EDITORIAL PAGE Matachewan under the microscope

The case of Matachewan Consolidated Mines is one that the mining industry in Ontario is going to be watching closely. How far the government goes in applying the Environmental Protection Act to Matachewan will almost certainly be considered a benchmark for other mining ventures in the province. The government is attempting to issue cleanup orders against Matachewan and other companies as well as certain officers and directors of those companies for an incident in October, 1990, when tailings containing traces of cyanide, arsenic and mercury spilled into the Montreal River.

Although no charges of liability under the EPA have been laid, it is not unreasonable to assume that the ministry is contemplating doing just that. Amendments to the EPA in 1986 allowing directors and officers to be charged could be invoked. The government has been casting about for cases to test officers’ and directors’ liability and this might be one.

Mining companies are justifiably concerned about the exposure of directors. Junior companies, in particular, are worried: directors are often part-time or “directors of convenience” appointed simply to meet legislative requirements but not remunerated sufficiently to warrant spending their time supervising the company’s affairs. The EPA makes no distinction — all officers and directors can be held equally responsible.

The Ontario Mining Association, which represents the overwhelming majority of operating mining companies in the province, finds the situation so touchy that it will not comment on the case, even though it is directing almost a third of its 1991 budget to addressing environmental issues. Matachewan is not a member of the Ontario Mining Association, which may explain the association’s reluctance to comment, but the case will undoubtedly affect OMA members.

Theoretically, just about anybody who ever had an interest in a property could now be held responsible under the EPA. Consider, for example, the hypothetical non-mining case of someone who rented a house for a few months in mid-1988. If the fuel from the storage tank for the home’s oil-fired furnace somehow spilled “into the natural environment” today, the government could hold that former tenant responsible. What’s more, the government, theoretically, can clean up the spill without advising anyone or seeking tenders, then bill the former tenant for the cost.

Meeting today’s environmental requirements is difficult — and often confusing — enough for mining companies. This aspect of delving into past activities and ownership, however, is particularly worrisome. The Matachewan case is interesting in that it is something of a hybrid — an old mine with an old tailings dump that has undergone some work in recent years. Those who did the most recent work can, apparently, be tied into situations that arose from past mining.

We have always been intrigued by a similar situation, the Kam Kotia property in Timmins, Ont. There have been problems with acid drainage from that former producer, and it seems like a candidate for similar legal “test work.” But ownership of the Kam Kotia tailings has reverted to the Crown, implying that the provincial cabinet carries liability. How would the ministry of the environment handle that?

The Matachewan case, if it proceeds, will also put a chill over any kind of future mine reclamation work. Directors of a company would be leery of getting involved in any project regarding old mine sites, even if the project were expected to result in a reduction of environmental impact. They could become responsible for events that happened 30 or 40 years earlier.

In the case of Matachewan, the tailings spill apparently arose from the overflow when a beaver dam burst upstream from the tailings dump. If one is seeking to place blame, it could well fall on the Ministry of Natural Resources for failing to monitor and manage the beaver population.

The full facts of Matachewan have not been determined yet, but it just doesn’t seem reasonable to hold someone responsible for actions taken by others decades earlier based on different standards of compliance.