Wanted: A Legal Regime to Clean Up Orphaned/abandoned Mines in Canada

By Castrilli, Joseph F. | McGill Journal of Sustainable Development Law, Fall 2010 | Go to article overview

Wanted: A Legal Regime to Clean Up Orphaned/abandoned Mines in Canada


Castrilli, Joseph F., McGill Journal of Sustainable Development Law


1. INTRODUCTION  2. BACKGROUND UPDATE: THE PROBLEM OF ORPHANED/ABANDONED MINES  3. CONSTITUTIONAL AUTHORITY WITH RESPECT TO THE CONTROL OF MINING ACTIVITY IN CANADA  4. LEGISLATIVE AND REGULATORY AUTHORITY EXAMINED  5. OVERALL FINDINGS ON COLLABORATION, LIABILITY, AND FUNDING FOR OPERATING, CONTAMINATED, AND ORPHANED/ABANDONED MINES IN CANADA  5.1 Collaboration  5.2 Liability  5.3 Funding  6. CONCLUSIONS  7. APPENDIX: RECOMMENDATIONS 

In Canada, the mining industry, governments, and local communities recognize that orphaned or abandoned mines--mines whose owner cannot be found or is financially unable to carry out cleanup--pose environmental, health, safety, and economic problems. In June 2001, a multi-stakeholder workshop was held in Winnipeg to review the issue of orphaned/abandoned mine sites in the country and identify approaches for cleanup. The resulting recommendations and guiding principles, presented at a September 2001 Mines Ministers Conference, became an Action Plan that received the support of the Ministers. A national multi-stakeholder Advisory Committee on Orphaned/Abandoned Mines was subsequently established in 2002 and charged with undertaking the Action Plan.

The National Orphaned/Abandoned Mines Initiative ("NOAMI") is a co-operative Canadian program, guided by the Advisory Committee and composed of the mining industry, federal, provincial and territorial governments, environmental non-government organizations, and First Nations. The Advisory Committee has created several Task Groups to address different aspects of the orphaned/abandoned mine problem. The Task Groups notably focus on: information gathering; community involvement; legal and regulatory barriers to voluntary collaboration in undertaking cleanup measures; funding models and approaches; and guidelines for legislative review.

The responsibilities of the NOAMI Guidelines for Legislative Review Task Group ("GLRTG"), conferred in 2003 by the Mines Ministers, included the development of a series of guidelines to facilitate a focused review of the legislative, regulatory, and policy framework as it applies to collaboration, liability, and funding in relation to orphaned/abandoned Canadian mines. In particular, the guidelines, finalized in 2004, were designed to facilitate the completion of a review of legislation (acts, regulations, and instruments such as permits, licences, approvals) and related policies, programs, and practices with regard to orphaned/abandoned mine sites, as well as contaminated and operating sites where there is demonstrated relevance to legacy issues. The ultimate goal is to ensure that approaches across jurisdictions are themselves consistent, certain, transparent, coordinated, and efficient.

The report that forms the basis of this article was prepared to apply the guidelines and to complete the review as it relates to collaboration, liability, and funding for each jurisdiction considered in the report (federal, provincial, and territorial) in relation to orphaned/abandoned, contaminated, and operating mines in Canada.

In this regard, Part II of the article provides a brief background to the orphaned/abandoned mines problem. Part III then briefly reviews constitutional authority for the control of mining activity in Canada. Part IV summarizes what legislative, regulatory, and policy authority was examined for the control of mining activity at the federal, provincial and territorial levels. Part V provides overall findings with respect to collaboration, liability, and funding measures in relation to orphaned/abandoned, contaminated, and operating mines. Part VI then offers brief conclusions. Finally, Part VII (Appendix A) sets out the recommendations from the various reports prepared for NOAMI by the author.

2. BACKGROUND UPDATE: THE PROBLEM OF ORPHANED/ABANDONED MINES

Orphaned or abandoned mine sites are generally defined as closed mines whose ownership has reverted to the Crown, either because the owner has retired from business or, as is the case with some historic properties, because no owner can be found. …

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