GUEST COLUMN (August 26, 1991)

With the proclamation of the 1989 Mining Amendment Act (MAA) on June 3, the mining industry is faced with the most significant amendments ever made to Ontario’s Mining Act. At the annual general meeting of Mines Accident Prevention Association of Ontario (MAPAO) held recently in Toronto, related issues, particularly those about the environment, were discussed.

The proliferation in environmental regulatory acts is a direct result of the greening force in Canadian society. And the supposition that jobs must always take precedence over environmental concerns is no longer a tradeoff that the public will accept.

Until now, mining activities have been largely under provincial jurisdiction. This is changing. The federal government is acutely aware of the importance of environmental concerns and it is now striving for a leadership role. Mining companies will thus be required to comply with two sets of comprehensive environmental regulations.

If the U.S. experience is anything to go by, the smoothing out process will be a long one and there are still cases before the U.S. courts resulting from conflicting environmental standards and contradictory interpretations of state and federal laws.

But what action can a given mining company take in the face of such a volume of new legislation? The penalties for non-compliance, innocent or inadvertent, are punitive and not only in fines but in suits that may well be brought against employees, managers, company officers and directors. For the large company, it is a matter of establishing a legal department dedicated to the elucidation and implementation of relevant regulations as they affect each individual site of the company’s operations. It means a corresponding department to effect the necessary technical aspects of environmental protection. It means a foolproof monitoring system to ensure that what should be done is actually done and continues to be done. The expense will be a significant one.

For the junior company and the independent producer, there are few options other than placing the whole environmental parcel, legal and technical, in the hands of organizations specializing in these fields.

But before these new acts and regulations become entrenched, there needs to be a reassessment of the fairness of these regulations. Two anomalies have already arisen.

The first of these is the Matachewan case in Ontario, where the tailings dam of an abandoned mine was breached by an unusually heavy flow of water and a substantial volume of slurried tailings swept into the Montreal River. There is the suggestion that the heavy inflow was due to the collapse of a beaver dam but the cause itself is not relevant.

The tailings dam, and the mining property on which it is located, recently came into the hands of another mining company as part of a business transaction. The mining company and the principals of the company are now being charged under the new environmental regulations.

According to law, they are responsible. According to common sense, there is neither logic nor fairness.

By the same process which has been used to compile these particular off-centre regulations, one could just as well say that the cabinet ministers and back-bench MPs of the last half dozen Canadian governments are individually responsible for the national debt.

The second case is that of Equity Silver Mines. This company is required to post a bond for environmental reclamation of the property over the many years required to treat acid runoff from its pyritic waste dumps and tailings piles. The amount required is now being negotiated and figures ranging between $30 million and $60 million have been quoted.

The gross inequity in this case is that the mining company is being held solely responsible for the cleanup. Clearly, fairness and justice would require all the parties that benefited from the exploitation of the ore deposit to contribute to the bond and in proportion to their benefit. The contribution of the federal and provincial governments, for example, should be proportional to corporate taxes received plus taxes on employees earnings received and corporate sales taxes received.

Such should be the basis for a system that can be seen as both fair and equitable.