Orphaned Mines

Orphaned mines are mine sites where the owner cannot be found or is financially unable or unwilling to carry out remaining site remediation. Early mining activities were often carried out with a lack of knowledge and consideration of the associated environmental impacts. As such, many communities worldwide continue to experience negative environmental impacts from lands on which mining activities ended decades, if not centuries ago. Legal provisions that promote meaningful community involvement and successful environmental clean up of these mine sites are described in the following sections.

Overview of BC Law

In BC, orphaned mines are regulated under the Mines Act and the Environmental Management Act.

Under the Mines Act, inspectors are empowered to remediate closed or abandoned mines where they deem it necessary to avoid danger to persons or property, or to abate the pollution of the land and watercourses.²⁷⁵ The remediation costs are to be drawn from the consolidated revenue fund²⁷⁶ and the total cost (including interest) forms a lien and charge on the mine or mineral title that is due to the government.²⁷⁷ However, the Minister is granted broad discretion to cancel this lien with or without payment of the debt owing.²⁷⁸ In addition, the definitions of “closed mine” (i.e., a mine at which all mining activities have ceased but the owner remains responsible for compliance) and “abandoned mine” (i.e., mine for which all permit obligations have been satisfied and the mineral claims have reverted to the government) have been criticized for not being adequately broad to capture orphaned mines where a responsible person is no longer available and permit conditions have not been adequately satisfied even if the claims have reverted to the government.²⁷⁹ There are also no criteria listed in the legislation for identifying orphaned mines or authorizing an inventory of these sites.²⁸⁰ Finally, an exemption from re-vegetation requirements is also provided in the HSR Code for environmental disturbances that occurred before 1969 on sites that have been inactive since then.²⁸¹

The Environmental Management Act provides a somewhat broader definition for “historic mine site.” This term is defined as an area where the ground has been disturbed mechanically to produce coal or mineral bearing substances (including a site used for processing, concentrating or waste disposal) and for which no Mines Act permit exists and no identifiable owner or operator is taking responsibility for contamination at the site.²⁸² Unfortunately this broader definition does not grant the local community any greater protection from environmental impacts associated with these sites. Rather, the associated legal provisions exempt a person that holds mineral rights to the site for exploration purposes from the responsibility of remediating any contamination that existed at the time they acquired those rights.²⁸³ As such, there are no legal provisions that promote the prompt remediation of these legacy mine sites.

Although inadequate legal provisions are in place to carry out the remediation of orphaned mines in BC, the provincial government has undertaken some work to address these sites. In the early 1990’s the provincial and federal government initiated a project to compile information on closed and abandoned mines in BC, and particularly the ARD potential associated with them.²⁸⁴ Then, in 2000, the provincial Ministry of Energy and Mines carried out a Historic Mine Sites Project to begin to inventory historic mine sites in BC.²⁸⁵ More than 1,800 historic mine sites were identified on Crown land across the province.²⁸⁶

In 2002, the Auditor General released a report criticizing the government’s management of provincial contaminated sites extensively.²⁸⁷ In response, the Crown Contaminated Sites Branch was established to manage contamination on Crown lands where no responsible party could be identified. This included the responsibility to carry out environmental investigations and remediation programs at priority orphaned mine sites. This agency has had some success in remediating some priority orphaned mine sites; however, without more secure funding, or legal provisions mandating community participation in the process, the long-term success of this program is uncertain.

Issue

BC’s legislation requires comprehensive revision for dealing with the hundreds of orphaned mines across the province.

Recommended Solutions

Coordinate the clean-up of orphaned mines with land-use planning

[Tags: Orphaned Mine; Land Use Plan]

The clean-up of orphaned mines should be coordinated with land-use planning to ensure goals and objectives of local communities are achieved. This is recognized in Nunavut, where legal provisions empower the Nunavut Planning Commission to identify and prioritize the requirement to clean-up inactive mining sites. To the extent possible, this initiative is to be coordinated with development of land-use plans.²⁸⁸

Promote community involvement in orphaned mine clean-up

[Tags: Public Consultation; Orphaned Mine; Reclamation]

Local communities should be engaged in the remediation of orphaned mines as they often have important knowledge on historical activities and associated negative impacts. In addition, the remediation of orphaned mines may play an important role in local land-use planning. There are several examples of successful community engagement in orphaned mine remediation in BC. For example, the Tsolum River Partnership was a coalition of community, industry and government involved in the planning and implementation of the Mt. Washington Mine remediation.²⁸⁹ Legislation, however, is required to ensure this approach is adopted in other locations across the Province. The federal National Orphaned and Abandoned Mines Initiative (NOAMI) have published guiding principles for effective community involvement.²⁹⁰ These principles include communication before decisions are made, financial provisions to support community involvement, public information sessions, consistent community involvement and meetings held in a manner that respects local cultures.²⁹¹

In Idaho, the law mandates that the characterization, prioritization, and reclamation of eligible mines and affected lands be coordinated with other governmental, educational, and private organizations or agencies that have expertise and information regarding abandoned mines and affected lands. These other groups may also be compensated from the abandoned mine reclamation account for the services they provide.²⁹²

Legislate the establishment of an orphaned mine inventory that is public available and regularly updated

[Tags: Orphaned Mine; Public Consultation]

Under EU law, member states must develop an inventory of abandoned mines if they are, in effect, a waste facility used to store the “accumulation or deposit of extractive waste” that causes, or can cause negative environmental impacts or serious threats to human health or the environment. While this does not extend to all abandoned mines due to the criteria, this inventory must be periodically updated and made publicly available.²⁹³

Create an orphaned mine clean-up fund paid into by operating mines

[Tags: Security; Orphaned Mine; Contamination]

One of the key goals identified by the Whitehorse Mining Initiative was to establish funding means for reclaiming old mine sites where the remediation responsibility could not be assigned.²⁹⁴ However, in BC, the Mines Act requires orphaned mine remediation costs that are expended by the government to be drawn from the consolidated revenue fund.²⁹⁵ This has resulted in a significant burden on the public purse – between 2001 and 2009 the provincial government committed over 200 million dollars to the management of the province’s contaminated sites. Currently, there is no program in BC which collects these funds from the mining industry.²⁹⁶ Conversely, other jurisdictions have adopted legal provisions that ensure a more secure source of funding for cleaning up orphaned mines – for example:

• In Washington, fines, interest, and other penalties collected by the mining department are to be used to reclaim surface mines abandoned before 1971.²⁹⁷
• In West Virginia, a general bond fund and a special trust are both available for sites abandoned after August 3, 1977 (where the bond is less than the reclamation costs) and for water treatment systems of orphaned (“forfeited”) sites, respectively.²⁹⁸
• In California, miners must pay fees on each ounce of silver and gold produced. These fees are deposited in an Abandoned Mine Reclamation and Minerals Fund that can be used to “remediate features of historic abandoned mines and lands that they impact”.²⁹⁹
• The US Federal Code also established an Abandoned Mine Reclamation Fund from which funds are distributed to qualifying states for use in reclamation of abandoned mine sites and adjacent impacted areas.³⁰⁰ Coal mine operators are required to pay into this fund by way of a fee imposed on produced coal.³⁰¹
• In New South Wales (Australia), the regulatory authority may sell any remaining mining infrastructure (buildings, plants, machinery, equipment, etc.) on an orphaned mine site (‘derelict mine site’), by public auction or by private sale (if not sold at public auction), and apply the proceeds to a fund for remediating such sites.³⁰²
• In Alberta, oil and gas producers are required to pay levies into an Orphan Fund, which is used to pay costs associated with suspension, abandonment and reclamation of wells and facilities.³⁰³