On 23 December 2016, the Southeast Alaska Conservation Council filed a complaint to the Canadian NCP against the Canadian company the Imperial Metals Corporation alleging failure of due diligence concerning downstream impacts of its operations at the Red Chris open-pit copper and gold mine in British Columbia, Canada. The complaint alleged that Imperial failed adequately to assess potential impacts to Alaskan ecosystems and fisheries, and failed to engage and disclose information to Alaskan stakeholders.
Specifically, the complainants were concerned about potential risk of acid rock drainage and metal leaching, notably of aluminum, cadmium and selenium, from the mine tailings dam into the Stikine River transboundary watershed used by Alaskan communities for salmon fishing and recreation. The complainants raised the risk of an environmental disaster from potential failure of the tailings dam, based on the experience of a failed dam, of an alleged similar design, at the Company’s Mount Polley mine in 2014.
The complainants alleged:
-Failure to account for certain factors in the design of the tailings dam;
-Failure to complete a risk assessment for a potential landslide and providing risks analysis for dam breach inundation scenarios;
-Lack of demonstrated commitment to avoid and minimize human rights related risks regarding clean water and customary uses of natural resources;
-Failure to engage with and disclose information to Southeast Alaska tribal representatives and other Alaskan communities; and,
-Failure to properly assess contaminant concentrations in local creeks and to adequately manage and control runoff water and sediments during the construction and operation of the mine.
Relevant OECD Guidelines
The Canadian NCP conducted an initial assessment and accepted some, but not all, of the claims. It rejected the allegations of breach of the environmental provisions of the Guidelines: here, the NCP determined that the “extensive” environmental assessment process requiring regulatory approvals by federal an provincial governments had considered and addressed all potential impacts. The NCP asserted that it does not review decisions of other governmental regulatory agencies. The NCP also rejected the allegations of breach of human rights due diligence, finding that because the Red Chris Mine is in co-management with the Tahltan Nation, the human rights related interests of the Tahltan Nation are thereby taken into account in the project. Based on these findings, the NCP concluded that the issues of environmental and human rights due diligence highlighted by the Notifier “would not benefit from an NCP-facilitated dialogue between the parties.”
The NCP did accept and offer mediation on the claims of breach of disclosure and stakeholder engagement. A delay ensued at the NCP following parties’ agreement to mediate. The NCP did not proactively communicate the delay to parties, but responded to a request about it by the complainant.
A mediation was held on 19 November 2018 at the office of the Canadian Consulate General in Seattle, Washington, USA, which did not generate an agreement between the parties.
On 7 May 2020, the NCP issued its final statement, recommending that Imperial implement a stakeholder consultation strategy to comprehensively and continuously consult all impacted stakeholders for the lifespan of each of its projects. The NCP also recommended that the company communicate publicly about its efforts to create a consultation strategy. The NCP also asked Imperial Metals to provide a written response to technical questions presented by the complainant and provide a copy to the NCP by 30 May 2020.
The NCP felt that the complainant had not informed or adequately consulted impacted communities on its decision to submit the complaint to the Canadian NCP, and that this compromised success of the mediation.