Criteria for Evaluating Mine Permit Applications

Overview of BC Law

In BC, the Chief Inspector of Mines has broad discretion to approve a mine permit application providing he or she “considers the application for a permit is satisfactory”.⁹⁸ The Minister of Energy and Mines is also empowered to exercise the same powers as the Chief Inspector where he or she “considers it to be necessary in the public interest”.⁹⁹ In assessing whether a permit is “satisfactory”, the Chief Inspector must ensure that certain, limited criteria are met. For example, the application must contain design standards for major impoundments, major dumps, tailings impoundments, water management facilities and plans for the prediction and mitigation of acid rock drainage.¹⁰⁰ In addition, the mine plan and reclamation program must be:¹⁰¹

• prepared while taking into account the health and safety of the public and workers;
• designed to make it as practicable as possible in the future to mine zones affected by the plan;
• designed to protect the land and watercourses; and
• prepared by licensed professionals when so required by the Chief Inspector.

The Chief Inspector may also refer the application to a Regional Mine Development Review Committee (“RMDRC”) or to other ministries and agencies.¹⁰² The RMDRC is composed of representatives from federal and provincial government agencies that may be affected by the proposed mine plan.¹⁰³ For projects that do not exceed BC’s Environmental Assessment Act thresholds (see discussion on thresholds in Chapter 6: Environmental Assessments for Mining Activities), potentially affected First Nations may also be invited to participate as standing members on a project-specific basis for mines proposed within their traditional territories.¹⁰⁴ However, for proposals that exceed the Environmental Assessment Act thresholds and where First Nations have already participated in the environmental assessment process with the Environmental Assessment Office, First Nations are not given the opportunity to be members of the RMDRC.

The RMDRC is charged with reviewing the mine permit applications and making a recommendation to the Chief Inspector as to whether or not the mine permit should be granted. In making its recommendation, the RMDRC first provides all government agencies with a statutory interest in mine development proposals 60 days to review the application.¹⁰⁵ When deciding whether to grant the mine permit, the Chief Inspector must take into consideration written representations submitted by affected or interested persons, recommendations from the RMDRC, and any written representations from other government ministries and agencies.¹⁰⁶

Issue

Although proponents are required to provide significant detail in their mine permit applications, BC laws fail to specify which factors must be taken into account in deciding whether to issue the permit and what factors will necessarily lead to a denial of the mine permit application.

Recommended Solutions: Consultation Criteria

Consider First Nations’ interests in reviewing mine permit application

[Tags: Mine Plan; Decision-Making; First Nations]

Although the Chief Inspector must take into consideration written representations submitted by affected or interested persons, there is no explicit statutory requirement that the Chief Inspector consider First Nations’ interests when reviewing a mine permit application. Conversely, many other jurisdictions clearly mandate that the regulatory authority take into account Indigenous peoples’ interests when reviewing mine permit applications. For example:

• In New South Wales (Australia), the regulatory authority must take into account the need to conserve and protect the features of Aboriginal, architectural, archaeological, historical or geological interest in or on the land on which the application is sought when deciding whether or not to grant the licence.¹⁰⁷
• In Sweden, the Sami right of reindeer husbandry must be taken into consideration in the award of permits under the mining law.¹⁰⁸
• Under Columbia’s Constitution, the state is bound to take measures to protect against detrimental effects brought to their attention by the community during the consultation period.¹⁰⁹ This constitutional article provides that the exploitation of natural resources in Indigenous peoples’ territories must not be carried out so as to derogate from the cultural, social, and economic integrity of the Indigenous communities.¹¹⁰

Recommended Solutions: Land and Resource Management Criteria

Consider whether Mine Permit Application complies with Land Use Plan

[Tags: Mine Permit Application; Criteria; Land Use Plan]

In BC, the mine plan is not required to comply with (or even acknowledge) any other land use planning instrument that may exist for the particular area. As such, the mine plan is developed and assessed in isolation from provincial, municipal or First Nations’ land use plans.

Conversely, in Ontario, the Far North Act explicitly recognizes First Nations’ rights to “contribute their traditional knowledge and perspectives on protection and conservation for the purposes of land-use planning”.¹¹¹ Under this legislation, a joint body can be established between interested First Nations and the provincial government.¹¹² This joint body is empowered to make recommendations regarding First Nation participation funding and dispute resolution processes. ¹¹³

Under Ontario’s Far North Act, there must also be a community land-use plan before a new mine can be opened.¹¹⁴ The community land-use plan must be reviewed at a minimum of once every ten years.¹¹⁵ The objectives of the land-use planning are: ¹¹⁶

• a significant role for First Nations in the planning;
• the protection of areas of cultural value in the Far North and the protection of ecological systems in the Far North by including at least 225,000 square kilometres of the Far North in an interconnected network of protected areas designated in community based land-use plans;
• the maintenance of biological diversity, ecological processes and ecological functions, including the storage and sequestration of carbon in the Far North; and
• enabling sustainable economic development that benefits First Nations.

Another approach adopted has been adopted in Sweden, where legal provisions that apply to mineral exploitation mandate that in determining priorities with regards to conflicting land-uses, “priority shall be given to the purpose or purposes that are most likely to promote sustainable management of land, water and the physical environment in general”.¹¹⁷

Consider and evaluate potential post-mining uses of mine-related facilities

[Tags: Mine Permit Application; Decision-Making; Criteria; Post-Mine Use]

Early consideration of post-closure land uses can help guide the selection of appropriate mine facilities. This is recognized in Montana where an assessment of the potential post-mining use of mine-related facilities for other industrial purposes must be included in the mine permit application. This must be accompanied by evidence of consultation with local government authorities, which ensures that post-closure mining activities reflect the wishes of local communities.¹¹⁸

Deny mine permit application for lands unsuitable for mining

[Tags: Mine Permit Application; Decision-Making; Criteria; Land Use; No Go Zone]

Some jurisdictions have clear legal provisions that identify land as being unsuitable for mining –mine permit applications will not be approved on those lands. For example, in South Dakota, mine permits will not be issued for operations proposed on “unsuitable land”, which is defined as land on which the following conditions cannot be satisfactorily mitigated:¹¹⁹

• reclamation is not physically or economically feasible;
• substantial deposition of sediment in stream or lake beds, landslides, or water pollution cannot feasibly be prevented;
• loss or reduction of long-range productivity of aquifer, public and domestic water wells; watershed lands, aquifer recharge areas, or significant agricultural areas;
• loss of biological productivity of the land would jeopardize threatened or endangered species of wildlife indigenous to the area;
• any probable adverse socio-economic impacts of the proposed mining operation outweigh the probable beneficial impacts of the operation; or
• affected land is special, exceptional, critical, or unique.

On the latter point, land is deemed special, exceptional, critical or unique if it possesses one or more of the following characteristics:¹²⁰

• it is so ecologically fragile that, once it is adversely affected, it could not return to its former ecological role in the reasonably foreseeable future;
• it has such a strong influence on the total ecosystem of which it is a part that even temporary effects felt by it could precipitate a system-wide ecological reaction of unpredictable scope or dimension; or
• it has scenic, historic, archaeological, topographic, geologic, ethnologic, scientific, cultural, or recreational significance.

Montana has adopted a similar approach. There, mining and prospecting is prohibited where it would adversely affect the use, enjoyment and fundamental character of the land itself or of neighbouring lands where these have special, exceptional, critical, or unique characteristics.¹²¹ Montana law explicitly states that when assessing lands for their historic, archaeological, ethnologic, and cultural significance, “particular attention should be paid to the inadequate preservation previously accorded Plains Indian history and culture”.¹²² This important provision explicitly attempts to recognize and overcome challenges posed by the cumulative loss of cultural sites.

Consider nature of mineral reserve in reviewing mine permit application

[Tags: Mine Plan; Decision-Making; Mineral Reserve]

Another important consideration in reviewing mine permit applications is whether the mineral deposit is sufficient to justify commercial exploitation: the lower the grade of deposit, the higher the risk of early mine abandonment. As discussed above, BC mine permit applications must include a mine plan that outlines projected volumes of ore and waste. However, there are no requirements as to how this data must be considered when deciding whether to approve the application. By contrast, in Zambia, the regulatory authority must consider “whether or not there are sufficient deposits or reserves of minerals to justify their commercial exploitation” when reviewing large-scale mining applications.¹²³

Consideration of mineral reserves should also be made in light of the needs of future generations. New Zealand’s resource management law requires all persons making decisions under the law to have particular regard to the finite characteristics of natural resources such as mining ores.¹²⁴

Recommended Solutions: Environmental Criteria

Conduct independent environmental studies and site inspections during reviews of mine permit applications

[Tags: Mine Permit Application; Criteria; Environment; Inspection]

Adequate environmental information must be obtained before a decision can be made on whether to approve a mine permit application. This need is recognized in New South Wales (Australia), where the regulatory body may require environmental impact studies to be carried out before making a decision on a mine permit application.¹²⁵ In addition, a preliminary site visit may be required before the regulatory authority can make a sound decision or when setting permit terms and conditions. In Montana, the regulatory authority is legally required to inspect a site before issuing a permit. Where adverse weather conditions delay this site inspection, the set permit review timelines may be extended.¹²⁶ Similar requirements are in place in South Dakota.¹²⁷

In the Yukon, before a mine permit may be issued, a government engineer must order an inspection of the subject lands. Applicants must also provide information and data concerning the proposed land-use to enable the engineer to evaluate quantitative and qualitative effects of the proposed land-use operation.¹²⁸ This information may result in the engineer imposing a variety of terms and conditions to the permit.¹²⁹

Consider cumulative effects in reviewing mine permit application

[Tags: Mine Permit Application; Criteria; Environment; Cumulative Effects; Cumulative Impacts]

In BC, there are no legal requirements to consider cumulative effects in the review of mine permit applications. In contrast, US federal law mandates that no permit application shall be approved until the application affirmatively demonstrates, and the regulatory authority concludes, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area, based on an assessment of probable cumulative impacts of all anticipated mining in the area.¹³⁰ Similarly in New Mexico, a mine permit application must include a cumulative impact assessment that outlines the: “probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems, including the dissolved and suspended solids under seasonal flow conditions, and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the director of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability”.¹³¹

Deny mine permit where cumulative impacts not sufficiently mitigated

[Tags: Mine Permit Application; Criteria; Environment; Cumulative Effects; Cumulative Impacts]

In Montana, the probable cumulative impact of all anticipated mining in the area on the hydrologic balance must be also considered. A mine permit application will be denied if the applicant is unable to design the proposed operation in such a manner as to prevent material damage to the hydrologic balance outside the permit area.¹³²

Deny application if site reclamation is unfeasible

[Tags: Mine Permit Application; Criteria; Environment; Reclamation]

In Manitoba, the director must be satisfied with the proponent’s closure plan for site rehabilitation before approving an application.¹³³ In Oregon, the regulatory authority must consult with local soil and water conservation districts regarding the feasibility of reclamation and give special attention to possible impacts to groundwater aquifers. Where reclamation is not achievable, the mine permit application will be denied.¹³⁴ This legal provision ensures that mining is only carried out where reclamation is possible. Importantly, this determination is based on the input of scientists familiar with local ecosystems in the area of the proposed mine. Similarly, in Montana, a mine permit will be denied if reclamation of the affected land cannot be carried out.¹³⁵

Recommended Solutions: Compliance and Capacity Criteria

Require proponent to have a local office before mine permit is granted

[Tags: Mine Permit Application; Decision-Making; Criteria; Local Office]

In the current global mining market, many foreign mining companies operate in BC from abroad. Where foreign companies do not have a local office, it can make public access to them more difficult. This problem presents itself with foreign owned BC companies. BC’s former Company Act required that at least one director was a BC resident and that the majority of directors were Canadian residents.¹³⁶ This requirement was eliminated in BC’s Business Corporations Act. Conversely, the importance of a local presence is still recognized in other jurisdictions. For example, in Zambia, mining rights will only be granted to companies who have an office established in the country.¹³⁷

Consider proponent’s past mining practices and history of compliance, and deny permit if previously convicted

[Tags: Mine Permit Application; Decision-Making; Criteria; Compliance; Track Record]

Unlike other jurisdictions, BC law does not require the Chief Inspector to consider the applicant’s track record or history of compliance before issuing a mine permit. A similar ‘risk-based’ compliance and enforcement regime is used by the BC Oil and Gas Commission, which must ensure that the track records of oil and gas companies are taken into account for monitoring and enforcement activities.¹³⁸

Not only is this a legal requirement elsewhere, but many jurisdictions prohibit the issuance of mining permits to applicants with a poor track record. For example:

• In New South Wales (Australia), the applicant’s environmental performance record will be assessed when evaluating a mining application. This includes details of any convictions under environmental protection legislation or other relevant legislation in the five years immediately before the application is made, as well as any revoked or suspended previous approvals under environmental protection legislation.¹³⁹ The regulatory authority may refuse to issue a permit to an applicant who has contravened the mining legislation or that “has been convicted of any other offence relating to mining or minerals”.¹⁴⁰
• Under US federal coal mining law, the applicant must submit a schedule listing all notices and final resolutions of violations of US laws “pertaining to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application”.¹⁴¹ Where this schedule indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of applicable laws, the permit application will be denied until the applicant submits proof that the violation has been corrected or is in the process of being corrected.¹⁴²
• In Colorado, no mining permits will be issued to any operators that are currently in violation of state mining laws.¹⁴³
• In Zambia, mining rights will not be granted to a company whose directors or shareholders have been convicted under a Zambian law and fined or imprisoned.¹⁴⁴
• In the Philippines, the government requires that applicants have a satisfactory environmental track record before they can enter into an agreement with the government to conduct mining activities.¹⁴⁵

Favour proponents with a demonstrated ability to meet legal requirements

[Tags: Mine Permit Application; Decision-Making; Criteria; Applicant]

In some instances, mine permit applications may be submitted by different applicants for the same land at the same time. In BC, priority is generally granted on a ‘first come, first serve’ basis.¹⁴⁶ In contrast, other jurisdictions grant priority to the most capable applicants. For example, in Victoria (Australia), where more than one application for a licence in respect of the same land is received on the same day, the regulatory authority must assign priority to the application it believes will best further the objectives of the legislation after considering the relative merits of the applications and the likely ability of each applicant to meet the legislative requirements.¹⁴⁷