2.1 BACKGROUND
2.2 OBJECTIVES OF THE WORKSHOP
2.3 STRUCTURE OF THE WORKSHOP AND REPORT
2.4 WELCOMING REMARKS

The Workshop on Legal and Institutional Barriers to Collaboration Relating to Orphaned/Abandoned Mines (OAMs) was held on February 24th and 25th in Ottawa, Ontario. The workshop was a forum for information sharing and dialogue on improving collaboration relating to OAMs among a wide range of communities of interest, including federal, provincial, territorial and municipal governments, Aboriginal organizations, the mining sector and mining industry associations, and environmental and labour groups. All participants recognize that policy and legal issues surrounding third-party liability and OAMs need to be examined and overcome in a cooperative and transparent manner in order to deal more effectively with the OAM legacy.

The workshop provided an opportunity for more than 60 participants to identify and discuss the legal and institutional barriers to collaboration relating to OAMs, and establish recommendations and guiding principles for consideration by the National Orphaned/Abandoned Mines Advisory Committee.

2 BACKGROUND AND WORKSHOP OVERVIEW

2.1 BACKGROUND

Orphaned or abandoned mines are those mines for which the owner cannot be found or for which the owner is financially unable or unwilling to carry out clean-up. Many pose environmental, health, safety, and economic problems to communities, the mining industry, and governments in many countries, including Canada. The National Orphaned/Abandoned Mines Initiative (NOAMI) has been developed to address the legacy of Orphaned/Abandoned Mines and the associated environmental liability, human health concerns and financial costs.

In 1999 and 2000, a number of stakeholders put forth requests to the Mines Ministers to establish a joint industry-government working group, assisted by other stakeholders, to review the issue of abandoned mines. The Ministers supported this initiative and requested that a multi-stakeholder workshop be organized to identify key issues and priorities.

The Workshop on Abandoned Mines, held in June 2001 in Winnipeg, reviewed the issues for orphaned/abandoned mine sites and identified processes to move forward. Mines Ministers asked that a National Orphaned/Abandoned Mines Advisory Committee be struck to study various issues and initiatives concerning the development and implementation of remediation programs across Canada. One task of the Committee was to evaluate, in Canada, the U.S., and other countries, legal and institutional barriers to collaboration and to identify mechanisms for third-party collaboration. Joseph Castrilli, Barrister and Solicitor, developed a background paper outlining legal and institutional barriers and identifying legal mechanisms for third-party collaboration. The Committee also agreed to sponsor a workshop to provide participants with an opportunity to identify common challenges and share ideas/solutions across the sectors that would allow third parties to collaborate on clean-up and manage liabilities related to Orphaned/Abandoned Mines without assuming all liabilities. These include legal and institutional barriers, liability disincentives, and collaborative opportunities with respect to remedial action on Orphaned and Abandoned mine sites on a voluntary or limited basis.

2.2 OBJECTIVES OF THE WORKSHOP

The workshop objectives were:

• To identify, better understand and assess the legal and institutional barriers, along with the preferred options, that would allow third parties to collaborate on clean-up and manage liabilities related to Orphaned/Abandoned Mines ; and
• To develop recommendations and guiding principles for consideration by the National Orphaned/Abandoned Mines Advisory Committee and possible transmittal to federal, provincial and territorial governments.

2.3 STRUCTURE OF THE WORKSHOP AND REPORT

The National Orphaned/Abandoned Mines Advisory Committee sponsored the workshop. More than 60 people attended; participants included representatives of Aboriginal organizations and environmental groups, the mining sector, mining industry associations, and federal, provincial and territorial governments.

This report represents the output of the workshop. Sections 1 and 2 include a brief introduction, background information on the issues, objectives and structure of the workshop, and a summary of welcoming remarks. Section 3 provides a detailed overview of the presentations and related discussions that occurred on Day 1. Section 4 captures the panel presentations and plenary discussions that occurred on Day 2, reviews the ensuing breakout sessions, and summarizes the key points expressed in the final roundtable. Section 5 summarized the closing remarks. Appendix A provides the list of workshop participants. Appendix B duplicates the workshop agenda. Appendix C is a glossary of legal terms relevant to this workshop. Most presenters used “Power Point” presentations. These presentations are duplicated as Appendix D of these Proceedings and are attached as a separate file.

Day 1 of the workshop began with welcoming remarks from Christine Kaszycki, the Chair of the OAM Advisory Committee and the Assistant Deputy Minister, Manitoba Industry, Trade and Mines. The remainder of Day 1 comprised a number of information-sharing presentations:

• Overview of the legal and institutional barriers to collaboration (Joseph Castrilli, Barrister and Solicitor)
• Review of Pennsylvania’s Environmental Good Samaritan Act and related initiatives from the Pennsylvania Department of Environmental Protection (Scott Jones)
• Review of the us Federal Abandoned Hardrock Mines Reclamation Act of 2002 and related initiatives from the Mineral Policy Centre (Alan Septoff)
• A presentation on Abandoned Mines in the North from the Office of the Commissioner of the Environment and Sustainable Development (CESD) (Richard Arseneault)
• A review of the OMA/OMNDM Initiative by the OMA/Barrick Gold Corp. (John Martschuk)
• Liability, Legal and Institutional Barriers and Opportunities for Collaboration: Setting the Stage (Joseph Castrilli, Barrister and Solicitor)
• Site-Specific Experiences in Canadian Jurisdictions:
  • Experiences from the Manitoba Government (Christine Kaszycki and Edwin Yee)
  • Experiences from the Mining Sector (Wayne Fraser, HBMS)
  • Experiences from the Ontario Ministry of the Environment (Kenneth Jull, Beard Winter Barristers and Solicitors)
  • Experiences from the North (Robert Lauer, INAC)

Day 2 of the Workshop consisted of panel presentations and a plenary discussion, as well as breakout group discussions and reports to plenary, on the priority barriers to collaboration and recommendations/guiding principles to overcome these barriers. Elizabeth Gardiner of The Mining Association of Canada concluded the workshop with next steps and closing remarks.

The Workshop was planned and organized through the Workshop Organizing Team (WOT) whose members included:

Dr. W.R. (Dick) Cowan, Director of Mine Rehabilitation (Ontario Ministry of Northern Development and Mines)
W. Wayne Fraser, Director, Environment and Communications (Hudson Bay Mining and Smelting Co. Limited)
Paulette Fréchette, Mailing List Coordinator (Five Winds International)
Elizabeth Gardiner, Vice President, Technical Affairs (The Mining Association of Canada)
Charlene Hogan, Environmental Scientist, Special Projects and MEND3 (Mining and Mineral Sciences Laboratories, CANMET, NRCan)
Brennain Lloyd (Northwatch)
Barbara Mossop, P.Eng. MBA, Manager of Engineering and Environmental Services (Ontario Mining Association)
Fred Privett, Manager, Socio-Economic Benefits (Mineral Resources Directorate, Indian and Northern Affairs Canada)
Hajo Versteeg, Facilitator (Environmental Law & Policy Advisor)
Edwin J. Yee, Senior Consultant, Toxic Chemicals (Manitoba Conservation)

Hajo Versteeg provided facilitation services for the workshop. Karla Heath of Stratos Inc. provided recorder services.

2.4 WELCOMING REMARKS

Christine Kaszycki welcomed participants to the workshop. To set the context for the workshop, she provided an overview of the National Orphaned/Abandoned Mines Initiative (NOAMI) from its inception in 1999 to its current status, and outlined the objectives of the Barriers to Collaboration Task Group, which are based on recommendations regarding ownership and liability from the Winnipeg workshop held in 2001:

• Shared responsibility and stewardship where ownership cannot be established.
• Evaluate options for attribution of liability:
  • Allocative versus joint and several
  • Good Samaritan legislation
• Implement the polluter pays principle
• Evaluate regulatory measures to eliminate future abandonments:
  • Permit-blocking
  • Non-compliance registries

The major goal of this workshop was identified as determining specific recommendations for dealing with barriers to collaboration to bring to this year’s Mines Ministers' annual general meeting to be held in Halifax in September.

 ^{1 The Committee established four Task Groups to deal with work identified at the conference: Inventory Task Group; Community Involvement/Participation Task Group; Legal Approaches/Barriers to Collaboration Task Group; and Funding Models Task Group.}