Table of Contents > Reports > Legal and Institutional Barriers to Collaboration Relating to Orphaned/Abandoned Mines (OAMs) Abstract and Summary > Table of Contents > Introduction > Background and Workshop Review > Presentations > Panel Presentations and Breakout Groups
4 DAY 2: PANEL PRESENTATIONS AND BREAKOUT GROUPS
4.1 PANEL PRESENTATIONS AND PLENARY DISCUSSION
4.2 BREAKOUT GROUPS
4.2.1 Breakout Group 3
4.2.2 Breakout Group 1
4.2.3 Breakout Group 2
4.2.4 Breakout Group 4
4.2.5 Breakout Group 5
4.3 ROUNDTABLE SUMMARY
4.1 PANEL PRESENTATIONS AND PLENARY DISCUSSION
Patrick Finlay, Chief, Minerals and Metals Division, Environment Canada
Patrick identified a number of barriers to and opportunities for collaboration. He suggested a need for an overall policy framework for dealing with OAMs; the lack of comprehensive standards for cleanup; the need for standards of performance for OAMs; potential conflicts of interest as a result of the different roles within some agencies; the lack of committed funding (both provincial and federal); and lack of recognized and transparent due processes.
Robert Lauer, Chief, Financial Analysis and Royalties Administration, Indian and Northern Affairs Canada
Speaking from a Northern perspective, Robert remarked that he is not convinced that any change in legislation is needed to deal with the issue – wholesale change to legislation is not the best use of departmental resources, and amending statutes or developing new regulations is also a resource-intensive process. Robert reiterated that barriers can be overcome with creative use of existing legal mechanisms, and a multi-disciplinary approach used by INAC.
Given the magnitude of the OAM problem in the North, Robert said that the only real solution is taxpayers’ money – only the government can provide the amount of money required to deal with the issues. Multi-year funding is required to (a) deal with ongoing care and maintenance and (b) to plan remediation in a sensible and systematic fashion. Without the assurance and reliability of multi-year funding, remediators are driven to “band-aid” solutions.
Robert also discussed process costs as a barrier to reclamation – what he categorized as “simple and straightforward” applications, such as applying for a new water licence, can end up costing millions (i.e.: the case of Faro, where renewing the water licence through the current environmental assessment process will cost $2 million). “Dragged out” processes and high process costs eat up finite resources, and reflect a fundamental lack of trust among participants, which Robert noted may actually be the biggest barrier to proceeding with cleanup efficiently.
Robert’s key questions were: How do we structure a process for dealing with OAMs that is not adversarial and does not consume huge amounts of time and money? How do we deal with process costs? How do we get groups to the same table, and get them to trust one another?
Glen Nolan, Chief, Missanabie Cree First Nation
As an Aboriginal representative and a resident of a northern mining area, Glen pointed out that current efforts with regard to OAMs are missing the social element. For the most part, those involved in OAMs do not live in the affected areas, do not have to deal first-hand with the impacts of OAMs, and as a result their efforts lack the necessary social context and content. The isolation of the social element limits the effectiveness of the work and the comprehensive improvements that the people in these areas deserve. Glen commented that the purpose of remediation action must go beyond just stopping pollution to making the areas safe for communities.
Another barrier that Glen recognized is the First Nation’s distrust of the Mining Act – it is a legislative problem that has continued to foster mistrust. A third barrier is the lack of funding – there is simply not enough money to do the work that needs to be done to effectively deal with the problem.
Based on these identified barriers, Glen provided three recommendations. First, baseline studies are critically important in setting appropriately high standards for fixing the problem, as well as achieving an understanding against which to gauge and assess current and future activities to ensure that the problem is not being made worse. Second, studies on OAMs should include a wider scope of issues and embrace social matters so that the concerns of people who live in these areas and use the natural resources are considered. Lastly, Glen recommended that the bar be raised on fixing problems, making things better instead of just not making them any worse.
Glen pointed out that, for Aboriginal groups, damage to the land seriously restricts their access to and use of resources, largely due to safety concerns. While communities in the north will always be burdened by the processes of yesterday and today, much can and should be done to lessen the impacts.
In the plenary discussion following the panel presentations, Glen was asked to elaborate on how he feels knowing that Aboriginal communities are at risk, yet people are afraid to take action to help them because of legal liability issues. Glen responded that it frightens him that there is a population at risk that the government is not willing to help. There needs to be more effort from the federal government to step in when the provincial or municipal government will not. At the same time, examples of federal neglect should not absolve the provincial government from taking action.
John Schisler, Saskatchewan Environment
John explained that while, in his opinion, the largest barrier is the liability issue, it had already been well discussed in previous discussions and he would thus focus on other issues.
John commented that there needs to be both federal and provincial legislative changes, and disagreed with the creative use of existing legal mechanisms to overcome barriers, which he viewed as “working around things to make them
Maxine identified three barriers and recommendations for each. The first barrier was the lack of clear mechanisms for dealing with OAMs. Her recommendation was to develop a comprehensive framework to address various circumstances (i.e.: simple versus complex sites) that includes federal and provincial collaboration, Good Samaritan laws, indemnification for volunteers, limited liability, adapting insolvency laws, site-based environmental standards, and creative business solutions.
The second barrier was the government’s limited ability to act in light of the complexity of the problem, jurisdictional differences, and scarcity of resources. Her recommendations were to apply laws to prevent future problems, provide funds and resources for five to ten year planning for specific projects, provide incentives for small-scale cleanup, and develop synergies with industry, First Nations and communities, and, for large complex sites, provide incentives for partnerships.
The third barrier was the need for better site information, namely on public safety, health and environment, and social impacts, to sort and set priorities and design appropriate plans. Her recommendation was to categorize OAMs as small, relatively straightforward sites or large, complex sites, and manage accordingly. Small sites have greater potential for collaborative projects because the issues are less complex and perhaps more manageable. Complex sites do not lend themselves well to collaboration in the same way as the smaller less complex sites do, but do provide great foundations for progressive work and partnerships. When dealing with complex sites it is important to remember that the problem took many years to create and cannot be solved overnight.
In the plenary discussion following the panel presentations, Maxine was asked to clarify the point that greater collaboration is possible on small sites. Maxine explained that if working on a small site, the problem, safety risks and hazards, and solution are more likely to be straightforward and easily identifiable. These types of situations lend themselves to collaboration (i.e.: with community and Aboriginal groups, environmental organizations, etc.) better than larger and more complex sites.
Brennain Lloyd, CEN and Northwatch
Brennain discussed the importance of context in understanding and acting on OAM issues, that is, a context that includes more than 10 000 abandoned mines, various jurisdictions and a variety of approaches and concerns. For example, all stakeholders must be “on the same page” and check their assumptions with one another in order to engage in concerted action. Understanding the context, both on and offsite, is important in developing appropriate plans and strategies. This context must include social, environmental, and economic concerns of all players (i.e.: First Nations, public, industry, government, etc.). For example, the economic context must go beyond the effects on government and industry, and also deal with economic impacts on local people, such as lost opportunities.
Brennain identified three key “elements of the cure”. The first element was the right principles – she stressed the importance of keeping the CCME principles close at hand, and emphasized the importance of other principles such as polluter pays and sustainable development. The second element was clarity regarding the players and their roles. She identified three categories of players: [potential] volunteers, industry, and government. Volunteers include watershed groups, community organizations, First Nations communities, environmental groups, service clubs, etc., and should be eligible to receive technical assistance from government. It is important to be realistic about the role and effectiveness of volunteers – while a useful group, volunteers cannot take remedial action very far due to a lack of resources. The key role of industry players was identified as prevention, and also in funding the delivery of services and operational support. As with industry players, the key role of government was identified as prevention. Government should also have an oversight role, provide technical expertise and institutional support (including inventories and long-term monitoring, development and enforcement of appropriate standards, etc.). In order to be effective and efficient, governments must also address serious staff deficits. The third “element of the cure” was practical strategies and approaches, including good site evaluation/assessment/baseline studies; good regulatory oversight; technically and environmentally sound remediation plans; clear and consistent standards; a clear public role; good review and monitoring; enforcement; action on inappropriate outcomes; open accounting; and funding. As an overarching theme, Brennain closed with what she termed “a brief theological dissertation”, retelling the story of the Good Samaritan, in response to the support for "Good Samaritan” legislation expressed by other participants. In particular Brennain stressed the importance of perpetual care, which is inherent in the story of the Good Samaritan.
As a point of interest, Brennain clarified that most Canadian ENGOs are not opposed to remining. However, remining does not mean that a different set of standards is put in place for these operations. Environment and human health still have to be protected to the same degree as with currently operating sites.
ADDITIONAL PLENARY DISCUSSIONS
From an industry point of view, it was made clear that the Good Samaritan legislation is absolutely necessary. The industry is not concerned whether or not they are included in the volunteer definition, but need to be covered by the Good Samaritan legislation.
The question was raised regarding how long it takes to develop baselines. Those who responded were unsure of the exact costs, and noted that they would vary based on site-specific circumstances and the availability of datasets. Baseline studies were identified as time and resource intensive, but a vital part of the remediation process that should be accounted for in the funding model. Other organizations, such as the U.S. EPA and the CCME, have established frameworks for human health and ecological reviews, respectively, which can be drawn from in designing baseline studies and risk assessments. It is important to include First Nations and other communities at risk in risk assessments in order to understand all of the possible risk paths.
The point was also raised that closure standards for currently operating sites should be the same for OAMs. Another participant noted that it is a challenge to articulate standards to a bottom line or recommended practice that is useful at the site level. A third participant commented that nobody wants standards to be compromised, but when faced with limits in time and money and the desire to do as much good as possible, high standards might not be met, and a “lower” standard for OAMs might be more appropriate. It was suggested that standards for OAMs not be referred to as “lower” than those for operating mines, but instead as “interim standards”.
4.2.1 Breakout Group 3
There was some discussion around the purpose of and need for reviewing environmental legislation and assessment processes. BOG 3 explained that the existing system of environmental assessment (EA) and regulation is designed to regulate projects of economic benefit to the proponent. Mine reclamation projects undertaken by the government have a different purpose, and existing regulatory and assessment processes are not tailored for those projects. However, it was pointed out that a number of different environmental assessment regimes are in place (i.e.: there is a great deal of variety built into the federal EA process, depending on which class of EA is being considered). It is important to be mindful of this variety, and comments about EA and EA reform need to be made within that context, rather than assuming that every EA is burdensome. It was also noted that EA might be the only opportunity for someone living in an affected community to find out about and influence the project. For small projects, EA at the federal level is not an impediment – there is already an exclusion list, and many small projects are exempt from EA or handled very quickly. Larger projects are more contentious, and the EA project is important in raising awareness and allowing for community involvement. BOG 3 reiterated that the intention is not to remove EA and eliminate stakeholder involvement, but to recognize that OAM projects are different, and to take a look at how they are reviewed and regulated so that the processes are reflective of these differences.
The point was raised that a distinction needs to be made between charitable work and work done for other purposes – the type of work must be an underlying theme in, and will affect the outcome of, these types of discussions. BOG 3 clarified that they were looking at collaborative work, where somebody is helping the government clean up, not somebody cleaning up their own site.
4.2.2 Breakout Group 1
PLENARY WITH BREAKOUT GROUP 1
In terms of what should be done first, BOG 1 discussed the need for an umbrella, regulatory framework that would need to be developed before some of the more detailed issues could be addressed. A participant asked whether BOG 1 was referring to a distinct regulatory framework for dealing with OAMs, that is, a specific regulatory process distinct from other provincial/territorial/federal legislation. BOG 1 replied in the affirmative, and discussed the value in capturing all components of other regulations as they are specific to mines but, at this time, are not necessarily presented in the context of OAMs, into new, dedicated OAM legislation that recognizes jurisdictional differences and gaps and could be adopted across jurisdictions (no predetermined decision was made on what this legislation would contain). Another participant commented that dedicated OAM legislation would be one way of working around the issue of having to go through three legislative jurisdictions to have something approved.
However, some participants were not convinced that dedicated legislation is the appropriate approach, and argued that other mechanisms might be quicker (i.e.: having the department write a letter of indemnification for volunteers). The point was also raised that legislation does not always give certainty – current legislation is not even communicated. BOG 1 clarified that their presentation did not use the word certainty, indemnification, harmony (in terms of harmonizing existing legislation), or any downgrading of standards. The key idea was that, when developing new legislation, it is important to take all existing legislation into account.
Another participant voiced that from a government perspective, in the absence of law there is the absence of the will to do things – if there is nothing to apply there is nothing to do. With law comes the power to get this accomplished, such as defining OAMs and setting up inventories and action plans, etc.
4.2.3 Breakout Group 2
BOG 2 clarified their assumptions that “volunteers” do not include those involved in remining, and any interim standards would apply only to volunteer activity.
BOG 2 was asked to clarify what is meant by “simplified permitting processes”. BOG 2 explained that they were referring to streamlining the permitting process so that a person/organization/group, etc., can get one permit for the work that needs to be done, instead of having to get a number of permits from different places. Requirements would not change, but the permitting process would be made more efficient. The concern was raised that, while speeding up the permitting process may be easy for smaller projects, the complex sites need to have a more detailed permitting process that allows for community involvement. BOG 2 recognized this as a good point, and suggested that perhaps the permitting process can be tied into the sliding scale of impact (i.e.: sites with a more serious impact have a bigger permitting process). BOG 2 further explained that they are recommending the Good Samaritan legislative approach, with two to three levels of Good Samaritan permits, recognizing that large complex projects will not be undertaken under the Good Samaritan Act.
4.2.4 Breakout Group 4
One participant, who did not agree that legislation is necessarily the right approach, felt that while it is good to do analysis, BOG 4 had already decided that the endpoint should be a legislative framework. In light of this decision, the participant questioned the purpose of the analysis. BOG 4 replied that the term “legislative framework” was used to intentionally broaden beyond the idea of developing new legislation.
4.2.5 Breakout Group 5
One participant reiterated that bounds have to be placed on Good Samaritan legislation. This legislation should only apply to charitable and donated goods and services, not on commercial or for profit-making purposes.
BOG 5 clarified their third action (achieving regulatory certainty) by explaining that since most existing environmental legislation for operational mine sites is “command and control”, there is a need to promote opportunities for volunteers by reviewing existing command and control legislation and determining, in the volunteer context, what impediments it causes.
In their presentation, BOG 5 differentiated between the “uglies” and the “megauglies” – a participant asked whether the “megauglies” are so costly to clean up that BOG 5 expects there would be no incentive at all for volunteers to become involved. BOG 5 explained that helping with the “megauglies” is probably not something volunteers could even consider because they are complex, long-term, national issues with huge financial costs and environmental liability potential. It may be possible for volunteers to participate in a smaller project within the larger remediation project, but the science, complex nature, need for consultation, etc. of large complex sites mean that they do not lend themselves well to volunteer work.
In response, another participant noted that while smaller sites might be less complex, they still have other kinds of dangers and require detailed plans. Unless the resources are available to assess and plan, it is difficult to know how to “plug” volunteers into the right activity. Unless this plan can be developed and someone put in charge of it who can direct the volunteers, this type of participation does not work out well. In term of regulatory certainty, there seems to be the assumption that the regulatory process is just a “bunch of hoops to jump through”; this is not the case, since there is no way of being sure what the outcome of the process will be. BOG 5 explained that they are not trying to presume an outcome, but are concerned about the intention behind the process – there needs to be certainty around what people expect out of the process and why they are using it in the first place.
4.3 ROUNDTABLE SUMMARY
Some participants felt that it is important to: recognize the existence/raise the profile of OAMs (in political/legislative landscape); acknowledge that OAMs have to be dealt with and that help is needed; categorize and prioritize sites; conduct critical analyses of existing legislation and procedures to establish an approach to facilitate enabling processes; and/or develop a mechanism to guide OAM reclamation and facilitate cooperation. The need for a realistic policy and legislative framework that recognizes the responsibilities and rights of all players and establishes common objectives was acknowledged. The process must be inclusive, multi-stakeholder and holistic. There were varying opinions on the need for new legislation – some felt that existing legislation could be used in creative ways to overcome barriers, while others saw the need to amend existing legislation or create new dedicated legislation. On the legal front, a participant pointed out the importance of recognizing the problem of OAMs as a matter of law, and establishing a comprehensive legal response.
Improved cooperation, collaboration, communication, transparency, efficiency and simplification were perceived as crucial elements in any OAM efforts. Lack of funding was acknowledged as one of the most serious and fundamental stumbling blocks.
Other participants recognized the need to refine and accelerate the permit process (alleviate fiscal and temporal time constraints) to maximize the scarce dollars that go into remediation. Many felt that the current assessment and review processes could be more cost and time efficient. Building trust (across sectors and especially with affected communities) may be one way of increasing coordinated innovative solutions while at the same time reducing assessment and permitting costs. The need for common sense was also highlighted constantly – do what makes sense, getting as much done as possible with the limited resources available, but without compromising environmental and human health and safety. It was also recognized that while in many cases processes do create better projects, it might not be possible to get through the process in time (i.e.: projects at the end of the fiscal year).
Related to this previous issue is the broader obstacle of the difference in policy and procedures between the different levels of government. A core set of principles that everyone can agree on needs to be established in the Good Samaritan legislation (recognizing that there may still be regional issues that must be dealt with), or a common set of standards that all players can work towards.
A participant indicated that the optimism displayed by participants in the workshop was encouraging – while those involved in the issue may have different ideas, they are all generally moving in the same direction, and there is optimism on going forward in a meaningful way. Another participant noted that those in the room have demonstrated that they recognize and respect each other’s values, which goes a long way in achieving progress.
One participant noted that there needs to be more trust amongst stakeholders working in the field, as well as perhaps more risk-taking. Another participant commented that trust between stakeholders requires non-compliance registries, community involvement, design of cleanup, monitoring, etc., which demonstrates the need for a comprehensive framework. Another participant remarked that while trust is important, it must be earned, which requires a holistic view of the entire mining process, especially the often forgotten but critical social context – affected communities must be considered and included in a meaningful way.
The point was raised that if progress is to be made, the government has to be adequately staffed to get the research, planning, oversight, etc., that they need. A fancy piece of legislation will not be effectively enforced if departments are faced with a serious lack of resources. The answer may be putting resources back into existing legislation, instead of creating legislation anew.
The need for clear definitions was raised for terms such as OAM, volunteer, reclamation, and remediation (i.e.: decide what is meant by reclamation or remediation and design a mechanism to define these terms on a site-specific basis). There is a need to develop consistent and coordinated procedures/standards to categorize different sites and to categorize different types of volunteers.
One participant noted the need for regulators to adjust their perspective to differentiate between more typical workload of approving projects for commercial gain versus projects for the common good, where commercial gain is not a factor.
One participant summed up the key issues in three words: prevention, investment and standards. The importance of precedents was also noted, which would clearly demonstrate what is achievable, what are the benefits, and the costs of inaction.
Last updated: 2003-09-26
© National Orphaned/Abandoned Mines Initiative (NOAMI) 2004