Environmental Mining Law And Policy in Canada

1 Mining S MANY FACESThe Canadian Institute for Environmental Law and PolicyEnvironmental MiningLaw And Policyin CanadaACKNOWLEDGEMENTSThe Institute would like to thank the International Development Research Centre for its assistance in thecompletion of this would also like to thank the reviewers of this report for their helpful contributions, particularly AlanYoung of the Environmental Mining Council of British Columbia. Any errors or oversights are, of course,the responsibility of the photograph of Luscar Ltd., Cardinal River Mine southwest of Hinton, in Alberta s Eastern Slopesnear Jasper National Park, by Sam Gunsch, CPAWS - further information on this report or the Canadian Institute for Environmental Law and Policy , pleasecontact us at (416) 923-3529, or by Colin Chambers, MA, Research Associate, and Mark Winfield, , Director of Research Canadian Institute for Environmental Law and Policy , 2000 ISBN 1-896588-42-5 CIELAP is an independent, not-for-profit Environmental law and Policy research and educationorganisation, founded in 1970 as the Canadian Environmental Law Research Institute for Environmental Law and Policy517 College Street, Suite 400, Toronto, Ont.

2 , M6G 4A2(416) 923-3529(416) 923-5949 report s origins are with an initiative launched by the Environmental Law Institute in 1995. The Pollu-tion Prevention in Mining in the Americas Project brought together Environmental law centres in the UnitedStates, Canada , Argentina, Bolivia, Peru, Mexico and Brazil to examine their national Environmental lawsrelated to the planning, design, operation and closure of metal Mining operations in the the high level of investment by Canadian Mining companies in Latin America over the past decade,and the Environmental and social impacts of these activities, the Latin American partners in this project wereparticularly interested in obtaining a description and assessment of the requirements in place in first phase of the project, the development of responses by the project partners, including the CanadianInstitute for Environmental Law and Policy (CIELAP)

3 , to a series of common research questions, wascompleted in fall of 1999 with the support of the Aid for International Development (USAID). Canada s International Development Research Centre (IDRC) which had launched a Mining Policy Re-search Initiative in Latin America in 1998, then agreed to provide resources to CIELAP to develop theCanadian responses to research questions into a publishable report, and to translate its key findings intoSpanish. This reflected the lack of comprehensive baseline information on Environmental law and policyapplicable to metal Mining in Canada , and the demand for such materials in Latin America and resulting study, Mining s Many Faces: Environmental Mining Law and Policy in Canada is intended toprovide an introductory overview of current Environmental laws and policies applicable to the metal miningsector, major Policy trends, and the politics of mineral development in Canada .

4 It also provides an assess-ment of the existing regime relative to the requirements of a fair and effective system for the environmentalregulation of metal Mining is our hope that this study will contribute to informed discussion and debate about the future of mineraldevelopment in the Americas, and its relationship to Environmental , social and economic Mitchell, Executive DirectorCanadian Institute for Environmental Law and Policy779999101010 PART TWOT11111112121313141414151717 PART THREET1919191920202020212122 TABLE OF CONTENTS PART ONEINTRODUCTION & ELEMENTS OF A FAIR Introduction: The Purpose of this Summary of Baseline Presumptions Informing the Elements of a Fair and Effective Mining on Exploration and Land of Impact of Mining on Mining Operations Permits, Approvals, Pollution Prevention andWaste to Ensure Industry Responsibility for Closure.

5 Remediation andReclamation of Abandoned to Stimulate Alternatives to Virgin-Metal Mining PART TWOTHE POLITICAL AND Policy ENVIRONMENT FOR Mining REGULATION IN The Big Picture Context For Mining In Federal Provincial Relations and Note On The Canadian Federal Powers Regarding Mines and Powers Regarding Mines and Environmental Harmonization Industry Mining and Aboriginal The Environmental Community PART THREETHE LEGAL Land Access and Mineral Ownership and Access to Mineral Owns Mineral Resources In Canada ? to Public Mineral is Mineral Exploration Not Permitted In Canada ? Establishment of New Protected Areas Where Mineral Claims Regulatory Controls on Prospecting, Staking and Exploration and Perspective On Land Access Perspective On Land Access The Windy Craggy Ways To Value A Environmental Assessment And Environmental Assessment Does CEAA Work?

6 And When CEAA Types of Assessment Under Environmental Assessment Exception The BHP Diamond Mine Monitoring Environmental Assessment Assessment And Joint Environmental Assessment Works The Cheviot Approval, Operating and Closure and Prevention And Control Closure Plans and Financial Abandoned and Orphaned Mine Monitoring and Columbia22232323232424242425252626262727 2828293030313232323334353637383839404040 4142424343444444454547486 / CANADIAN INSTITUTE FOR Environmental LAW & Public Participation in Environmental Law for Investigation s Public Access to Information About Mine Pollution and The Municipal/Industrial Strategy for Other Sources Of Information about Mining Environmental Assessment Freedom of Information Freedom of Information New Forms Of Environmental Environmental Commissioner of Federal Commissioner of the Environment and Sustainable Policies to Stimulate Alternatives to Minerals and Sustainability PART FOURSUMMARY

7 AND How Does the Canadian Regime Measure Up? on Exploration and Land Of Impact Of Mining on Mining Operations Permits, Approvals, Pollution Preventionand Waste to Ensure Industry Responsibility for Closure, Remediation andReclamation of Abandoned to Stimulate Alternatives to Virgin-Metal ConclusionENDNOTES4848484949505050505151 5151525252525252 PART FOURS5555565658585859 PART 1 - INTRODUCTION & ELEMENTS OF A FAIR REGIMEMINING S MANY FACES7 PART ONE:INTRODUCTION & ELEMENTS OF A FAIR Introduction: The Purpose of this ReportThe different takes on Mining on the following page and throughout in this report illustrate the manyfaces of Mining in over the world, Mining has been and continues to be a mixed blessing. On the one hand, it generateswealth for companies, communities and countries.

8 And, of course, metals and other mined materials arean integral part of human life on this planet. On the other hand, Mining generates huge amounts of wasteand pollution, disrupts indigenous livelihoods and local economies, destroys natural habitat and can leavea toxic legacy acid mine drainage that persists for hundreds of report provides an overview of environmentally-focused Mining law and Policy in Canada , with aspecial emphasis on metal Mining , to shed light on how one of the world s most mineral-rich countriesmanages the mixed blessing of virgin mineral extraction. While Canadian government agencies andCanadian Mining companies lay claim to progressive and effective laws and practices, the record showsthere is more to the story than these sources part, it is the purpose of this report to identify gaps and distortions in the official version of Mining inCanada.

9 It is also the purpose of this report to hold Canadian Mining law up to a standard of a fair andeffective regime and gauge how well it Summary of findingsCanadian Mining jurisdictions have established regulations and policies which fail to meet the criteria fora fair and effective regime outlined in this report. Rather the existing system is characterized by the fol-lowing features:Exploration and Land Accessva land access system that provides a prima facie privilege to Mining rights over all others;van unfinished protected area system, where the security of existing protected areas is under threatfrom mineral development and the establishment of new areas is complicated by the granting ofenhanced security and compensation rights for existing and new mineral system that fails to adequately control the Environmental impacts of exploration activities, or ensurethat Environmental damage done by such activities is of Impact of Mining Operationsvan Environmental assessment system that at best seems only able to achieve orders to mitigate envi-ronmentally damaging Mining activities, rather than providing for a full and fair consideration of thepotential Environmental , social and economic costs and benefits of projects.

10 The possibility of adecision not to proceed does not appear to be an available and enforcement of conditions imposed through federal and provincial environmentalassessment processes are weak or / CANADIAN INSTITUTE FOR Environmental LAW & POLICYC ontrols on Mining Operationsvfederal pollution control requirements are limited to dischargeregulations which are more than 20 years old and do not apply toall mines. Only Ontario has adopted modern water pollution con-trol regulations in relation to the metal Mining enforcement of existing pollution prevention and controlrequirements through budgetary reductions at the federal andprovincial effective mechanisms for citizen monitoring and enforcementof Environmental protection to Ensure Industry Responsibility for Mine Closure andRemediationvmine closure regimes which have failed to protect the public fromthe costs of cleaning up abandoned and bankrupt mines, and whichare currently being increasing readiness on the part of lawmakers to assume publicliability for Environmental damage caused by to Stimulate Alternatives to Virgin-Metal Miningvpolicies designed to keep the prices of metals and minerals artifi-cially low.