‘When are they going to ensure the polluter pays?’: proposed B.C. mining reforms don’t go far enough

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.