Penobsquis: Seeking justice in the “Theatre of the Absurd”

“Theatre of the Absurd” is how one observer described the current Mine Hearing in Sussex. Under the auspices of the New Brunswick Mining Act, the Mining Commissioner has been holding hearings into damage claims against mining giant Potash Corporation of Saskatchewan, New Brunswick Division (PCS).

PCS currently owns and operates an underground potash mine beneath the small rural community of Penobsquis. The mine has been in operation since 1983. Twenty-six members of the group “Concerned Citizens of Penobsquis” (CCP) are seeking compensation for lost wells, lost well water, costs of well repair and re-drilling, property damage, lost property values, and pain and suffering, all a result , they claim, of the mine operations.

The hearing has taken on an almost Kafkaesque character as citizens attempt to navigate through a bureaucratic maze while blind folded, gagged and bound in chains of legalistic mumbo-jumbo.

The hearing began almost one year ago and has been periodically tied up in procedural wrangling and legal arguments about the admissibility of evidence. There have also been scheduling difficulties over the availability of government witnesses during the summer holiday months.

Civil servants, subpoenaed in September have now begun to testify at the hearings. Although the CCP was initially liable for the expenses of civil servants testifying as part of the CCP case, the government recently agreed to pay the expenses of those civil servants.

The citizens of Penobsquis gave their personal side of the story in emotional testimony in May and June.  Although the citizen’s group had legal representation at the initial hearings, legal costs and complications in communications motivated the group to represent itself beginning in September with Beth Nixon of CCP as lead spokesperson for the group.

Citizens highlight the difficulty of presenting an effective citizen’s case, citing the constraints of admissibility of evidence and the costs of hiring expensive legal counsel and expert witnesses. The group has also been hindered by the “conflict of interest” expressed by most big name consultants capable of handling the technically challenging case. The Mining Commissioner has the power under the Mining Act to fund such studies to inform the hearing on the issues before it, but has chosen thus far not to provide funds for any initiative put forward by the CCP.

The net effect of all this legal maneuvering has been an expensive and time consuming hearing for all concerned, including taxpayers. The hearing has also created embarrassing moments on the stand for civil servants, who have appeared at times ill-informed and unconcerned, and who have repeatedly expressed the opinion that departments other than their own hold responsibility for resolving the problems experienced by the CCP.

Two basic but related issues have arisen in the case: 1) the loss of water wells and 2) the social impacts of land subsidence or land sloughing due to the mine cavity and rock movement.

In 2004/2005, the government attempted to address the issue of lost water wells by first drafting Terms of Reference for a comprehensive hydro-geological study by Jacques-Whitford Consulting. A government plan to fund the study was later modified to allow PCS to fund the study, a move that CCP considered prejudicial to its claims.

The study failed to find a conclusive cause for well loss but did state “Of the possible sources assessed, seasonal water variation due to climate conditions, and the brine inflow possibly caused by subsidence induced changes in deep ground water flow pathways, appear to be the main factors possibly affecting water table levels in the Penobsquis Loop area.”

Whether deliberate or accidental, the language of the report was scientifically vague.

The CCP have pointed out that despite low seasonal recharge during the 2004 spring run-off, 2004 was an average year for annual precipitation in New Brunswick, while 2002, 2003 and 2005 were all above the 50 year average; yet the wells did not recharge.

For CCP, fundamental logic would seem to leave only one likely cause for well loss. Yet civil servant after civil servant has refused to concede the point.

All government witnesses who have appeared to date have also expressed a lack of expertise to analyze the mountains of subsidence data collected and compiled yearly by the Canadian Centre for Geodetic Engineering (CCGE) at UNB.

Since 1989, the CCGE has had a mandate to monitor the movement of the land over the mine workings at Penobsquis. These measurements and their reporting are now required by many jurisdictions including New Brunswick.

The CCGE has never had a mandate to analyze their data in terms of the effects of the land movement on people and residences, and on associated services like water wells and septic systems.

No government witness to date has read or attempted to analyze these reports, which have been compiled since 1989 and which document very precisely the land movement above the mine. Government witness after government witness has deflected responsibility for monitoring social impacts onto other departments while expressing no knowledge of any individual within government with the expertise to do the monitoring and analysis.

It is interesting to note that the government of the State of New South Wales (NSW) in Australia has established a Mine Subsidence Board (MSB) whose sole mandate is to handle issues of mine subsidence and its mitigation with regard to impacts on people and their lives.

The board has all the human and technical expertise required to analyze land movement due to mine subsidence. The mandate of the board includes power to resolve damage claims as well as to design building codes and construction methods to avoid the very difficulties currently being contested at Penobsquis.

Under the NSW MSB, there is no need for the expensive, traumatic and arguably prejudicial quasi-judicial mine hearings implemented by New Brunswick.

Failure to embrace a proven effective and efficient model of mine subsidence regulation is particularly damning of the New Brunswick government, which claims to follow happenings in other jurisdictions to guide its regulatory policies with respect to mining and gas exploration.

Given the claimed monetary benefit of the potash resource in New Brunswick, it is curious that the government cannot find the money to provide justice for the Citizens of Penobsquis in an equitable, fair and efficient manner.

Lawrence Wuest is a sculptor and forest ecologist. He is the designer and creator of the sculpture symbolic of the New Brunswick Human Rights Award.