CHAPTER 10 DEALING WITH MINING LEGACY - SOME CANADIAN APPROACHES1

• Jurisdiction: Derecho Internacional

Mining and Oil and Gas Law, Development, and Investment - Book 1
(Apr 2007)
CHAPTER 10
DEALING WITH MINING LEGACY - SOME CANADIAN APPROACHES¹
Diana Valiela
Christopher G. Baldwin
Attorneys
Lawson Lundell LLP
Vancouver, British Columbia, Canada

DIANA VALIELA

Diana is a partner at Lawson Lundell and a member of the Environmental, Mining, Energy, and Northern Practice Groups and has a very active practice concentrating on environmental and natural resource law and related issues in administrative and First Nations matters. Environmental impact assessment and permitting of proposed mine projects and associated administrative tribunal proceedings comprise a major part of her current law practice. In addition to her law degree, she has bachelor's, master's and Ph.D degrees in biological sciences. Prior to joining Lawson Lundell, Diana worked as an environmental scientist at Rutgers University, at the University of British Columbia, in her own consulting firm, and, for nine years, at Environment Canada, Pacific and Yukon Region. Diana is a B.C. Registered Professional Biologist (R.P.Bio.). She was the Canadian chair of two committees under the 1985 International Joint Commission's Flathead River International Study Board, which assessed the impacts of the proposed Cabin Creek Coal Mine on the Flathead River in the U.S. and Canada. While with Environment Canada, she reviewed mines proposed for B.C. and the Yukon. She was a member of the National Energy Board and of the Federal Public Review Panel on the moratorium on B.C. offshore oil and gas.

CHRISTOPHER G. BALDWIN

Chris Baldwin is the leader of the Mining Group for Lawson Lundell LLP, which has been ranked in the top three corporate law firms in Vancouver by the Canadian Lexpert Directory for 10 consecutive years. Chris advises on acquisitions and dispositions of mines and mining companies and on project development throughout Canada and the world, the exploration for minerals and development, construction and financing of mines (including diamonds, coal and uranium), royalties, marketing contracts, impact benefit agreements with Aboriginals and environmental issues. His practice is expanding to include acting as an expert witness. He is a past member of Board of Trustees of Rocky Mountain Mineral Law Foundation and Form 5 Revision Committee and currently the reporter covering Canada for the Foundation's Mineral Law Newsletter. He attended the University of Alberta (B.A. 1973), the University of Toronto (J.D. 1976) and is licensed to practice in British Columbia (1977), Northwest Territories (1994) and Nunavut (1999).

I. INTRODUCTION

In this paper we discuss approaches that have been used in Canada to identify and foster private sector, public and aboriginal participation in dealing with mining environmental liabilities and orphan sites.² To a large extent, Canadian and international laws dealing with environmental regulation, public consultation, and aboriginal rights impose obligations on mining companies and on Canadian governments to provide for public and aboriginal participation in processes affecting the environment and natural resources. In addition, in 2002 the National Orphaned/Abandoned Mines Initiative ("NOAMI") was established as a cooperative program to assess key issues and recommend collaborative approaches to rehabilitation of orphaned/abandoned mines in Canada.³ NOAMI is guided by an Advisory Committee with representatives of the mining industry, federal, provincial and territorial governments, environmental non-governmental organizations, and First Nations.

II. CANADIAN LEGAL AND POLICY FRAMEWORK FOR DEALING WITH MINING LEGACY

This section covers federal, provincial, and international legal and policy instruments that impose obligations on private parties and governments to clean up abandoned mining sites. Many statutes and regulations dealing with natural resources and environment require public notification and opportunities for public comment and participation.

A. Federal Statutes and Regulations

The Constitution Act⁴ delineates the heads of power given to the federal and provincial governments in Canada. The provincial legislatures are given legislative power over, among other things, exploration, development, conservation and management of non-renewable natural resources, the management and sale of the public lands belonging to the province, and local works and undertakings

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within the province. The federal heads of legislative jurisdiction relevant to mine clean-ups include fisheries, Indians, and lands reserved for the Indians. Neither level of government has been given exclusive jurisdiction over environmental matters; as a result, both federal and provincial governments have enacted environmental statutes. Some of the statutes at the federal level that may apply to the remediation of abandoned mine sites include the Fisheries Act⁵ and the Canadian Environmental Protection Act.⁶

The Fisheries Act regulates use of fish resources, fish habitat, and the quality of waters frequented by fish. In particular, sections 35 and 36 of the Fisheries Act prohibit harmful alteration, disruption and destruction of fish habitat and the deposit of deleterious substances in waters frequented by fish, respectively. As sediments and contaminants may be carried by runoff, leaching, and other processes from an abandoned mine and harm or contaminate fish habitat, the provisions of the Fisheries Act may apply. The Fisheries Act provides for officials to issue orders, directions, or lay charges for infractions; severe maximum monetary penalties and terms of imprisonment are available as punishment for those found guilty of these infractions. In addition, civil individuals can initiate prosecutions for violations of this Act. Where the government incurs costs for remediation, the Fisheries Act imposes liability for recovery of those costs on those responsible for the infraction or, in the case of deposit of deleterious substances, on those who at any material time had management, charge or control of the substance.

The Canadian Environmental Protection Act consolidates previous federal environmental protection statutes and establishes national standards for the control and management of toxic substances. Part 9 of the Act gives the federal cabinet broad authority to set regulations for the protection of the environment. The Act also provides for public involvement in the enforcement of toxic substance regulations. For example, under section 17, a Canadian resident who is at least 18 years of age may apply to the Minister for investigation of an alleged offence under the Act.

The Canadian Environmental Assessment Act may come into play regarding abandoned mines if a prescribed federal authorization, federal land, or federal funding is involved in the project, or if the federal government is the proponent of the project. Depending on the extent of assessment for a particular project, different degrees of public participation may be required.

The federal government is responsible for abandoned mine sites on lands under federal jurisdiction. For example, Indian and Northern Affairs Canada is the custodian of most federal lands in the North and through its Northern Contaminated Sites Program is responsible for managing contaminated sites in the Northwest Territories and Nunavut and for funding the cleanup of sites in the Yukon.⁷ Over 350 contaminated sites have been identified of which 37 are priority sites because of higher associated risks. One of the principles of the program is to promote Aboriginal and northern participation in the decision-making and remediation processes related to contaminated sites.

Under section 35 of the Canadian Constitution, existing aboriginal and treaty rights are "recognized and affirmed"; aboriginal peoples of Canada include Indians, Inuit, and Métis. Where aboriginal rights could be infringed by Canadian provincial and federal governments, such as by approving mining or reclamation activities, the government has a duty to consult and accommodate the concerns of the aboriginal group. The degree of consultation and accommodation required varies from

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notification to "deep consultation".⁸ There is a large body of case law regarding challenges to regulatory decisions alleged to have not complied with consultation obligations. Here we only touch on this topic, as it is beyond the scope of this paper to deal with this issue in detail; however, it must be considered as an important determinant of aboriginal participation in any natural resource activity in Canada. The need to consult and accommodate where aboriginal rights may be infringed has led to the general practice by proponents of major mining and other activities to sign Impact Benefit Agreements with potentially affected aboriginal peoples.

Further, as we will discuss below, in some cases modern land claims agreements between the federal government and aboriginal groups have established aboriginal institutions of public or self-government. These agreements are implemented by federal legislation, such as the Mackenzie Valley Resource Management Act and the Nunavut Waters and Surface Rights Tribunals Act, among others.

B. Provincial Statutes and Regulations

Canadian provinces have enacted legislation within their jurisdiction to regulate the practice of mining and to manage and protect the environment, which may apply to abandoned or orphan mine sites. The British Columbia Mines Act,⁹ for example, provides that the title of an abandoned mine reverts to the provincial government. Under section 17 of the Act, an inspector may cause work to be done on an abandoned mine to remove or alleviate danger to persons or property or to remedy pollution of the land or watercourses affected by the mine. The costs of such work are paid from the province's consolidated revenue fund and form a lien on the mine or mineral title in...