First Nations and Public Consultation

Issue

Local communities generally bear the heaviest impacts from local mining activities and their aftermath. BC, however, has no mandatory legal avenues for public participation in the review of closure plans.

The Chief Inspector’s significant discretion in deciding whether to notify local communities of closure plans that have been submitted, coupled with the short comment period where communities are in fact notified, significantly undermines the involvement of affected communities and impedes the incorporation of valuable local knowledge into closure planning.

Recommended Solutions

Require consultation with First Nations on the content of closure plan

[Tags: Closure; Indigenous Rights; Meaningful Consultation; Negotiated Agreements; Land Use Planning; Free, Prior, and Informed Consent]

BC law does not explicitly require that consultation on mine closure plans be carried out with affected First Nations. Rather, First Nations consultation on closure plans is merely suggested in policy guidelines. In contrast, Ontario law expressly requires First Nations’ consultation before closure plans are filed.¹⁴ In addition, when making a decision on whether to approve an application to rehabilitate a mine hazard, the regulatory authority “shall consider whether Aboriginal community consultation has occurred in accordance with any prescribed requirements”.¹⁵

Make closure plans available to the public

[Tags: Closure Plan; Public Consultation]

Legally requiring public accessibility to closure plans increases transparency of both the regulatory process and the mining operation. This is recognized under Oregon law which proclaims as a public document the complete reclamation plan, minus proprietary information. This makes the plan publicly available.¹⁶

Involve local communities in review of mine closure plans

[Tags: Closure Plan; Review; Public Consultation]

In Idaho, the regulatory authority may call a public hearing to determine whether the closure plan complies with the legal requirements: interested persons are entitled to appear and give testimony at these hearings.¹⁷ This promotes greater public involvement in the review of closure plans.

Involve local government in review of closure plans

[Tags: Closure Plan; Local Government; Consultation]

Local governments are also an important source of information on local socio-environmental conditions, and should therefore also be notified about closure plan submissions and consulted during the review process. This is recognized under Idaho law which requires that the regulatory authority notify local cities and counties when it receives a closure plan for a surface mining operation. These cities and counties then have an opportunity to review the non-confidential portions of the plan and provide comments.¹⁸  Similarly, under Washington law, the regulatory authority must solicit comments from the local government prior to approving a reclamation plan. ¹⁹

Involvement of Other Agencies

Issue

A lack of multi-departmental review requirements renders closure plan processes vulnerable to errors and omissions. Notably, if written comments from other government agencies are not afforded legal weight, there is little incentive for them to commit adequate resources to review the plan. It is therefore important that comments from other government agencies be granted legal weight.²⁰

In addition, to promote a multi-collaborative review process, the law should impose information-sharing duties not only on the mining regulatory authority, but also on other regulatory agencies. Recommended Solutions that address these issues are provided below. It is important to note, however, that information sharing should not be limited to the closure plan review phase. Instead, it should be undertaken throughout the course of the mining cycle to promote in-depth exchange of views.²¹

Recommended Solutions

Mandatory review of closure plan by other relevant government departments

[Tags: Closure Plan; Review; Consultation]

Mining laws in South Dakota²² and Colorado²³ require other government agencies and departments to conduct reviews of closure plan. Similarly, in Quebec, the mining law mandates that the regulatory authority shall only approve a rehabilitation and restoration plan after consultation with the Minister of Sustainable Development, Environment and Parks.²⁴ The State of Wyoming goes one step further and requires that the director not only consult, but also advise, and co-operate with other state and federal government agencies. ²⁵

Commit other agencies and government departments to assist the mining regulatory authority in the review of closure plans

[Tags: Closure Plan; Review; Multi-Agency]

To regulate efficiently and successfully, the mining regulatory authority should be able to rely on other government agencies and departments for support in reviewing mine closure plans. This is ensured in Colorado, where a duty is imposed on the following agencies to furnish, “as far as practicable, whatever data and technical assistance the board may request and deem necessary for the performance of total reclamation and enforcement duties”:²⁶

• Department of Agriculture;
• Department of Higher Education;
• State Conservation Board;
• Colorado Geological Survey;
• Division of Parks & Outdoor Recreation;
• Division of Wildlife;
• Division of Water Resources;
• University of Colorado, Colorado State University, and Colorado School of Mines; and
• State Forester.

This type of legal provision helps clarify duties, and provides a legal avenue through which funding for such support may be channelled.

Make oversight of related processes the responsibility of one government department

[Tags: Closure Plans; Reclamation Plans; Government]

Since closure and reclamation issues often cross several disciplines, it can be useful to combine the efforts of different departments to collectively address the multiplicity of concerns, rather than isolating them. This can be accomplished by combining the regulation of related processes into one government department. For example, in Nevada, the same department administers both reclamation programs and the water quality program.²⁷ Similarly, the South Dakota Department of Environment and Natural Resources combines the administration of mine reclamation with that of environmental protection.²⁸ Montana’s Department of Environmental Quality also combines mine reclamation and environmental protection into a common department.²⁹

Require proof of economic feasibility of closure plan

[TAGS: Closure Plans; Feasibility; Review]

US federal environmental law requires that proposed closure actions be demonstrated as being economically feasible. Where this is not demonstrated, the operator must re-engineer the process design or mine plan to ensure that the proposed closure procedures can be undertaken with the available financial resources.³⁰  This ensures that viable strategies that can be feasibly integrated are built into the closure plan.

Similarly, Wisconsin’s stringent “Prove It First” law requires a mining company applying for a mine permit to first prove that they have successfully mined in conditions similar to Wisconsin’s, in the US or Canada, for at least ten years without polluting the local water bodies, and that they have operated a mine which, at least ten years post closure, has not polluted the local water bodies.³¹

Support the closure plan review process by requiring miners to pay for the review costs

[Tags: Closure Plans; Review; Expenses]

BC mining law does not establish closure plan review fees. As such, all administrative costs associated with the review are drawn from the public purse. Other jurisdictions have enacted laws aimed to alleviate this heavy burden. For example, Idaho law empowers the regulatory authority to collect a reasonable fee for reviewing and approving a permanent closure plan.³²

Revisions & Amendments

Overview of BC Law

In BC, there is no legal requirement to update reclamation and closure plans. The initial mine permit application must include both a short-term (5 year) reclamation plan and a final comprehensive closure plan. As time progresses, these reclamation plans should be updated to reflect changing costs, mining conditions, reclamation techniques, and closure objectives. BC law, however, does not have a general requirement for regular updates of closure plans. Instead, the issue is governed by non-binding policies and on a case-by-case basis according to conditions contained in individual mine permits.³³

Issue

Lack of legal requirements to regularly update closure plans leaves the process vulnerable to arbitrary discretion, lack of enforcement, and inconsistent application.

Recommended Solutions

Review and update closure plans at minimum every 5 years

[Tags: Closure; Third-Party Review; Resource Policy]

Other jurisdictions legally require regular updates of closure plans. For example, Quebec and Saskatchewan law require reviews of closure plans at least every 5 years.³⁴ Further, where a miner in Saskatchewan fails to conduct the required review, the regulatory authority can hire an independent third party to complete the review at cost to the miner.³⁵

Require consultation with local authorities when updating or amending closure plans

[Tags: Closure; Consultation; Free, Prior and Informed Consent; Resource Policy]

Local authority involvement in closure plan reviews and updates is equally, if not more, important than at the initial closure plan submission stage. Over time, the local community and elected authority may notice impacts that require further mitigation, or have interests in new locations being developed. These must be considered in the design of updated or amended closure plans. Recognizing this, Colorado law requires the regulatory authority to confer with the local county and conservation district before approving changes to an existing reclamation plan.³⁶

Review and update closure plans following unexpected environmental impacts

[Tags: Closure; Environmental Assessment; Review]

When mining activities have unexpected adverse impacts on the environment, it is important to promptly re-evaluate the closure plan and make necessary amendments to mitigate adverse impacts. This is recognized in several jurisdictions. For example, in Ontario, if aquatic life in the receiving water body has been adversely affected during operation or closure, the closure plan must be amended “to specify the steps that will be taken to re-establish a diverse and viable aquatic community.”³⁷