Proposed reforms to B.C.’s mining act are a positive step but taxpayers are still on the hook for costly clean-up costs, according to Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre.

Sandborn, who has been at the forefront of efforts to reform B.C.’s antiquated mining laws, said while the proposed changes to B.C.’s mining regime address a lack of independent oversight of the industry, they don’t tackle the long laundry list of problems associated with B.C.’s growing mining industry.

That’s because the proposed mining reforms, released last month and now open for public comment, deal only with the Mines Act and not the Mineral Tenure Act, which allows mining claims to be staked by nearly anyone in the world who has access to a computer, even if those claims lie within Indigenous traditional territory or sensitive ecosystems. 

The suggested changes also don’t address ballooning liabilities associated with mining operations. The Environmental Law Centre has pegged the liability costs for old mines in B.C. at $1 billion, while a report from watchdog group MiningWatch Canada estimated the figure to be closer to $3 billion.

“You need to have a guarantee that, when the mine closes up, it’s not going to leave the long-term problems that we’ve seen all over the province,” Sandborn told The Narwhal

“When are they going to ensure the polluter pays rather than taxpayers picking up the tab? The history of mining in B.C. has been that companies come in and get the quick profit and just leave the cost to the taxpayers.” 

This provincial map shows the location of selected major exploration projects, selected proposed mines and mines producing metal, coal and industrial minerals in 2018. Photo: British Columbia Geological Survey

B.C.’s regulation of mining under fire since Mount Polley Mine disaster

Regulation of B.C.’s mining industry has been under fire, both in Canada and internationally, since the 2014 Mount Polley disaster saw 24 billion litres of contaminated mining waste flow into waterways around Quesnel Lake and Hazeltine Creek after a tailings dam collapse.

Mount Polley mine disaster, August 2014. Image: Cariboo Regional District / Youtube

Public anger grew when no charges were laid against Imperial Metals even though a panel of experts found the company at fault due to an unstable foundation. Taxpayers ended up shouldering $40 million in cleanup costs and, in 2017, the company was given permission to discharge mine waste directly into Quesnel Lake.

The Mount Polley dam collapse led to fears in Alaska of similar disasters at Canadian mines along the border above prime salmon-bearing rivers. Alaskans are also dealing with pollution from the abandoned Tulsequah Chief mine, on the Canadian side of the border, close to the salmon-rich Taku River.

A wall separating the containment pond from the Tulsequah River has eroded and Tulsequah Chief mine wastewater now drains directly into the river. Photo: Colin Arisman / The Narwhal

The suggested reforms would separate mining permitting powers from inspection and enforcement duties to alleviate an apparent conflict of interest.

A new statutory decision-maker would be responsible for permitting, while health, safety and enforcement responsibilities would remain with the Chief Inspector of Mines.

The reforms also include the creation of a new oversight body, an Audit Unit, to perform independent mine inspections and beef up the capacity of staff with the Ministry of Energy, Mines and Petroleum Resources to hold mines accountable for health and environmental safety.

New powers for the ministry would give inspectors and auditors the authority to bring equipment or people to mine sites when needed, including technical experts and representatives from Indigenous communities.

Earlier this year, the Environmental Law Centre joined more than 30 mining advocacy and legal organizations earlier this year in calling for sweeping changes to B.C.’s mining laws.

The 69 detailed changes recommended by those groups include expanding civil liability for companies to ensure they pay for pollution, mandating clear risk-based inspection policies for all mines including closed and abandoned sites and requirements for independent analysis of water treatment systems that take into account the full long-term costs of a mine’s lifecycle.

Sandborn said it is important to separate regulation from granting mining rights, “so you don’t have the mine promoter agency regulating people they have lured to the province.” 

But it’s unclear how effective the province’s proposed changes will be at separating promotion and enforcement, Sandborn said.

“It’s not as separate as it is in some jurisdictions where it is different agencies, like Alaska and Ontario. … It’s somewhat of a response to the very fundamental problem the Auditor General pointed out, but we’ll see how separate those agencies end up being.”

Earlier this year reps from 30 mining advocacy and law organizations proposed almost 70 recommendations to change B.C.’s outdated mining laws. Photo: Taylor Roades / The Narwhal

In 2016, Carol Bellringer, B.C.’s auditor general delivered a damning report that concluded the province is not properly prepared to protect the environment from the mining industry. Bellringer found that a major problem is mining companies do not post enough security deposits to cover potential reclamation costs if a firm defaults. She estimated the fund is short more than $1 billion.

Sandborn said he is surprised that, after all the bad publicity, the government is not quickly bringing in effective reforms that look after taxpayers’ interests.

“This is a small step, but my bigger worry, from what I hear within government, is they’re going to blow it on the big issues.” 

The government has boosted the budget of the mines ministry by $20 million over three years to hire more inspectors and conduct more inspections. Talks are being held with industry, Indigenous communities and non-governmental organizations about changes to the Mineral Tenure Act, but more consultation is needed, according to government documents.

Changes to the Mineral Tenure Act, which the reforms do not touch, are essential to stopping mineral claims arbitrarily overriding land use plans that have been put together by stakeholders agreeing on the best use of different areas, Sandborn said.

“Mining claims can go in on Indigenous territories and cultural sites and sensitive watersheds,” he pointed out.

An updated policy for mine reclamation securities is expected later this year, with the presumed aim of ensuring clean-up costs are covered if a mining company fails to live up to its obligations.

In Alaska, mining companies are required to provide 100 per cent security upfront before a mine is permitted to operate. B.C.’s regulations are far laxer.

For instance, Canadian mining giant Teck Resources was required to pay full security for an estimated $560 million in reclamation costs for its Alaskan mine. Teck’s five B.C. mines, which have been plagued with selenium pollution problems, have unsecured reclamation costs of $700 million dollars in total.

For decades B.C. failed to address selenium pollution in the Elk Valley. Now no one knows how to stop it.

Sandborn said he is getting troubling signals that the B.C. government may not join other jurisdictions such as Quebec and Alaska in requiring 100 per cent bonding. 

“Proposals I have seen that were being floated around in the ministry were saying that we would give bonding credit for rocks in the ground. If there were potential minerals in the ground that could be applied to the bond, which is an absolutely bizarre notion that would be absolutely unacceptable and unenforceable,” Sandborn said.

Meanwhile, controversy continues to boil over Taseko Mines’ repeated attempts to explore for copper and gold on sacred land within Tsilhqot’in traditional territory, despite the unwavering opposition of Tsilhqot’in National Government. The New Prosperity Mine was twice rejected by the federal government, but granted an exploration permit by the province’s former BC Liberal government.

In other disputes, Imperial Metals, the same company responsible for the Mount Polley disaster, wants to drill in the Skagit headwaters, adjacent to Manning Park, angering groups in Canada and the U.S, who, again point to B.C.’s poor regulation of the mining industry.

A hiker on Silverdaisy Peak in the area known as the ‘Doughnut Hole’ in the headwaters of the Skagit River. In 1996, Skagit Valley was given a provincial park designation, merging the area with Manning Park, but the middle was left out because of mineral claims that have existed since the 1930s, creating the area known as the ‘Doughnut Hole,’ now the subject of an application for a mining exploration permit by Imperial Metals. Photo: Wilderness Committee

Clock is ticking for public input

Jill Weitz, campaigner with Salmon Beyond Borders, an Alaskan-based group advocating for the protection of transboundary watersheds, said she commends the province for soliciting public comment. But there is a lack of clarity within the process, she said.

“The province doesn’t do a good job in outlining how this will become a part of a bigger, broader process to update B.C.’s archaic mining laws,” Weitz old The Narwhal.

The cutoff for British Columbians to have their say on provincial mining regulations is Friday, October 25. 

There is still time to fill out a survey or email feedback to minesactproposal@gov.bc.ca.

Written submissions will be posted publicly, making it simple to see whether the government has received an earful on needed changes.

In an emailed statement to The Narwhal, the mining ministry said all feedback received will be considered, including in any future legislative, regulatory or policy changes. The ministry will also release a “What We Heard Report” summarizing the overall feedback.

“The intention is for government to introduce the Bill into the Legislature in 2020 should it wish to do so,” the ministry said.

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The ramshackle regulatory system governing B.C.’s mining industry is profoundly dysfunctional and the public has lost confidence in the province’s ability to protect the environment and communities from poor mining activities, says a new report from the University of Victoria’s Environmental Law Centre.

The wide-ranging report, released Wednesday, was commissioned for the Fair Mining Collaborative — a non-profit group that helps First Nations communities assess mining activities — and recommends that the provincial government establish a Commission of Public Inquiry to investigate B.C.’s regulation of the mining industry.

A judicial inquiry is needed because mining is a multi-billion dollar industry that can create jobs and great wealth, but can also create “catastrophic and long-lasting threats to entire watersheds and to critical public assets such as fish, clean water, wildlife and public health,” according to the report, which is signed by ELC legal director Calvin Sandborn and law student Kirsty Broadhead.

The Mount Polley tailings dam disaster, plus the toxic aftermath at old mines such as Sunro at Jordan River and the Tulsequah Chief in northeast B.C., where reclamation and cleanup regulations were not enforced, have created a profound crisis in public confidence, it says.

The mine at Jordan River operated from 1950 to 1974 and is suspected of wiping out salmon runs. The site was never adequately remediated and pollution can still be seen seeping into the Jordan River.

The Tulsequah Chief has been leaking acid mine drainage into a tributary of Alaska’s salmon-rich Taku River for 60 years and, although Energy and Mines Minister Bill Bennett has promised action and said the leakage is not harming fish, it is a constant source of worry and frustration for Alaskans.

With those types of examples, it is not surprising that public confidence is at a low ebb and a full-scale public inquiry could help set minds at ease, the ELC concludes.

“In the past, public inquiries have been established when the public had lost confidence in the regulation of an important B.C. industry — and those public inquiries have helped to improve regulatory systems and restore public confidence,” says the report, submitted Wednesday to Premier Christy Clark and cabinet.

The ELC is not the only organization to document problems with B.C.’s mining regulatory regime.

Auditor General Carol Bellringer issued a stinging audit of enforcement of mining industry regulations last year and concluded that government’s enforcement efforts were inadequate.

“Almost all of our expectations for a robust compliance and enforcement program were not met,” Bellringer said in her audit.

“The compliance and enforcement activities of both the Ministry of Energy and Mines and Ministry of Environment are not set up to protect the province from environmental risks.”

Although the government has acted on some of Bellringer’s recommendations, it has ignored the central recommendation that enforcement should be moved to an independent agency. The audit concluded that the Ministry of Energy and Mines is in a conflict of interest because it promotes mining at the same time as regulating the industry.

The ELC report points out that government has also failed to address the most important recommendation from the Mount Polley Expert Panel, which was to eliminate tailings lakes that, the Panel concluded, pose an unacceptable danger to B.C.’s environment.

“The rules on tailings facilities — and many other mining rules — remain archaic and ineffective,” the report says.

However, Sandborn remains optimistic that the government will establish a public inquiry

“I believe in facts, not alternative facts, and these facts speak for themselves,” he said.

The Energy and Mines Ministry did not return emailed questions from DeSmog Canada.

NDP leader John Horgan said in an interview that, although he is not prepared to commit to a public inquiry before seeing the ELC report, regaining public confidence in mining oversight will be near the top of his agenda if an NDP government is elected in May.

“I am going to look at this area with more intensity than others might because I was the critic for a decade and I know these issues and the players pretty well,” said Horgan who emphasized that he wants to see a robust mining industry in B.C., but that requires public confidence and social licence.

Enforcement, rather than regulation, is the biggest problem and an NDP government would separate promotion of the industry from enforcement, as recommended by the Auditor General, Horgan said.

Government’s decision to allow companies to use their own professionals, rather than government employees, to assess situations, also came under fire by Horgan.

“The move to professional reliance, rather than having independent public servants protecting and enforcing regulations, is the biggest failing of the BC Liberals,” he said.

“The public interest is always protected when you have independent public servants discharging their responsibility on behalf of all British Columbians, not just those that are promoting an economic activity.”

Public confidence and public trust was eroded following the Mount Polley disaster and government’s inaction has made the situation worse, Horgan said.

“We are three years on and there have been no consequences for anybody,” he said.

In addition to the environmental threats, the ELC report urges government to look at economic threats presented by a badly regulated industry and taxpayer liability, which is climbing because government is not demanding bonds that fully cover the cost of mine clean-ups.

Bellringer warned that unfunded taxpayer liability for mine clean-ups now exceeds $1.2 billion and other experts estimate liability at more than $3-billion.

“While some jurisdictions ban any mine that would require long-term water treatment B.C. doesn’t just allow such high-risk mines, B.C. routinely allows them to operate without full security — there’s a $730-million shortfall for these high risk operations alone,” says the report.

“By setting securities at artificially low levels, government has encouraged companies to not spend realistic amounts on environmental protection measures. Higher securities would lead to better mining practices,” it says.

Questions that the report recommends should be addressed by a public inquiry include:

*Do current standards for tailings storage facilities fall short of recommendations by the Mount Polley Expert Panel?

*Do B.C’s mining rules meet global standards for public safety and environmental protection?

*Are environmental assessment requirements adequate?

*Is enforcement of mining laws adequate?

*Should government remove enforcement of mining laws from the Ministry of Energy and Mines?

*Are closed mines being adequately monitored and reclaimed?

*Are mining companies cleaning up their own mess?

*How can the province ensure that mining companies, not taxpayers, pay to reclaim mines?

*Is placer mining being adequately regulated?

*Should the free entry mineral tenure system be reformed to protect private landowners, First Nations and the environment?

BC ramshackle regulatory system governing #BCmining is profoundly dysfunctional https://t.co/hRPrRkumWu @UVicLaw @MiningWatch @LavoieJudith pic.twitter.com/wZQdhzJNdS

— DeSmog Canada (@DeSmogCanada) March 13, 2017

The call for a public inquiry is being supported by many First Nations and community groups.

Ugo Lapointe, Canada program coordinator for Mining Watch Canada, in a letter of support, said “B.C.’s mining regulatory regime remains, in fact, one of the most problematic — if not the worst — in Canada when it comes to protecting the environment, communities, indigenous peoples and taxpayers.”

B.C. ranks worst in Canada for unsecured environmental liability of contaminated mine site clean-up costs and is the only large jurisdiction that has not modernized its mineral tenure system, Lapointe wrote.

The Mount Polley disaster was the worst mining spill in Canada’s history and can be attributed not only to poor technical and corporate practices, but also to poor regulatory oversight, Lapointe said.

And, with mining companies regularly showing up as generous donors to the B.C. Liberals, there is a fear of undue influence.

“B.C.’s system is subject to severe regulatory capture by the industry, a situation exacerbated by the fact that B.C. remains the only large province in Canada where there are no limits on political donations from corporate interests,” Lapointe wrote.

A letter from Bev Sellars, chair of First Nation Women Advocating Responsible Mining, says many of the group’s members have learned how promises of riches can turn into destroyed lands and limited low-paying jobs.

“It’s past time for B.C. to objectively and fully evaluate their outdated and biased mining laws and policies. We will accept nothing less,” Sellars wrote.

Image: Christy Clark at Copper Mountain mine. Photo: Province of B.C. via Flickr

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