Vancouver Island community wants government held liable for ship-breaking pollution

A Vancouver Island community long frustrated by a ship-breaking operation leaching toxic heavy metals into the ocean is pitching a legal argument that the provincial government may be liable for pollution violations. 

Union Bay residents are calling out provincial and federal regulators for failing to shut down Deep Water Recovery, a company dismantling ships for years on the shoreline of Baynes Sound, said Marilynne Manning, vice president of the Concerned Citizens of Baynes Sound (CCOBS).

Pollution from the large-vessel dismantling operation is a concern for human health and the environment, on land and in water, Manning said. The sensitive area, she added, is also home to the last commercial herring fishery on the coast and half of B.C.'s shellfish farms. 

The province has issued 10 warnings, three advisories, a pollution abatement order and a fine of $500 to the company but ship-breaking activities continue. 

Manning said Environment Canada and Fisheries and Oceans Canada (DFO) have also failed to take any strong steps to protect fish habitat since the company began operations in 2020. 

Province has become the polluter

CCOBS recently hired lawyers to examine and report on provincial and federal oversight of the ship-breaking problem. 

The legal analysis suggests the province — as the landlord that issues foreshore leases — may be legally to blame for any ongoing pollution due to its tenant’s violations. 

When the province issued the lease to Deep Water Recovery, it never consulted with community residents or area First Nations. The Comox Valley Regional District launched a civil suit against Deep Water Recovery in B.C. Supreme Court to try and stop the ship-breaking operation, Manning said. 

“We feel completely and utterly abandoned,” she said, noting she lives immediately next door to the ship-breaking site. 

Josie Osborne, NDP MLA for Mid-Island Pacific Rim, said addressing the problems at the Union Bay ship-breaking operation is her “core priority.” 

She stressed the need for unified action between multiple levels of government that hold distinct responsibilities in addressing the issue.

To avoid finger-pointing and blame-shifting by various regulators, Osborne said she’s helped coordinate local governments, various ministries and federal departments to collaborate.

A working group has been created with staff from different ministries together with area First Nations to address the problems with the ship-breaking operation, she added.  

“I think this is a very positive move forward,” Osborne said, adding she will continue to press the issue with the new provincial ministers for Environment and Parks and Water, Land and Resource Stewardship. 

“I’m asking them to use every tool that they have in their toolbox to make sure pollution is not happening and all laws and regulations are being followed.” 

Canada’s lack of ship-breaking regulations ‘absurd’

Canada is a “nightmare” when it comes to ship-breaking regulations, said Gord Johns, NDP MP for Courtney-Alberni. 

There are no federal regulations specific to ship breaking to protect the environment or human health, said Johns, noting he’s repeatedly raised concerns about the Baynes Sound operation with the Liberal government. 

“It’s absurd,” Johns said.

“I can’t think of another jurisdiction in the world that allows a massive ship to be broken apart on the shore.” 

Ship breaking or recycling needs to be conducted in a regulated dry dock to protect workers and ecosystems where hazardous substances like toxic paints, heavy metals, oil products and asbestos can be assessed and contained, Johns said.  

“We’re asking for the government to bring forward regulations like the European Union and the Hong Kong Convention on ship recycling,” he said. 

No excuse for ‘lackluster’ enforcement

Regardless of the lack of ship-breaking regulations, it's a myth that provincial regulators can’t take any action, said environmental lawyer Carla Conkin, who works with CCOBs and helped with their legal report. 

The culpability for ongoing problems and pollution at the ship-breaking operation doesn’t lie with the company alone, she noted.  

It’s also a fallacy the provincial and federal regulators can’t take any action due to the absence of ship-breaking rules, Conkin said. 

BC’s Environmental Management Act and the federal Fisheries Act have regulations that allow authorities to take decisive, meaningful action, Conkin said. 

The lack of a regulatory framework for ship breaking doesn’t excuse the lackluster enforcement of existing laws, CCOBs noted in a press release.

The province may also be in violation of the Fisheries Act for polluting fish habitat and failing to act or notify the appropriate federal authorities, Conkin added. Letters have been sent to the relevant regulators and ministries about the findings from the CCOBs legal analysis, she said. 

The province has requested and received an updated management plan from Deep Water Recovery, the Ministry of Water Land and Resource Stewardship (WLRS) said in an email. 

Monitoring of the ship-breaking operations will continue and the ministry expects the company “will continue to work diligently to bring the site into compliance.” 

When asked if WLRS plans to pull the company’s lease, the ministry said it “provides an opportunity for the province to monitor activities and address concerns at the site.” 

Environment and Parks continues to enforce the pollution abatement order issued to the company, which is under appeal, the ministry said in an email. 

“Federal and provincial staff are regularly visiting the site to inspect its operations and ensure they are in compliance,” the ministry said. 

 If the company doesn’t meet the requirements of the order, the ministry will take additional action, and a fine is being considered. 

Deep Water Recovery’s latest ministry warning on Nov. 21 tied to the pollution order noted the company failed to meet pollution sampling and  monthly reporting requirements and has a month to fix the issues. 

If it doesn’t, the company may face a maximum administrative fine of $40,000 — or even legal charges that on conviction could result in fines up to $300,000 as well as six months in jail. 

Rochelle Baker / Local Journalism Initiative / Canada's National Observer