appeal by the city.
She went on, as a member of EBI, to launch the Deloro private prosecution in November 1997. She and EBI executive director Mark Mattson visited the property repeatedly over a two-year period to collect evidence of neglect and samples showing that arsenic, cadmium, cobalt, copper, nickel and zinc were leaving the then unfenced property and entering the nearby Moira River and Young’s Creek.
The Moira flows through Tweed and Belleville, emptying into the Bay of Quinte, and has an impact on an important sports fishery and numerous private properties.
Madame Justice Dorval said she was satisfied beyond a reasonable doubt that the Environment Ministry “has permitted the discharge of liquid contaminated with metals in both the Moira River and Young’s Creek and that such liquid had the ability to impair the quality of the water.”
But she also pointed to the complex environmental evolution of the 242-hectare site.
The property was involved in mining and silver refining around the turn of the last century. By the Second World War, the company that owned it was involved in the production of stellite, a specialized war metal, and arsenic-based pesticides. Finally, through the 1940s and 1950s, the old mine shafts were used to store low-level radioactive wastes.
In the 1960s, the property was transferred to a shell company that had no assets except the contaminated land and some unwanted buildings on the site. In 1978, when the Environment Ministry ordered a cleanup, the shell company declared bankruptcy and surrendered the property.
One year later, the province acquired the orphan mine site, which needed millions of dollars in cleanup, and became what Madame Justice Dorval called “the remediator of last resort.”
The judge said she was satisfied that the prosecution “established all elements [of the offences] beyond a reasonable doubt.”
However, she found the ministry not guilty because there was “due diligence” on its part between 1995 and 1997, the period covered by the charges.
“Although too much time had elapsed in fragmented studies of parts of the property previously,” she said in her decision, “as of 1993 the defendant had a detailed and planned approach to the remediation of a complex site. The defendant proceeded with minor, but essential components of its plan pending the approval of funding.”
WON’T GIVE UP
Mark Mattson promised that the EBI will keep an eye on Deloro to ensure that contaminants there are contained.
“Regardless of winning or losing, we have to keep doing our investigations.”
He said he felt it was a fair trial and that Ian Scott, the lawyer who assumed the prosecution on behalf of the attorney general, “did a great job.”
One more charge remains to be prosecuted. It was laid in November 1998 by EBI’s Tom Adams under the Environmental Protection Act and relates to radioactive contamination at the site. A meeting between the lawyers is scheduled for August on that charge.
There is also a civil action outstanding, involving property owners in the area and unrelated to the EBI charges.