Khaled Abdel-Barr and Karen MacMillan of Lawson Lundell LLP recently contributed the Canada Chapter: The International Comparative Legal Guide to Mining Law 2020, Global Legal Group, 7th edition. Even though their disclaimer was intended for a global audience, it is also a useful reminder for Canadian readers, outlining that “Canadian mining law is location-dependent, and there are many, many locations: 10 provinces and three territories, each with its own laws, and within each province or territory areas within Aboriginal land claim settlement areas or reserves; areas in which the surface is owned by the Crown or by Aboriginal groups or privately; and areas in which the minerals are owned by the Crown or by Aboriginal groups or privately. Canadian mining law is also commodity-dependent, with different laws applicable to hard rock minerals, coal, industrial minerals, petroleum and natural gas, uranium, etc.”
Aboriginal rights are important across the Canadian mining sectors and regions, and in British Columbia they are integral. As Abdel-Barr and MacMillan point out it was the 2014 Supreme Court of Canada decision, Tsilhqot’in Nation v. British Columbia, “that provided the first declaration of Aboriginal title in Canada, over a limited area of land. The potential impact of the decision on mining companies remains unclear, given the very specific facts on which the decision was based. In certain circumstances the Crown owes a duty to consult with the Aboriginal peoples and to accommodate them where appropriate, even where Aboriginal rights have not been proven.
“The extent of consultation and accommodation required of the Crown will vary depending on the circumstances. The impact of consultation obligations and Aboriginal rights with respect to reconnaissance, exploration and mining operations rights will thus depend on the individual circumstances of a given case.
“In May 2016, Canada officially removed its objector status to the UN Declaration on the Rights of Indigenous Peoples and announced its intent to adopt and implement the Declaration in accordance with the Canadian Constitution. Partly in recognition of the UN Declaration on the Rights of Indigenous Peoples, the Canadian government recently launched a national engagement with Canada’s Aboriginal peoples to help develop a Recognition and Implementation of (Indigenous) Rights Framework. This framework, if and when implemented, would help ensure that the starting premise for all federal government action is the recognition of Indigenous rights.”
Closer to home in BC’s mining landscape there is also attention being paid to a new regulatory framework.
The BC Mining Law Reform
Network, set up in 2019, “represents nearly 30 local, provincial and national organizations from a wide range of sectors, including citizen and community groups, First Nations, academics, and social justice and environmental organizations.” https://reformbcmining.ca
James Clinton and R.J. Reid, of McCarthy Tétrault LLP, provide this overall summary of the Reform Network’s concerns and reports so far:
BC Mining Law Reform was created in May 2019 to push for certain changes in the BC mining regulatory landscape. They recently released a series of reports with recommendations that address, in their words, “serious shortcomings in British Columbia’s mining regulatory regime.”
The reports offer 69 recommendations that range from broad policy updates to small changes in current legislation. They include the adoption of free, prior, and informed consent for indigenous communities affected by mining projects and major changes to BC’s mineral tenure system. The recommendations place an emphasis on more powerful and active environmental management and a more aggressive regime for government and affected individuals to challenge natural resource companies for environmental damage.
THE FOLLOWING ARE NINE SIGNIFICANT RECOMMENDATIONS MADE BY THE GROUP TO REFORM CERTAIN ASPECTS OF MINING LAW AND POLICY:
ENVIRONMENTAL ASSESSMENT
BC Mining Law Reform recommends that the forthcoming regulations for the new BC Environmental Assessment Act include a requirement for stringent environmental assessments for all mines, for mining exploration activities when requested by First Nations or local communities, and for all major expansions of existing mines. They further recommend that the regulations ensure a fair and balanced process that includes ample and stable funding for environmental assessment participants and full consideration of perpetual-care costs. BC’s new Environmental Assessment Act is expected to come into force near the end of 2019.
MINERAL TENURE
BC Mining Law Reform recommends adopting a more discretionary approach to mineral tenures that would require landowner consent for mining activities and ensure conformity with the regional land-use plans of Indigenous and local groups. The network also recommends mandating “no-go zones” to protect all designated Old-Growth Management Areas, Wildlife Habitat Areas, and other sensitive areas.
INDIGENOUS GOVERNANCE AND MINING
BC Mining Law Reform endorses the concept of free, prior, and informed consent from the United Nations Declaration on the Rights of Indigenous Peoples. The network recommends implementation of free, prior, and informed consent of affected Indigenous communities for all mineral tenure, mining exploration, siting, and other activities, and further recommends establishing government-to-government processes for all stages of the mining, including prior to the environmental assessment stage. The new BC Environmental Assessment Act does not include processes that implement free, prior and informed consent as a veto right on the part of Indigenous groups, but rather incorporates a range of consensus-based and dispute resolution mechanisms into the assessment process, to allow for increased input and participation by Indigenous groups.
WASTE DISPOSAL AND MANAGEMENT
BC Mining Law Reform recommends reducing the number of existing tailings dams; moving away from wet tailing impoundments; adopting the Initiative for Responsible Mining Assurance (IRMA) Standard for Responsible Mining for waste management; and banning disposal of wastes into lakes, rivers, or oceans.
CLOSURE RECLAMATION AND ABANDONED MINES
BC Mining Law Reform recommends that mining companies be required to provide full financial security for independently reviewed reclamation costs before permits are issued. In transitioning, existing mines would be required to provide full security within two years. The organization also recommends establishing more definite standards and timelines with greater emphasis on independent review and community stakeholder involvement. Further, the network recommends the establishment of a rehabilitation fund that active mining companies contribute on a proportional basis, similar to what has been implemented in Western Australia.
WATER PROTECTION
BC Mining Law Reform recommends the adoption of the IRMA Standard for Responsible Mining water management standards, including full consultation with communities and stakeholders on critical water-related issues, with third party independent reviews. The network also recommends the prohibition of mines likely to require perpetual water treatment unless able to meet exceptional criteria.
MONITORING AND ENFORCEMENT
BC Mining Law Reform recommends establishing an independent mining compliance and enforcement unit with a mandate to protect the environment. The network also recommends cumulative fines for repeat non-compliance and implementing other revisions to the current fines and sanctions regime.
In terms of transparency and accountability to citizens, the network recommends the regular public posting of all mine environmental data, requiring the responsible minister(s) to provide written decisions for all denials and approvals of mining activities, and enabling private prosecutions and/or enacting citizen suit provisions for environmental violations.
PLACER MINING
BC Mining Law Reform believes the current regulatory regime for placer mines is inadequate. To improve the regime they recommend requiring environmental assessments for proposed placer mine operations, enacting a clear minimum riparian setback of at least 30 meters, and developing strong rules to control the impact of jade mining. The network also advocates for the repeal of section 3(c)(i) of the Placer Mining Waste Control Regulations that exempts certain regions from sections of the Environmental Management Act.
POLLUTER PAYS
BC Mining Law Reform endorses the polluter pays principle and recommends requiring mining companies to provide security for clean-up and reclamation and carry private insurance for all unplanned but probabilistic events. In cases where private insurance will not cover an event, the network recommends establishing a pooled industry fund. The network also recommends establishing an independent claims process to adjudicate disputes over third-party compensation for mine pollution impacts.
BC Mining Law Reform is made up of 30 local, provincial, and national organizations with leadership from the University of Victoria’s Environmental Law Centre. The objective of the network is to ensure mineral resources are managed and developed in a way that protects and sustains the environment while enhancing the social, cultural, and economic well-being of affected communities and all British Columbians.
Of relevance to BC Mining Law Reform’s proposals, on September 21, 2019 the BC government announced that it is seeking feedback from the public on proposed changes to the Mines Act. Such proposed changes include:
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Formally separate specific authorities and decision-making powers under the Mines Act to ensure authorizations and permitting are separate from enforcement and auditing powers.
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Formally establish an independent oversight unit with an auditing function
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Enhance compliance and enforcement provisions.