Gold mining company escalates appeal to N.S. Supreme Court

The company behind a Nova Scotia gold mine that stopped operating last year is escalating its disagreement with the province about how to clean up the site.

Atlantic Mining Nova Scotia, a subsidiary of Australian mining company St Barbara, thinks the terms and conditions it's supposed to follow to remediate the Touquoy gold mine in Moose River, N.S., were not made in good faith, go against industry standards and cannot be met.

Those terms and conditions were set by Environment Minister Tim Halman in a reclamation industrial approval issued in late March.

Atlantic Mining wrote to Halman one month later to appeal.

In July, Halman wrote back, rejecting the appeal, and advised the company it could take it to the Supreme Court of Nova Scotia.

Lawyers representing Atlantic Mining did exactly that, filing an appeal late last week.

In documents submitted to the court, the company argued the minister's rejection of its initial appeal was unreasonable on several grounds.

It raised issues around Halman's standards for water quality management and monitoring, and the prescription of "arbitrary" deadlines.

The industrial approval includes a variety of deadlines for different stages of work, starting this year and stretching into 2028.

It also alleges that the terms and conditions set for remediation of the Touquoy mine are not site specific, they ignore a plan the company submitted and they "expose" Atlantic Mining to prosecution for non-compliance.

'Objectively impossible to meet'

The company said the terms of the approval "were made to target and subject the appellant to a regime of mandatory compliance with standards which are objectively impossible to meet."

Atlantic Mining is looking for the court to quash the minister's decision to uphold the reclamation industrial approval and ensure the approval is amended, either through mediation between the company and the province or by the court's direction.

Reclamation bond

A consultant hired by Atlantic Mining has estimated the cleanup will cost $79.9 million. Atlantic Mining has paid over half that to the province, $41.2 million, as a surety that the work will get done. The payment is known as a reclamation bond.

The company is supposed to pay the remainder of the bond, $38.7 million, by Sept. 3. A spokesperson for the Department of Environment said the deadline stands regardless of court proceedings.

In its appeal, the company said it is looking for the bond to be returned in instalments to help with the cleanup work.By refusing that, the company said the province is jeopardizing the whole process.

The Department of Environment would not comment on the appeal, and it has not filed a response to the court. But the company's grounds are essentially the same as its earlier appeal to the minister.

Halman explained his rejection in detail when he wrote to Atlantic Mining in April.

Why the minister rejected the appeal

He said the company could request portions of the surety be released as the work is completed.

When it comes to water quality criteria, Halman said Atlantic Mining is arguing to wait for an adverse environmental outcome before taking action, rather than being proactive when there's a risk of an adverse effect.

While Atlantic Mining argued that groundwater was never potable in the area and there are no potential users, Halman said water resource risks are particularly high in the province, and few areas "are truly isolated."

"Nova Scotia has less landmass than other jurisdictions and relies significantly on groundwater. The criteria were not established in an arbitrary manner and [are] focused on protecting a valuable and delicate resource," he wrote.

The Touquoy mine is in a historical gold mining district, and there were mining activities last century by other operators. In its appeals, Atlantic Mining said pre-existing conditions, for which it isn't responsible, aren't being taken into account.

Halman said because of the history of mining, the department requested trend analysis through multiple sampling rounds, rather than focusing on comparisons to a baseline that predates all mining, which in this case isn't available.

Contrary to Atlantic Mining's claim that deadlines were arbitrary, Halman said timelines reflect what the company submitted in its reclamation plan.

He said nothing has to be done immediately, but "there are risks of an adverse effect on the environment if reclamation activities do not proceed in a timely manner."

On the company's claim of unfairness, Halman said his department has worked with Atlantic Mining since 2014, met regularly with company officials and granted 17 amendments to its industrial approval for operating the gold mine.