Grassy Narrows deserves better than ‘routine’ procedure to clean a poisoned river

OPINION: The government plans to order a pulp and paper company to help clean up the mercury pollution around Grassy Narrows, but may delay justice even longer in the process

If it’s a day that ends in Y, it’s safe to assume the governments of Ontario and Canada aren’t doing enough to improve the lives of Indigenous people. But there’s a difference between the malign neglect we’ve internalized about the conditions on many First Nations in Ontario, and what continues to take place at Grassy Narrows.

There are numerous First Nations in Ontario that lack housing, or electricity, or running water — and sometimes all three. But at Grassy Narrows and Wabaseemoong, the water itself has been poisoned thanks to the legacy of provincial industrial policy. It has taken years of activism, and some key reporting from the Toronto Star, but recently the Liberals have begun spending serious money to scientifically assess mercury contamination in the area — $2.1 million this year, $400,000 last year — as a prelude to projected $85 million cleanup, which will lay down a layer of fresh sediment in the river to trap the existing mercury.

But, maddeningly, the government is also taking a step that may needlessly delay the remediation work.

To recap: in the 1970s two First Nations in Ontario’s northwest, Grassy Narrows and Wabaseemoong, discovered the waters of the Wabigoon-English river system had been contaminated with mercury from a nearby paper mill owned by Dryden Chemical. (Mercury is a potent neurotoxin that can build up in animal tissues, like the fish the First Nations rely on.) They sued Dryden, and Ontario — worried the potential outcome could force Dryen to shut down its mill and cost forestry jobs — indemnified the company against environmental liabilities. At the same time, the provincial and federal governments provided the First Nations with financial compensation.

Fast-forward 40 years. As part of the scientific work that’s needed before remediation can start, today’s government wants to order the site’s current owner, Domtar, to help determine if there’s a new source of mercury seeping out of its property. Meanwhile, Domtar is promising to take the government to court if the Ministry of Environment and Climate Change follows through with the order.

“It’s a very routine matter,” minister Glen Murray told on Thursday. “If this happened anywhere else in the province the same kind of thing would happen … If you discover mercury is leaking from your site, I don’t think it’s an unreasonable expectation from the people of Ontario that they take reasonable measures to identify and address that.”

Simple story, right? The government is trying to clean up the environment while a big, bad, forestry company is thumbing its nose at environmental law and the people its predecessor poisoned.

Except, unsurprisingly, it’s not that simple.

The immunity Ontario gave Dryden back in the day is almost absurdly broad, and explicitly protects Dryden’s successors (today, that’s Domtar) from any “claim, action, or proceeding” related to any pollution from the Dryden site, forever.

If the government proceeds with its order against Domtar and the company fights it in court, there’s ample reason to believe the forestry company will win: the government lost a legal battle over this same issue, pertaining to a different property with a Dryden legacy, just last summer. In that case, Justice Glen Hainey ruled that, having made the deal in 1985, the government can’t back out of it now:

“The Province entered into a business agreement designed to save the pulp and paper industry in Dryden and to settle the lawsuit … The Province should not be permitted to withdraw this protection from future environmental liability and breach its indemnification agreement with impunity. It should be held to the bargain it made.”

To put it another way: Ontario can’t undo the protections it gave the Dryden mill decades ago. And the consequences could mean a years-long legal battle: The court case the government lost last year started with a ministry order in 2011. All of which calls into question what the government’s doing with this latest order. If they care about cleaning up Grassy Narrows as much as they say they do, the public needs more reassurance than simply being told this is a “routine matter.”

The New Democrats accused the Liberals of stalling for time in the legislature last week: Kenora-Rainy River MPP Sarah Campbell said that Premier Kathleen Wynne “knows that she will lose this latest court battle — her goal is not to win; her goal is to delay. All the while, families in Grassy Narrows and Wabaseemoong are literally dying of mercury poisoning.”

The total bill for the cleanup is estimated at $85 million and that number is soft: Murray concedes the government expects that to grow as the results of the site analysis come in. Both Murray and the premier have said the government will be there with money when the pre-remediation work is complete and there’s a clearer picture of how to proceed.

Given how seriously both of them say they take the issue, it’s strange that the government is picking a fight it could very well lose instead of taking the more expedient route of doing the work it’s asking Domtar to conduct itself.  Murray, for his part, says he doesn’t have any discretion over the process and it’s simply the province’s environmental law proceeding as it should — and expressly raised the possibility of his ministry forcing access to the Dryden site to do its own work if need be.

The Liberals are, legitimately if belatedly, taking Grassy Narrows seriously, and they are spending real dollars to do it. And Murray’s not lying when he says this is what a routine order from his ministry looks like. But justice delayed is justice denied, and even the hint of a new delay at Grassy Narrows just as legitimately sets off alarm bells. Given the history of Grassy Narrows, no Ontario government gets the presumption of innocence, and assertions that everything is going according to plan aren’t terribly reassuring.