mt-polley-hazeletine

Why doesn’t B.C. have mining regulations that Brazil, Ecuador and China already have?

B.C.’s mining regulations fall short on tailings dams, cleanup costs and Indigenous consent when comparing with some other jurisdictions

Mining is big business in B.C. The industry brought in $9.5 billion in gross mining revenues in 2020, employs more than 11,000 people and the province is home to over 1,200 mineral and exploration companies.

B.C.’s mining association has called the province a “leading” and “world-class mining jurisdiction.” But when it comes to mining regulations, there are a few examples where B.C. is lagging behind the rest of the world. 

The Narwhal is tracking mining regulations that exist in other countries that B.C. doesn’t have. Here are four to get us started.

1. Tailings dams: in China, Ecuador and Brazil, building them near communities is restricted

There are no laws against building dams that hold mining waste, known as tailings storage facilities, near communities or sensitive ecosystems in B.C., according to B.C. Mining Law Reform.

These structures can be hundreds of metres high and hold millions of litres of tailings. The province has 172 dams holding about 2.5 billion cubic metres of mining waste, according to a recent analysis. That’s enough to fill BC Place stadium about 943 times. 

When these structures fail, the consequences can be deadly. In reaction to tailings dams disasters, some governments have implemented rules that limit or prevent mines and dams from being built near communities. After the Brumadinho dam disaster killed 270 people in Brazil in 2019, the state of Minas Gerais restricted building tailings dams within 10 kilometres to 25 kilometres upstream of populated areas.  

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In Ecuador, tailings facilities can’t be built within 10 kilometres upstream of a populated area. China passed legislation restricting mines to one kilometre from residential areas. China also restricted the height of tailings dams to 200 metres. There are mining companies in B.C. that are currently considering increasing the height of their tailings dams to more than 230 metres — among the tallest in the world.

B.C.’s challenge is that the provincial mineral tenure act allows anyone to make a claim close to communities, including on private property or near drinking water systems, Nikki Skuce, director of Northern Confluence, an initiative focused on improving land-use decisions and conserving watersheds, said. 

Skuce pointed to Abacus’ proposed Ajax mine that’s described as “in the immediate vicinity” of the city of Kamloops. Residents of the city and the Stk’emlupsemc te Secwepemc Nation opposed the copper-gold mine proposal in 2017, and asked the province to suspend the project. The project was not given an environmental assessment certificate by the provincial government and was also rejected by the federal government. 

Peterson Creek Park Peter Olsen The Narwhal
A hiker enjoys Peterson Creek Park outside Kamloops, B.C. High levels of contamination from the old Ajax mine site in Peterson Creek have been documented. Attempts to expand and reopen the old mine site have failed so far. Photo: Peter Olsen / Peter Olsen Photography

While the environmental assessment process is a way that communities can express their concerns about a project, there are no regulations that specifically prohibit a tailings dam from being built nearby, Skuce said. 

The company recently expressed it is continuing to work on finding a way to move forward with the project. “With copper and gold prices near all-time highs we would be happy to see this project advance more quickly, to the benefit of all stakeholders,” Paul Anderson, president and CEO of Abacus, said. “The Ajax project remains a priority for our partner [KGHM] and that they continue to engage about the project with First Nations.” 

Skuce points to Quebec as a possible model for B.C. In Quebec, municipalities can create no-go zones in their land-use plans to prevent mining in spots without existing claims. Municipalities can also create buffer zones a kilometre around urban and densely populated areas to prevent mining projects. 

“I would encourage the B.C. government, or any government for that matter, to create no-go-zones,” Ugo Lapointe, former national coordinator at MiningWatch Canada and co-spokesperson of the Quebec Meilleure Mine Coalition said. Lapointe said the new law has been a useful tool for some municipalities and is an opportunity for other jurisdictions to learn from Quebec and modernize their own laws.

You can find out how close you are to a tailings dam and how tall it is using BC Mining Law Reform’s mine tailings map.

2. Payment: In Quebec, Alaska and Maine, disaster or reclamation costs are a corporate responsibility

Whether it’s site reclamation or dealing with an emergency, cleanup costs at mining sites can run in the millions of dollars. Taxpayers are on the hook to cover for companies that can’t or don’t pay up. 

Collecting cleanup payment ahead of time is one way to prevent that from happening. In Alaska, mining companies are required to pay the full cost of reclamation up front. In Quebec, operators have to pay the full costs of cleanup within two years after receiving project permits. And in Maine, operators have to have enough insurance to cover a possible worst-case catastrophic failure. 

B.C collects some money from companies for this, but right now there isn’t enough to cover the total estimated cleanup bill for all of the province’s operating mines — which is estimated at $3.45 billion. 

Colin Arisman Tulsequah Chief Tulsequah River
The abandoned Tulsequah Chief mine will cost an estimated $48.7 million to clean up. The company went bankrupt and taxpayers could be on the hook for the cost of remediation. Photo: Colin Arisman / The Narwhal

“While most companies responsibly manage their environmental risks, some are either unwilling or unable to do so,” according to a recent discussion paper on a strategy to collect payments by the Ministry of Environment and Climate Change Strategy.

B.C. is getting better on this front. Earlier this year, the provincial government adopted an interim policy to increase reclamation bonding requirements. Skuce hopes the policy will become permanent regulation.

The interim phase is in place as the province wraps up engagement on a public interest bonding strategy for all industrial projects, which is much broader than mining. This phase requires companies opening new mines to pay upfront for environmental damage predicted to happen in the first five years. There are also incentives to do reclamation work as the mine is operating, Skuce said.

“On first look, the interim policy includes substantial bonding requirements that exceed most other jurisdictions in the world,” Michael Goehring, President and CEO of Mining Association of B.C., said in a press release.

But the interim policy is not a regulation at this point, and there is still a $1.14 billion shortfall between reclamation securities and liabilities. It also lacks a fund to cover unexpected disasters or when companies go bankrupt, according to BC Mining Law Reform. Once the province confirms its plans, the next step will be a transition period for industry.

3. Disasters: polluters pay big bucks in the U.S. and Russia

Resource extraction comes with risks, and spills and explosions around the world have cost companies a lot of money. When palladium mine and nickel producer Norilsk Nickel spilled roughly 21,000 tonnes of diesel — nearly 10 Olympic sized swimming pools — in the Arctic, it was fined almost US$2 billion. The 2021 spill was described as one of Russia’s worst environmental disasters.

British oil company BP agreed to pay more than US$20 billion in a civil settlement with the Justice Department and Gulf coast states after one of its oil rigs exploded in the Gulf of Mexico, killing 11 people and unleashing 4 million barrels of oil into the water (or more than 254 Olympic pools). The company also paid a US$4.5 billion criminal penalty and pleaded guilty to 14 criminal charges for the 2010 spill.

Even as far back as the 1989 Exxon Valdez oil spill, one of the worst oil disasters in U.S. history, fines exceeded a billion dollars. Thousands of animals died when a tanker ran into a reef, spilling about 11 million gallons of oil, the equivalent of nearly 17 Olympic-sized swimming pools. Exxon settled in 1991 and was ordered to pay more than US$1 billion in criminal and civil penalties. 

Meanwhile B.C.’s worst environmental disaster, the Mount Polley tailings dam spill in 2014, saw no fines or charges against the company, Imperial Metals. Twenty-five million cubic metres of mining waste, or about 10,000 Olympic sized swimming pools of tailings, were released in and around Quesnel Lake after the dam breached. The company didn’t face any charges, one engineer was disciplined and two engineers were fined a total of $226,500.

“People find it quite egregious that Mount Polley did not get fined at all,” Skuce said of the disaster. In fact, Imperial Metals received $108 million in a settlement with two engineering firms involved in the construction of the tailings storage facility. 

There have been some small improvements since then, Skuce said. For example, the Ministry of Energy and Mines can now impose administrative monetary penalties for violations of mining rules. But Skuce said the fines are generally so low she doubts they deter environmentally damaging practices. 

“Historically, we’ve had a miserable record,” Calvin Sandborn, senior counsel at the Environmental Law Centre at the Faculty of Law, University of Victoria, said. “They’ve improved the legislation a bit, but there are still major problems in actual implementation.” 

In 2021, the province gave Teck Coal, a subsidiary of Teck Resources, a $120,000 pollution penalty for its coal mining operations in B.C.’s Elk Valley. At the time, the provincial decision-maker listed 28 times the company wasn’t penalized for other toxicity contraventions between 2014 and 2018.

“I do not know or understand why this matter was not the subject of an administrative penalty referral considerably earlier,” Daniel Bings, a compliance operations manager, said when imposing the penalty. 

Around the same time, Teck Coal was also given the largest penalty ever issued under the Fisheries Act. The company was ordered to pay $60 million for polluting waterways in the Elk Valley for pollution offences “committed every day in the year of 2012.”

The charges were originally for pollution over 10 years but the company entered a plea bargain with the Crown and nine years of charges were dropped, according to an inquiry request prepared by the Environmental Law Centre Society.

A Teck Resource coal train loading plant
Many are concerned about the downstream impacts of Teck’s coal mine operations on fish in both Canada and the U.S. But the federal government hasn’t given the international body that could investigate a clear mandate to do so. Photo: Jesse Winter / The Narwhal

Sandborn said the reason the fine was so high was pressure from Americans. U.S. Senators were “basically writing and saying, ‘you’ve got to do something about the fact that you’re sending poisoned fish on the Kootenai River,’ ” he said.

In April, The Narwhal travelled the transboundary watershed to document how pollution from Canadian coal mines is threatening fish in the Elk Valley. Sandborn wants the International Joint Commission to look at cross-border coal mine pollution in the Kootenai watershed. Under the Boundary Waters Treaty the commission can approve projects, as well as investigate and recommend solutions on transboundary water issues. But so far, Global Affairs Canada has not given the commission a clear go-ahead to investigate.

4. Indigenous consent: mining companies need consent for projects on Indigenous lands in the Philippines, Australia and New Zealand

In the Philippines, mining companies need the consent of Indigenous Peoples for all activities on their lands, including exploration and development. In Australia, some states require mining companies to get the consent of Indigenous-controlled Land Councils. In New Zealand, Indigenous owners of Maori land can veto mining activities and consent is needed for access to sacred areas. In Columbia, the government is working on legislation that would require the consent of Indigenous people before exploration.

“I think that right now B.C. is both a Canadian and global laggard when it comes to aligning its mining laws with the UN Declaration on the Rights of Indigenous Peoples,” Jessica Clogg, executive director and senior counsel of West Coast Environmental Law, said.

B.C. passed the Declaration on the Rights of Indigenous Peoples Act in 2019, which mandates the government to bring provincial laws into alignment with United Nations Declaration of the Rights of Indigenous Peoples. That means ensuring Indigenous Peoples give free, prior and informed consent before projects are approved on their lands. But in practice, regulations are inconsistent. 

In the province’s current “free-entry system,” no consent is required to make a mineral claim on Indigenous land or private property. All you need is a few dollars and an ID to register a claim online.

“Exploration and mining activities persist as if the Declaration Act does not exist,” said Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, in a news release earlier this year. “This forces First Nation communities to continue to rely on lengthy and costly legal processes to stop or restrict unsanctioned mining operations in our territories, threatening our sacred lands and waters.”

BC UNDRIP legislation
Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs (centre) shares a moment the day B.C. introduced legislation to recognize the United Nations Declaration on the Rights of Indigenous Peoples. Photo: Province of B.C. / Flickr

The Gitxaała Nation is currently challenging mineral claims that were granted in its territory without consultation. Hearings for the case are expected to begin next April. 

This summer, the Tahltan Nation and provincial government reached the first consent-based decision-making agreement under the act related to the proposed revitalization of a mine on its territory.

Evolving B.C. mining regulations

“BC’s mining laws are regularly reviewed by government, regulators and a Health, Safety and Reclamation Code Review Committee, comprised of representatives from labour, Indigenous nations and industry,” Michael Goehring, president and CEO of the Mining Association of B.C., said in an email. 

Over the years the province has seen a new Mines Act, a revised Health, Safety and Reclamation Code and new water quality guidelines and ongoing monitoring, Goehring said. He added that the mining industry’s highest priority is “protecting the health and safety of workers, local and Indigenous communities, and the environment through responsible mining and tailings management.” 

Multiple sources said that on the ground, regulations are not always enforced and can even get in the way of good practices. Regulations are always evolving and more regulations don’t always mean better mining practices.

If you work in mining, live near a mine site or have ideas of how mining regulations can be improved, send your ideas to francesca@thenarwhal.ca.

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The Narwhal’s reporting team is busy unearthing important environmental stories you won’t read about anywhere else in Canada. And we’ll publish it all without corporate backers, ads or a paywall.

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