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Canada’s Largest Environmental Lawsuit a Victory

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Issue: 70 Section: Canadian News Geography: Ontario Port Colborne Topics: Mining, pollution, law

July 12, 2010

Canada’s Largest Environmental Lawsuit a Victory

Ontario court rules Vale must pay $36 M to Port Colborne residents

by Tracy Glynn

Diana Wiggins and Ellen Smith outside the Vale refinery that has contaminated their homes and their city. Photo: Diana Wiggins

FREDERICTON—Almost 10 years after Wilfred Pearson, a retired truck driver from Port Colborne, Ontario, signed his name as the lead plaintiff to the largest environmental class action lawsuit filed in Canadian history, the verdict is in—and it is in his favour.

Port Colborne residents claim that their property values were diminished by the levels of nickel emitted from Inco's refinery. On July 6, 2010, Ontario Supreme Court Justice J.R. Henderson sided with the residents and awarded more than 7,000 households in Port Colborne a total of $36 million. Households in the Rodney Street area, in the shadow of the nickel refinery, were each awarded $23,000 while those living on the east side of Port Colborne were each awarded $9,000, and the west side, $2,500. Vale (formerly Inco) has said the company will appeal.

"It has been a very long 10 years. People said to me the day we launched this lawsuit that you can't fight large corporations and expect to win. They were wrong. I hope this court victory shows people can stand up and fight for justice," said Diana Wiggins, who originally called the Canadian Environmental Law Association, setting the lawsuit in motion.

The lawsuit’s initial defendants included Inco, the Ontario Ministry of Health, the Ontario Ministry of Environment, the Niagara Regional Health Department, the Niagara District School Board, the Niagara Catholic School Board and the City of Port Colborne.

In February 2001, Pearson was the lead plaintiff on the lawsuit of 8,000 plaintiffs who originally sought $750 million in damages to health, property value and quality of life. Although that suit failed in 2002 to be certified, it was subsequently modified to focus on devaluation of property. The suit was certified on November 18, 2005. The plaintiffs settled out of court with all defendants except Inco. In late June 2006, Inco’s efforts to stop the class-action lawsuit were dismissed by the Supreme Court of Canada. The lawsuit that resulted in the July 6 verdict went to trial in October 2009.

Eric Gillespie, the lawyer representing the Port Colborne residents, said, "Our clients are very pleased with the decision. It's a very significant award and it's been made to the entire community."

The INCO chemical pond in Port Colborne. Inco dumped electrolyte nickel or "green liquor" into an aquifer which fractured; by 2000, it was seeping into Lake Erie and surrounding areas.
Global Day of Action Against Inco, October 2003, on the island of Sulawesi, Indonesia. The people marching were being squeezed off their land by PT Inco, a subsidiary of Vale. The company, enjoying superior land purchasing power, was expanding its operations. Photo: Yayasan Tanah Merdeka (Free Earth Foundation)

Inco opened the Port Colborne nickel refinery in 1918, cashing in on the post-war demand for nickel. The refinery was a major employer in Port Colborne for decades after; the workforce peaked at about 2000 in the 1950s. The nickel refinery stopped refining nickel in 1984. Today, fewer than 200 people work at the plant that refines cobalt and other precious metals.

Wiggins and Ellen Smith, two Port Colborne mothers, founded Neighbours Helping Neighbours in 2001 to tackle the nickel contamination problem in their city. Smith became the lead plaintiff in the lawsuit when Pearson's health problems became too severe for him to continue.

Inco became one of the main landowners in the area in what many believed was an apparent attempt to buy contamination concerns, beginning in the 1960s. Some properties along Rodney Street, deemed to be the most contaminated, were remediated by Inco.

Residents feel that the Inco refinery is responsible for the heavy metal contamination of their soils, and Inco has admitted to contamination by nickel, copper, cobalt and arsenic. An estimated 20,000 tonnes of nickel oxide, a carcinogen, was spread over the Port Colborne area during the refinery's operation. In some areas of Port Colborne, nickel exceeds 20,000 parts per million (ppm). Ontario's Ministry of the Environment considers the safe upper threshold for nickel in residential soils to be 200 ppm.

Wiggins became aware of the extent of the contamination after talking to a friend who had been hired by Inco to pump out contaminated soil. Contaminants were said to be escaping into the ground water and wells. For decades, Inco had been dumping electrolyte nickel or "green liquor" into an aquifer below the Rodney Street neighbourhood. Over time, a fracture developed in the bedrock. By 2000, this "green liquor" was seeping into Lake Erie and surrounding areas.

Wiggins introduced herself to Smith after reading a story about her fears of property contamination in the local Tribune. In June 2000, Smith and her partner Craig Edwards requested that the Ministry of Environment test the soil on their Rodney Street area property. Smith and Edwards were astounded by the results. Their property contained between 14,000 and 16,000 ppm nickel, and over 600 ppm lead.

Smith, who is now the mother of two teenagers, wrote in 2003, "I have enjoyed watching my children play with their trucks and cars, making roads and bridges in the dirt. I thought that some day they might wish to become engineers. We have had numerous rounds of baseball, catch or Frisbee in the backyard. We spent warm summer days at the ballpark. Now the children's play areas are restricted. The ballpark is chained shut. They can't explore their world without barriers. They can't even enjoy the surroundings of their own home. They can no longer be the children they were."

Smith and Edwards paid off their home and property only to later find out their soil was contaminated. Smith said, "How can we sell this house and property to another starting family when we know what lurks beneath the ground and in the walls? As a mother watching her young children grow, I am sickened and at a loss for words to explain the feeling of not knowing what the future holds for my children. As a Port Colborne resident, I feel personally violated by those we trusted to protect our environment and our health and safety."

Wiggins recalls the moment in the year of 2000 that sprang her into action. "My son would come home from school quite often complaining of severe sinus headaches and stomach aches. He also had rashes on his body. At the beginning of these ailments, I did not suspect there was an environmental problem. I had my son tested for nickel in his urine. But when I went to my son's pediatrician for the test results, he was elusive. The doctor wouldn't look me in the eye, stood with his back to me and stated that he 'wasn't allowed to discuss this issue' with me."

Wiggins discovered that Inco had purchased a property and sold it to the Niagara District School Board.

"The original landowners farmed the [property]. It had been said that the lady of this house suffered from a severe skin rash, so severe that it was difficult for her to work on the land. A few years after Inco purchased the land from the couple, the Niagara District School Board acquired it and built Humberstone School," said Wiggins.

Wiggins spoke with various specialists in the environmental and health fields. "As time went on and more information started surfacing, it literally was making me feel sick to my stomach every time I put my son on the bus," said Wiggins.

Wiggins and Smith reluctantly joined the Community-Based Risk Assessment (CBRA) process—a process that was supposed to determine the risks of the refinery contamination and a process to clean up the contamination.

"Getting quite discouraged, I started to attend their meetings in September 2000. As time went by, I became even more discouraged as it was becoming increasingly clear that nothing was going to be done to ensure the safety of the people living with such high levels of contamination," said Wiggins. "I doubted this company-sponsored process. Here we have a known contamination in our city. However, it is still just sitting here for children to play in, people to grow crops in, for us to breathe."

The suppression of a phytotoxicity report from her son's school and soil test results in the Rodney Street area worried Wiggins. She also learned that the Ministry of Environment's office had been holding strategic communication meetings on how to deal with Port Colborne residents and their concerns about environmental contamination.

Smith remembers uncovering documents that demonstrated the government withheld information about the refinery's environmental problems. Reading each page made Smith push harder for the truth and for justice.

Nasal cavity cancers, linked to exposure to nickel oxide, have claimed the lives of several refinery workers, some before they received their first pension cheque. Surviving family members blame the refinery for the loss of their loved ones.

In November 2000, the community was shocked to hear government scientist Al Kuja say, "There's areas where every single household has someone sick, every single family, some member has something—cancers, rashes, leukemia... Personally I think that something is going on."

In early 2001, soil at Humberstone School tested at levels of 1,200 ppm of nickel.

"I spoke with the school representatives, trying to get them to do something to protect the children. At one point, I had a conversation with a Niagara School Board staff member in charge of the safety and wellness of the children. He said, 'If it were me, I would just move my child to another school.' I responded, 'That would be fine for my son... but what about the other 200 children in the school?' It appeared to me that authorities were not explaining to parents what the contamination statistics meant, so how could parents make an informed decision concerning the health risks for their children? There were children with quite severe skin rashes and ongoing headaches and stomach aches."

Wiggins pulled her son from Humberstone School in February 2001 to demand measures be taken to protect the children in the school. The school obliged and a week later her son was back at school with new rules: students were not allowed to play on grass, they had to wash their hands when they came in from the outside, and windows in the school were to to be kept shut when farmers were working on the land. She enrolled her son in a different school in the fall of 2002. The Humberstone School was shut down in 2003 and demolished in 2008.

The women, Pearson and others from Port Colborne have demonstrated outside Inco’s shareholders’ meetings in Toronto, holding signs such as, "Inco Nickel Found In My Kitchen, Attic And Left Lung." One of the more memorable shareholders’ meetings was in 2003 when Port Colborne residents handed out what they called "dirt bags"—bags of their contaminated soil—to Inco shareholders.

Both women monitor Vale’s problems at home and abroad. In 2003, Wiggins motivated others to organize a global day of action against Inco. In October of that year, people around the world demonstrated and held public presentations, film screenings and vigils in Newfoundland, Ontario, Guatemala, Indonesia and Kanaky-New Caledonia in the first global day of action against a Canadian mining company.

Vale, now under Brazilian ownership, has provoked the creation of a network determined to coordinate actions among communities affected by Vale in Brazil and worldwide. Striking Vale workers in Canada recently visited Vale-affected communities in Brazil and Indonesia.

Tracy Glynn sits on the Board of the Dominion/Media Co-op and is an organizer of the New Brunswick Media Co-op. She wrote a masters thesis on the the environmental and health problems of Inco's smelter and mines in Indonesia. She sits on the Board of Mining Watch Canada and is co-editor of the website MinesAndCommunities.org.

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