Consultation at Mine Permit Application Stage

Consultation with Other Government Agencies

Overview of BC Law

Due to the high likelihood of wide-ranging social and environmental impacts from mining, it is important to have government agencies representing different statutory interests review mine permit applications. In BC, the Chief Inspector is required to establish advisory committees and regional advisory committees (such as the Regional Mine Development Review Committees)⁴⁷ to assist in carrying out his or her duties under the Mines Act.⁴⁸ The stated purpose of these committees is to co-ordinate multi-agency mine-review processes with the goal of fostering “socially and environmentally responsible mine developments by providing an open, transparent, efficient and timely process for the review and permitting of proposed mine projects”.⁴⁹

Once established, the Chief Inspector may refer mine permit applications to these advisory committees for review.⁵⁰ The committees have 60 days to conduct their review of the mine permit application.⁵¹ Where the Chief Inspector does not refer a mine permit application to these committees, she or he may circulate the application to other government ministries and agencies, that would then have 30 days to provide written representations.⁵² Any comments received from the advisory committees or other government ministries or agencies must be taken into account in the subsequent issuance of the mine permit.⁵³

Issue

Although the Chief Inspector is empowered to refer mine permit applications to other government agencies for review, this practice is discretionary. As such, there is no guarantee that ministries and agencies whose mandate and programming may be affected by a proposed mine will be given an opportunity to participate in the review of the mine permit application. This is especially problematic where a proposed mine does not qualify for, or has been exempt from, an environmental assessment.

Recommended Solutions

Notify other government bodies of mine permit applications

[Tags: Mine Permit Application; Consultation; Government Agencies]

At minimum, other government agencies whose statutory interests may be affected by a proposed mining operation should be notified of mine permit applications. This is recognized in several jurisdictions – for example:

• US federal coal mining law requires the regulatory authority to notify “various local governmental bodies, planning agencies, and sewage and water treatment authorities of water companies in the locality in which the proposed surface mining will take place” of the operator’s intention to mine, and provide a reasonable time in which these bodies can submit comments.⁵⁴
• Under the New South Wales (Australia) mining legislation, before granting a mining lease the relevant minister must provide notice (and an opportunity to object) to each government agency that, in the opinion of the minister, would be materially affected by the granting of the lease and must also notify the Director of Planning.⁵⁵ In relation to the Director of Planning, the notice must contain a description of the land and a detailed description of the proposed works and rehabilitation activities.⁵⁶
• In California, whenever surface mining operations are proposed within the 100-year floodplain for any stream, and within one mile, upstream or downstream, of any state highway bridge, the lead agency receiving the application must notify the Department of Transportation. This department then has a set period of 45 days to review and comment on the proposed surface mining operations with respect to any potential damage to the state highway bridge from the proposed surface mining operations.⁵⁷ Similarly, notification of any surface mining proposals for lands within the boundaries of the San Gabriel Basin Water Quality Authority that may penetrate the groundwater aquifer must be provided to the appropriate California regional water quality control board, and any water-master for the groundwater recharge basin. These authorities can charge administrative fees for reviewing any such applications.⁵⁸

Include recommendations by other government agencies as mine permit conditions

[Tags: Mine Permit Application; Consultation; Government Agencies]

Under BC law, the Chief Inspector must merely “take into consideration” submissions by other agencies on a mine permit application. In contrast, in Oregon each cooperating agency must develop permit conditions within its expertise and authority, and these must be included as conditions to specific chemical process mine permits.⁵⁹

Require approval from government bodies responsible for environmental protection

[Tags: Mine Permit Application; Consultation; Government Agencies]

In New Brunswick, a mine permit will not be granted until the Minister has received the approval from both the Minister of Environment and Minister of Agriculture, Aquaculture and Fisheries.⁶⁰ This ensures that government agencies focused on environmental protection have an adequate opportunity to comment on and influence mine permit conditions.

First Nations Consultation

Overview of BC Law

According to provincial policy documents, the current practice is for the Chief Inspector to refer mine permit applications to the BC Regional Mine Development Review Committees.⁶¹ The stated purpose of these committees is to co-ordinate multi-agency mine-review processes with the goal of fostering “socially and environmentally responsible mine developments by providing an open, transparent, efficient and timely process for the review and permitting of proposed mine projects”.⁶² These committees have been established in each of the ministry’s five administrative regions.⁶³ On-going membership includes representatives from provincial and federal government agencies, while local government, First Nations’ representatives and members of the general public, are invited to participate on a project-specific basis.⁶⁴ Government policy recognizes First Nation participation on these committees as contributing to the government’s duty to consult, but not constituting “the full level of engagement required to address asserted Aboriginal interests”.⁶⁵ Provincial policy also states that “during deliberations, the Chief Inspector also considers all government and proponent First Nations consultation and accommodation efforts outlined in a First Nations consultation summary and recommendations report provided by the Aboriginal Relations Branch of the Ministry”.⁶⁶

Issue

BC’s mining laws do not explicitly require the government to consult with First Nations in mine permit application reviews – consultation is only referred to in non-binding policy documents.

Recommended Solution

Notify and consult with First Nations on mine permit application

[Tags: Mine Permit Application; Notice; Consultation; First Nations]

In 2004, the Supreme Court of Canada held that the provincial government owed a legal duty to consult with the Haida people before issuing timber licences to the forestry industry.⁶⁷ The same rule is equally applicable to the mining industry. First Nations peoples must be engaged in the review of mine permit applications that may impact their rights. Explicit legal requirements for notice of mine permit applications to Indigenous peoples are provided in other jurisdictions. For example, in Victoria (Australia), applicants are legally required to provide notice of certain applications for a licence within 14 days to local registered Aboriginal parties for an area in which the application relates.⁶⁸

[Note that the following recommendations for public notification and consultation should also be extended to affected First Nations.]

Public Consultation

Overview of BC Law

The government alone cannot – nor should it be expected to – protect the environment. Everyone has a stake in a healthy, clean and safe environment; everyone, therefore, has a part to play in ensuring its well-being.

– House of Commons Standing Committee on Environment and Sustainable Development (1995)⁶⁹

BC provincial policy states that the public has opportunities to influence mine permitting decisions by participating in public meetings, open houses and other public forums, as well as by submitting comments during the public comment period.⁷⁰ However, the provincial Auditor General recently recognized that although the provincial government’s core values support the use of public participation, “these values have not been translated into principles for conducting public participation”.⁷¹ The Auditor General also held that as a general principle, “the more significant the impact, the greater the need for public participation”.⁷² This suggests that a high level of public participation is needed for mining activities, which can have substantial, far-reaching impacts.

Under BC mining law, the Chief Inspector may require that notice of a filing of a mine permit application be published in the Gazette and local newspapers. Where a notice of the application has been published, a person affected by, or interested in, the application will have 30 days to view the application and make written representations to the Chief Inspector.⁷³ The law then requires the Chief Inspector to take these comments into consideration.⁷⁴ The scope of this duty to take comments “into consideration” is not clearly defined.

Issue

There is no guarantee that the public will be notified that a mine permit has been applied for or that public opinion will affect the Chief Inspector’s decision about whether or not to issue a mine permit.

Recommended Solutions

Notify public of all mine permit applications and make copies of the application readily available for public viewing

[Tags: Mine Permit Application; Notice; Consultation; Public]

As indicated above, BC laws do not mandate that notice of a mine permit application always be given to the public: rather, the requirement to provide notice is subject to the Chief Inspector of Mines’ discretion.⁷⁵ By contrast, mandatory public notice is legally mandated in other jurisdictions – for example:

• In the US, the federal mining law requires a mine permit application to include a copy of the applicant’s advertisement of the application. This advertisement must have been “published in a newspaper of general circulation in the locality of the proposed site at least once a week for four successive weeks”, and include “the ownership, a description of the exact location and boundaries of the proposed site sufficient so that the proposed operation is readily locatable by local residents, and the location of where the application is available for public inspection”.⁷⁶ To ensure public access, the law requires that surface coal mining and reclamation permit applications be filed with “the recorder at the courthouse of the county or an appropriate public office approved by the regulatory authority where the mining is proposed to occur”.⁷⁷
• In Minnesota, notice of a pending mine permit application must be filed in a local newspaper at least once a week for four successive weeks before the application is filed.⁷⁸
• In South Dakota, notice of a mine permit application must be published in a local newspaper once a week for two weeks after the application is filed. This notice must include the:
  • identity and address of the applicant;
  • location of the proposed mining operation;
  • primary mineral to be mined;
  • proposed dates of commencement and completion of the operation;
  • proposed future use of the affected land;
  • location where additional information about the operation may be obtained; and
  • location of office and final date for filing objections.⁷⁹
  • In Ontario, proposals to award surface rights for mining operations, to approve closure plans and to enter lands to rehabilitate mine hazards must be posted on an on-line, publically accessible environmental registry. This process provides notice to the public and an opportunity to provide input that must be considered by the government before it makes a final decision in relation to these instruments.⁸⁰
  • In Sweden, the regulatory authority must send notice of the application and a copy of the environmental assessment to the affected property owners and other right holders identified in the mining legislation.⁸¹
  • In Burkina Faso, the mining legislation states that mine permits can only be granted after a public inquiry has been open for one month in the concerned districts.⁸²
  • In New South Wales (Australia), an applicant for a mining lease must, within 14 days of filing the application, publish a notice in both a state-wide and a local newspaper.⁸³
  • In Western Australia, notice of the mine permit application must be served on all interested parties (the owner and any leaseholder or mortgagee), a copy of the application must be advertised in a state-wide newspaper and all mining proposals must be made available for public inspection.⁸⁴

As part of this requirement, proponents should also be required to make their mine plans available to the public and to First Nations for viewing of proposed site boundaries and the location of mine infrastructure, such as tailings impoundments.

Hold public information sessions during government’s review of mine permit application

[Tags: Mine Permit Application; Notice; Information; Public]

The Organisation for Economic Co-operation and Development (OECD) recommends that the public should be granted an opportunity to comment on permit applications before the regulatory authority reaches its decision.⁸⁵ Public information sessions provide important opportunities for dialogue between the local community, miner and government before a development is approved and carried out. These sessions must be held sufficiently early in the development process to allow modifications to proposed plans in response to public input. ⁸⁶ The importance of public sessions was recently recognized by the BC Auditor General who found that direct discussions between the public and government officials were an important method of influencing decision-making. The Auditor General further recognized that the public were more likely to engage in public participation on a face-to-face basis and unlikely to participate via the internet.⁸⁷

The importance of public hearings are clearly recognized in Minnesota, where they are mandatory when “any person owning property which will be affected by the proposed operation” or a “local governmental agency having responsibilities affected by the proposed operations” files written objections to the proposed application.⁸⁸ The public hearing must be held “in the locality of the proposed operations within 30 days of receipt of such written objections and after appropriate notice and publication of the date, time, and location of the hearing”.⁸⁹ The proposed amendments to Quebec’s mining legislation also mandate public consultation in the local area before a mining lease application can be filed. The rehabilitation and restoration plan must be available to the public at least 30 days before such consultation begins.⁹⁰

Provide funding for public to participate in mine permit application review

[Tags: Mine Permit Application; Consultation; Public; Funding]

The public right to participate and the availability of costs for that participation are inseparable issues. If we conclude that the public can and should contribute, it necessarily follows that sufficient resources should be made available to enable them to present an effective case.

– Linda Duncan (1984)⁹¹

The complexity and extensive documentation associated with proposed mining activities often makes it impossible for members of the public to engage in the review process. Direct funding grants to public representatives can help promote meaningful public engagement. Direct grant funding has been provided in several proposed resource development projects including the BC Royal Commission of Inquiry into Uranium Mining, the Mackenzie Valley Pipeline Inquiry, the Beaufort Sea Environmental Assessment Panel and the Arctic Pilot Project.⁹² Recently, the Canadian federal government enacted the Jobs and Economic Growth Act which granted the Canadian Nuclear Safety Commission the authority to issue funding to the public, First Nations and other stakeholders to participate in its regulatory processes.⁹³

Establish criteria for use of public comments

[Tags: Mine Permit Application; Consultation; Public]

Local communities often have in-depth knowledge of local social and environmental conditions and can be a source of invaluable information. In BC, government policy documents state that one of the purposes of the Regional Mine Development Review Committees is to work “with project proponents, First Nations and potentially affected communities early in project planning to identify and scope the issues and information required to satisfy a co-ordinated approach to meeting all provincial, local and federal government statutory permitting requirements, to the extent possible.”⁹⁴ However, this approach is not codified in law there are no legal criteria for incorporating public comments into decision-making. The BC Auditor General recently recognized this as a problem: “although most governments are consulting with the public, they do not consistently consider the feedback they receive. Governments need to be clear on how they will consider the input and how they will follow up with the public to demonstrate that they have met their commitments in this regard.”⁹⁵

Conversely, in Oregon, mining legislation clearly states that public information meetings and comments periods for chemical process mine permit applications are intended to “determine the data that should be collected during the baseline data collection phase of the consolidated application process to address the issues identified”.⁹⁶ In addition, Oregon’s legislation clearly states that the purpose of these hearings and of the acceptance of written comments from the public is to determine “whether the information contained in the consolidated application is complete and sufficient to allow the permitting agencies to determine whether to issue a permit”.⁹⁷ Such explicit descriptions of how public comments will be used can help promote meaningful and effective public consultation.