Post-Closure Land Use

Overview of BC Law

Post-closure land use is key in closure planning as it sets goals for closure activities. Legal approaches adopted to address this important issue, both in BC and in other jurisdictions, are described in the following section. In BC, some regional land use planning processes have been critiqued for their failure to adequately consult affected First Nations people and for their predominant focus on resource development at the expense of long-term sustainability. Closure solutions should address this issue by ensuring that post-mining land use is consistent with affected First Nations’ uses, proposed uses and own land-use plans, land-use plans jointly developed by First Nations and the province, and other legitimate regional land-use plans.

There are many factors that should be considered in determining an appropriate post-closure land use. Under BC mining law, the following factors must be taken into account in determining reclamation standards:

• Previous and potential land uses;³⁸
• Maintenance of average pre-mining land capability (for lands that are to be reclaimed);³⁹ and
• Long-term stability of land, watercourses and access roads.⁴⁰

Provincial policy further recommends that mine permit applications include: reclamation objectives; a general description of how the proposed reclamation program will achieve these objectives; and how their success will be measured.⁴¹ Where wildlife habitat is an end land use, target wildlife species should also be identified.⁴² The following Recommended Solutions expand on these basic requirements mandated under BC law.

Issue

The diverse variety of post-closure scenarios demands the inclusion of local and First Nations land use plans in closure planning to reflect local objectives.

Recommended Solutions

Integrate post-mine closure land use with local and First Nations land-use plans

[Tags: Closure Plans; Land Use Plans; Indigenous Rights]

Land-use plans are important guides for determining appropriate local post-closure land uses. In BC there are currently no legal requirements mandating that post-mine closure land use be integrated with local land-use plans. Conversely, many other jurisdictions have recognized the importance of integrating these two processes. For example:

• In West Virginia, mine reclamation plans must contain a description of post-mining land use that conforms to the regional land-use plan.⁴³
• In Washington, post mine-closure land use must be “consistent with the local land use designation”⁴⁴ and the basic objective of reclamation is to “re-establish on a continuing basis the vegetative cover, slope stability, water conditions, and safety conditions suitable to the proposed subsequent use consistent with local land-use plans for the surface mine site”.⁴⁵
• In Colorado, the operator is responsible “for assuring that the mining operation and the post-mining land use comply with city, town, county, or city and county land use regulations”.⁴⁶
• In Minnesota, all rules adopted by the state government for mine reclamation must conform to any state and local land use planning programs.⁴⁷
• US federal law mandates that coal mines be restored to a land-use that is consistent with applicable land use policies and plans.⁴⁸
• Under Manitoba law “rehabilitation” is defined to include the actions taken to leave a site in “a state that is compatible with adjoining land uses” and “that conforms, where applicable, to a zoning by-law or development plan under The Planning Act”.⁴⁹ In addition, lands disturbed by mining activities must be rehabilitated to a condition that is “environmentally compatible with adjoining lands”.⁵⁰

Legislate mandatory consultation with landowners and First Nations on post-closure land use

[Tags: Closure Plans; Indigenous Rights; Consultation; Landowner]

The Model Mining Development Agreement Project (MMDA) encourages companies to only submit a final closure plan once they have consulted with communities in the areas affected by mining operations.⁵¹ Several jurisdictions have incorporated similar ideas into law, legally granting landowners a consultation opportunity on post-closure land use. For example:

• In Western Australia, the Western Australian Government’s Guidelines for Mining Proposals in Western Australia provide that post closure land use options presented in the closure plan should be developed with stakeholder involvement, with the mine closure plan “reviewed annually, or at appropriate intervals, in response to continual improvement or best practice and any changes relayed to… relevant stakeholders”.⁵² Additionally, the Western Australian Government’s Guidelines for Preparing Mine Closure Plans provide that mine closure plans must demonstrate that an effective communication strategy has been developed or put in place to engage with stakeholders and “that the interests of and concerns of key stakeholders [which is defined as post-mining land owners/managers and relevant regulators, including indigenous/traditional land owners] have been considered.⁵³
• In Colorado, when determining post-closure land use the miner must consult with the landowner where possible.⁵⁴

As traditional landowners, this consultation right must be extended to First Nations people on whose traditional territories mining activities occur.

Adopt clear reclamation standards for different post-closure land uses

[Tags: Closure Plans; Reclamation Standards; Land Use Plans]

BC law sets out general reclamation standards that broadly apply to all types of post-closure land uses.⁵⁵ Other jurisdictions have adopted legal provisions that clearly specify different types of reclamation requirements depending on the specific post-closure land use. For example, in South Dakota, these include forest planting, rangeland restoration, and agricultural or industrial uses.⁵⁶ Similarly, California law outlines different reclamation performance standards for different purposes. For example, for prime agricultural land reclamation, California law mandates that fertilizers or other soil amendments shall not contaminate surface or groundwater.⁵⁷ Such clear requirements promote greater certainty that reclamation will adequately achieve specific post-closure land uses.

Another specific post-closure land use should allow for the exercise of specific First Nations rights, such as the restoration of habitat for specific species, or suitable growing conditions for native plants. Although the authors were unable to find existing legal provisions that provide for this, such a provision would grant First Nations people greater certainty to meaningfully exercise their Constitutionally recognized rights.