An alleged leaky mining tailings facility at McEwen Mining’s Black Fox Mine has prompted a northeastern Ontario First Nation to take legal action.
Apitipi Anicinapek Nation (AAN) announced the Toronto gold company has violated its obligations to the community under an impact benefit agreement (IBA) for failing to address an issue with a mine waste tailings facility that poses a health and environmental risk, and make compensation payments to the community.
In a news release, AAN said it filed its case in Ontario Superior court, Feb. 12. The allegations have not yet been tested in court.
AAN, formerly known as Wahgoshig First Nation, is located near Matheson, east of Timmins.
McEwen’s Black Fox Mine is also located outside of Matheson.
It’s initial production run was from 1997 to 2001 before being placed in mothballs. Recommissioned in 2009, it operated as an open-pit operation from May 2009 to September 2015 as a transition was made to underground mining in October 2011 and continued to 2021.
The community claims Black Fox is within its traditional territory.
"Our lawsuit says that McEwen Mining Inc. is in violation of its commitments to Apitipi Anicinapek Nation by refusing to make annual compensation payments of shares to AAN, for over a decade, and by causing preventable environmental harm by allowing tailings leakages that harm fish and wildlife and pose risks to human and ecological health," said Chief June Black in the release.
"The case says that the agreement between AAN and McEwen by which we consented to this project on the basis of the conditions and accommodation measures in it, is being breached by McEwen in these ways. They have known this for some time and refused or failed to fix these problems. They have driven us to have to go to court."
AAN said it consented to the mine being built in 2011, then under the ownership of Brigus Gold. The mine, mill and some adjoining properties were sold to Primero Mining in 2014. McEwen acquired the asset from Primero in 2017.
“This consent was not and is not open-ended; it is conditional on all the accommodation measures in the contract (a signed impact benefit agreement) it has with the company, being met,” AAN said in the release.
Impact benefit agreements are standard practice social and economic agreements between industry and an individual community regarding natural resource and related infrastructure projects. They are confidential and legally binding agreements covering how communities will participate in a resource operation or activity within their traditional territory.
The agreements basically cover environmental sustainability, revenue sharing, training, employment, and business opportunities while ensuring there are environmental safeguards and health and safety assurances in place.
They usually include dispute resolution mechanisms involving binding arbitration.
"If a company takes all the benefit and fails to deliver its side of the bargain to the First Nation, this amounts to a betrayal and a setback for reconciliation, "says Lance Black, AAN negotiator in a statement. "Too much has been stolen from us already, that to have this happen in this day and age is intolerable."
AAN said the IBA provides the community with assurance that any adverse impacts from the mine on its culture and territory are “prevented, mitigated and compensated through stringent environmental standards, monitoring and oversight and through a variety of benefits that more than offset the harms."
AAN contends McEwen has been aware of the tailings leakages issues since 2021, as well as the non-payment of share compensation since at least 2022.
The community claims the company has done nothing to date.
Late last year, AAN asserts that McEwen’s position is that it’s not a party to the Black Fox IBA since it is not signatory to the agreement.
McEwen’s investor relations representative did not respond to queries made by Northern Ontario Business.
AAN said the province has determined the tailings facility is an environmental hazard after a recent investigation by the Ministry of Environment, Conservation and Park, at the request of the community.
AAN’s news release said the ministry has determined there are environmental violations under section 30(1) of the Ontario Water Resources Act and sections 14(1) and 93(1) of the Environmental Protection Act in having to do with historical and continuing seepage of “polluting material” from mine’s tailings facility that may cause adverse effects to water quality in the Reid and North Driftwood Creeks as well as to downstream aquatic life.
The ministry has not yet responded our queries to confirm the community’s allegations and answer various questions, including if any remediation orders were issued by the province to McEwen.
