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Lou Douros: Will Ben Mossman be Convicted in Canada?

Independent filmmaker, Lou Douros, spent months tracking and attending Rise Gold CEO, Ben Mossman's, trial in Canada. His lengthy opinion piece is very revealing.


The first of a three-part opinion piece was published in The Union on April 25, 2023. The full text of all three sections is included below.

 

April 25, 2023


I’m an independent filmmaker. I work largely in nonfiction formats, relying on doubts to propel a story forward. There’s a strange mix of vision, obsession, and luck in my business. For a film I’ve been developing called “Shafted”, I wanted to understand Rise Gold’s proposal to reopen the Idaho-Maryland Mine. My experience has proven that when you look for stories, you most often find people.


This is where my journey began. A year ago, I reached out to Rise Gold’s CEO, Ben Mossman. It was my first invitation to subject matter experts requesting an interview for a film about the conflict here in Nevada County. At the time, I only saw opposition to Rise Gold. I’ve since learned that there’s a clandestine population that thinks a gold mine here is a pretty good idea. My request went unanswered by Mr. Mossman. Instead, Jarryd Gonzales, Managing Principal of Good PR Group, took a call to weigh the opportunity. A week later, Gonzales declined the invitation on behalf of the company and wished me luck on the film.


There’s a lot of speculation about Ben Mossman - his most recent business failure resulting in criminal trials for alleged environmental misconduct and economic practices that ended in bankruptcy. I set out on a lonely path a year ago through a remote meeting link that connected me to a small provincial courtroom in British Columbia. Since April 2022, I’ve not missed a single hearing of R. vs. Mossman & Meckert, 29244-4C. What follows chronicles my pursuit to understand the story behind the man behind the mine.


My day(s) in court

Mr. Mossman is currently facing criminal charges for the environmental damage sustained on Banks Island while acting as the CEO and Mine Manager of Banks Island Gold Ltd. I observed the presentation of evidence, witness testimony, and argument. In 2015, inspectors reported 300-400 meters (around four football fields) of significant sedimentation in one location and unpermitted dumping of tailings in another. Meanwhile, samples taken approximately eight months earlier indicated deleterious contaminants were released by the mine into the environment.


Neither legal team disputed the fact that there was a spill; that much was obvious. Never mind that the “sediment and blow-down” appeared to the inspectors to have “occurred over a long period of time”. Unsurprisingly, this case pivoted on who was liable for the crimes.


Over the past year, Ben Mossman attended only once in person in the courtroom in Prince Rupert, B.C. for his testimony and cross examination. His occasional remaining appearances were accessed via the same remote link I used. For the balance, his attorney appeared as agent for Mr. Mossman.


Nevada County residents have expressed intense curiosity about the contents and potential outcome of the Mossman trial in British Columbia. They want to know who is the Canadian CEO of the Idaho-Maryland Mine? They’ve asked me about the extent and seriousness of the criminal offenses, the regulatory violations, their consequences, and what they might portend for Nevada County if Ben Mossman reopens the Idaho-Maryland Mine. I’ve never been a gambler. When playing Settlers of Catan, I always buy sheep when bricks would be smarter. I know little to nothing about asbestos and arsenic prevalent in serpentine rock. But when I review what I’ve heard in the courtroom and seen in content like the now-disabled banksislandgold.com website, it would be irresponsible to keep it to myself.


Setting the stage

In 2010, Ben Mossman and one other partner, Jason Nickel, set out to reopen the once productive but abandoned Yellow Giant Mine in British Columbia. The following year, Banks Island Gold, Ltd. (BOZ) went public on the Canadian TSX Venture Exchange, with an initial public offering of $1 million CAD.


Over the next 5 years, Mossman and Nickel went on to raise the additional millions in capital it would take to bring the abandoned mine into production. Mr. Mossman recruited more than 100 employees, many of whom were unskilled members of the First Nations Gitxaala (pronounced “Kit-Kat’la”) tribe, promising average wages three times higher than what they might make elsewhere. He built and maintained a village to house his workers; roads, a helicopter pad, a boat dock, and most importantly, extensive industrial mine works in preparation for full-scale production at three different sites on the pristine Banks Island. An on-island emergency medical facility was required in the event of job-related injury for workers rotating on two-week intervals. Meals and sanitation, diesel generator power, fuel, food, and transportation were all necessary just to get crews to and from the mine portals. A buddy system kept the workers safe from an active population of wolves that lived off the plentiful prey surrounding the camp.


Mossman the boss man

From the start, the Banks Island Gold corporate formation and eventually the day-to-day mining operations were under Ben Mossman’s control as Director, CEO, and Mine Manager. He applied for the permits. He leased the mineral rights in his own name, then transferred them to the company. He negotiated with the many vendors required to sustain his work force and extract and process ore in this remote location. Mossman’s institutional knowledge was fundamental in filling out the board of directors and org chart with the most expert talent he could find.


The British Columbia Ministry of Energy and Mines issued three MX exploration permits allowing 10,000 tons of bulk sample processing for each of the “Bob”, “Discovery”, and “Kim” mine zones, and a Major Mines permit (#241) for the primary “Tel” portal. During the trial, “bulk sample” was specifically defined to only include the targeted mineral deposits. The MX permits allowed an unlimited amount of excavation to reach the bulk sample, hopefully containing the gold. It’s important to note that everything pulled out of the ground needed to be handled in accordance with permits.

 

" The unpublished text follows. "


Not long after building out the facility, Banks Island Gold announced a declaration of commercial production in January of 2015. And that’s when it all went wrong.


Not all that is gold, glitters…

Just five months later, in June of 2015, the company’s safety manager sent an anonymous complaint to the British Columbia Ministry of Mines. The report included photographic documentation of numerous worker health and safety violations that he had observed and attempted to mitigate while working at the mine site.


Improperly stored fuel posed a fire hazard. The mine’s ambulance was missing first aid supplies. After workers complained of headaches, the safety manager discovered a generator chugging carbon monoxide into a nearby air compressor that supplied oxygen to underground workings. Later, CO sensors were allegedly disabled for disrupting productivity. Workers blamed Tessa Brinkman. Described in the trial as Mossman’s second-in-command and now, as I understand, his wife. Escape ladders were blocked by pipes, the list rattles on... The report was damning, but there was something that really caught the attention of the inspectors.


Photographs showed sediment and mine waste flowing into the sensitive riparian environment of Banks Island. Images included other permit violations; cement trucks pumping mill tailings into a pit formed by collapsed portion of the Bob site. The complaint inferred that the concerns reported to Ben Mossman, the mine manager, were met with inaction.


The anonymous tip elevated inspectors’ planned visit to the mine to priority status. Inspectors from the British Columbia Ministry of Energy and Mines, Environment Canada, and a government conservation officer made two visits by helicopter, a week apart, to Banks Island in July of 2015 to inspect the site. It didn’t take long. The inspectors reported under oath that they could see the spill from the air as the helicopter circled in to land.


They found an installed pipe emitting mine sediment up to 6” thick and contaminated water 300-400 meters into a creek, wetlands, and a small lake. Observing the spills and other violations of the mining permits, the government agencies shut down the mine. Shortly thereafter, the British Columbia Securities Commission issued a “Stop Trade” order. Rather than cleaning up the spills and mitigating the safety risks, the board of directors suddenly resigned. Mossman was left to manage bankruptcy, lay-offs, investor, and creditor communications.


The employees, including the First Nations Gixtaala, were left jobless and approximately 170 individuals, local supporting businesses, and other creditors, were left with a total of $15 million of unpaid bills. The site was abandoned, and Mossman and two colleagues faced initial criminal charges for failing to report spilling pollution into fish-bearing water, unpermitted activities, and exceeding toxic waste limits. The British Columbia government charged them with dozens of counts of safety and environmental violations.


Initially, all but two charges were dropped, but the case was appealed by both parties and eventually was heard by the B.C. Supreme Court. After a legal process spanning several years, a new trial was ordered which commenced in April of 2022, beginning with “voir dire” hearings to determine what evidence was admissible.


Prince Rupert Provincial Court, Room 200

April 14, 2023. Following the voir dire decisions, Prosecutor Geoffrey McDonald for the government of British Columbia, the “Crown”, argued in his final submissions to the court that the mine manager bears liability and responsibility for criminal action or negligence by a mining company that endangers public or environmental health. He held that a corporation should not be allowed to hide behind a bankruptcy after failing to protect the public. Mossman’s defense team, Mr. Chilwin Cheng and Ms. Janessa Mason, argued that the corporation, the now-defunct Banks Island Gold, Ltd., was the liable party and that Mr. Mossman bore no responsibility for the operational decisions.


The trial series began in 2015 and has exposed many issues related to Charter Rights (Canada’s equivalence to our Bill of Rights) and due process. The Hon. Judge Patterson of the provincial court in Prince Rupert, B.C. is scheduled to read his final judgement and publish it with the voir dire reasons on June 19, 2023.


What I’ve learned from the trial

Regardless of Judge Patterson’s decision, Ben Mossman’s years on Banks Island raise serious questions for Nevada County’s decision-makers. He may be found personally liable and sentenced to time in prison. Or, he might be spared, leaving the empty husk of his prior company hanging from the gallows of liability. Nevada County’s Planning Commission and Board of Supervisors would be wise to study the whole of what happened at the Yellow Giant Mine.


Mr. Mossman’s pitches always include a kind of dog whistle for his potential investors. “Nevada County”, he says, “is the lead agency for the permitting process. It’s not the state and not the federal government.” The secret message doesn’t require a decoder ring to figure out. It’s been eighty years since the Idaho-Maryland was part of a mature, knowledgeable mining culture. Investors in junior mines have lost millions because of government meddling. Nevada County is the perfect soil from which to reap mining’s most abundant treasures unabated.


Using doubt as a lever to peer under the rock, here are some take-aways from my weeks as a virtual visitor in a small provincial courtroom in British Columbia.

Regulations

Canadian statutes ensure that mine owners and corporations operate responsibly, as governed by the Mines Act, the Waters Act, the Environmental Management Act, and the Fisheries Act. The strict liability placed on the mine manager is intended to threaten handcuffs for anyone who might be tempted to acquiesce to criminal conduct. But what will govern a mine in Nevada County, a local government that has no working memory of ore extraction? Do our statutes deeply and specifically address the details of modern mining, or do they leave gaping holes through ambiguous and nearly unenforceable terms? A pirate code, more… guidelines, than actual rules.


Regulators

Statutes are only as effective as the agencies that enforce them. And in British Columbia, where mining has continued uninterrupted for centuries, multiple agencies at least try to ensure accountability specific to mining. While environmental managers in B.C. have been steeped in the complexities and risks involved in mining, Nevada County’s expertise is in writing permits for rooftop solar and deck additions. So, who will have our backs if Rise Gold, vastly larger than Banks Island, racks up millions in debt and trips over mismanagement of a complex business. As history is wont to repeat, would Mossman find the best attorney money can buy to incarcerate a nonhuman entity drained of its cash as he looks to the next frontier in resource extraction?


Expert Analysis

Scientific reports and expert analyses don’t solve problems. Scientists can try to describe what happened in the past. Analysts can model potential future outcomes to quantify risk. Compared to B.C., Rise Gold relies heavily on non-mining-specific environmental laws in addition to scientific reports to claim it will ensure public safety. Presumably, Mr. Mossman published the same expert analysis and proformas for investors and inspectors before reopening the Yellow Giant Mine. Ironically, it was science that quantified the resulting damage to the environment. The judge will only decide who is responsible for something everyone admits was a crime.


Job Security

Rise Gold has promised sky-high wages as long as they’re in business. When a Grass Valley mine failed in 1940, there were any number of local operations still hiring. Gold was like that back then. Since the 1970’s in Nevada County, talent from the Bay Area put on the Grass Valley Group’s “pinecone handcuffs” and relocated here. Now, there are engineers who regularly entertain valuable offers from within our new economy without relocating, missing a car payment, or their dream vacation. Even Banks Island Gold workers could apply at another mine in B. C. Where will the former Rise Gold miner go for work?


Payroll

The promises Ben Mossman made to starry-eyed workers in B.C. are strikingly similar to Rise Gold’s Facebook blitz targeting Nevada County’s young men. The 100 or so mostly male workers on Banks Island never dreamed they’d be unemployed inside of a year. Many of them never reached their first “$100,000 average annual salary”. I wonder if they received the severance package listed in the unsecured creditors chart or if they had to foreclose on their first-time home purchase. Did they have to sell the new truck they bought to avoid their own credit hit?


Economic Growth

Banks Island Gold’s board of directors all fled within months of the spill. The tally of creditors, including severance packages and vacation pay, and local businesses who gambled on Mossman’s projections approached $15 million. Furthermore, the company’s bond of $420,000 didn’t come close to covering the costs of environmental cleanup. Canadian taxpayers inherited a rusting industrial wasteland, gaping flooded caverns that were once mine portals, deforested roads-to-nowhere scars, discarded fuel barrels, and unmeasurable seepage into the ocean. Can Nevada County sustain a similar hit by a substantially larger Rise Gold collapse?


It would be one thing if we were being told, “this time it’ll be different”. A little humility goes a long way. But that’s not the message coming from Ben Mossman, not even from Rise Gold or Jarryd Gonzalez. Their message is “trust us, it’s all going to be fine”.


There are proponents on social media who have tried to wave off the environmental and safety concerns under Mr. Mossman’s watch, minimizing what they call “a little bit of mud”. But how could something so small could devastate such an otherwise intelligent and well-funded operation? It doesn’t add up. Not even the Crown Prosecutor, Geoffrey McDonald or Chilwin Cheng, Ben Mossman’s, attorney denies the presence of the environmental disaster. They’ve lived with this story for almost a decade. No, the matter currently in The Hon. Judge Patterson’s hands is, who did this? Who is liable? He will depend on specific laws and active regulators who guide thousands of active mines to operate profitably and safely. Most of them fall out of compliance at times. Most of those recover as a result of good management and disciplined practice.


There aren’t thousands of mines under consideration here. There’s only one. If California’s laws are even slightly unclear about who is liable for keeping all of us safe from the Idaho-Maryland Mine, it’s the doubter in me that says Ben Mossman will likely make sure it isn’t him.


Lou Douros, Grass Valley


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