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R. v. Inco: The Importance of Metal Speciation

On July 23, 2008, the Ontario Court of Justice released its reasons in R. v. Inco Ltd.¹ a case which involved charges under section 30 of the Ontario Water Resources Act (OWRA) related to a discharge of mine effluent containing an elevated concentration of nickel and the failure to immediately report the discharge. In a well-reasoned and comprehensive decision, Justice Renaud dismissed both charges and provided valuable guidance on the test that is to be applied in determining whether metals are capable of impairing the quality of waters to which they are discharged. The Court accepted Inco’s argument that it is necessary to look at the amount of bioavailable nickel in a discharge, rather than the total quantity of nickel, to determine whether the discharge is capable of impairing water quality because it is only nickel that is bioavailable that is harmful.

This decision is the result of the third trial in the R. v. Inco Limited² case, which has finally reached its completion. The R v. Inco case, including the most recent decision, has established some important principles in environmental law. For example, with respect to investigations by Ministry of the Environment ("MOE") officers, the 2001 Ontario Court of Appeal decision in R. v. Inco established that once an MOE officer has reasonable and probable grounds to believe that an offence has been committed, the officer does not have the authority to compel an employee of the company to answer questions or produce documents without first obtaining a court order to that effect. That is, MOE officers cannot use the inspection powers of the Environmental Protection Act and the OWRA to build a case for prosecution.

As well, with respect to section 30 of the OWRA, the 2001 Court of Appeal decision clarified the test for determining whether water quality may be impaired as a result of a discharge. Section 30 of the OWRA prohibits the discharge of any material into any waters or in any place that may impair water quality. The Court of Appeal accepted a zero tolerance approach for a discharge of an inherently toxic substance (such as PCBs) but found that for a material which is not inherently toxic, it is necessary to consider the circumstances of the discharge in order to determine whether it contravenes section 30. In other words, the discharge of an inherently toxic material such as PCBs constitutes an offence under section 30 regardless of the amount and circumstances of the discharge. However, where there is a discharge of a material that is not inherently toxic, the entire circumstances of the discharge must be considered in order to determine if water quality may be impaired.

In its July 23, 2008 decision, the Ontario Court of Justice followed the Court of Appeal’s test and concluded that nickel is not inherently toxic and therefore that the circumstances of the discharge had to be considered in order to determine whether there was a violation of section 30. Further, the Court found that:

• nickel speciation is an important consideration as it is only nickel that is bioavailable that is harmful;
• there is good reason to question the usefulness, the significance and the fairness of testing total metal concentration in samples when the Provincial Water Quality Objectives or any other objectives that set limits are based on bioavailable metal;
• credible and persuasive evidence supported Inco’s submission that total nickel concentration, as an indication of potential to impair water quality, is scientifically meaningless and based on outdated methodology; and,
• distinguishing between metal speciation is essential to a proper assessment of risk of impairment of water quality.

The Court’s decision is in keeping with a growing international practice that rejects the old approach of considering the "total metal" analysis and instead looks at the amount of metal that is dissolved and bioavailable and therefore capable of affecting organisms. Companies are often faced with the difficult task of determining whether a particular discharge has or may be a concern. In the case of discharges containing metals, this decision of the Court provides important guidance by concluding that distinguishing between metal speciation is essential to a proper assessment of risk of impairment of water quality.

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¹ [2008] O.J. No. 2963 (Ont. Ct. J.).

² See R. v. Inco Ltd. [2001] O.J. No. 2098 (Ontario Court of Appeal) for a summary of the prior proceedings in this case.