Lake Ontario Waterkeeper's comment to the Ministry of Northern Development Re: Mining Act regulation

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BACKGROUND

In 2007, the Ontario government amended the Mining Act to allow any person to apply for approval to rehabilitate a mine hazard on certain lands. On June 20, 2008, the Ministry of Northern Development and Mines released the draft amendment to O.Reg 240/00. This draft amendment lists the prescribed lands and the information that must be contained in an application for approval.

In the commentary below, Lake Ontario Waterkeeper:

  1. recommends two additions to the regulation that would protect the environment and ensure appropriate public consultation, and

  2. explains why the use of the term “Good Samaritan†is inappropriate.

    COMMENTARY

    The regulation could grant immunity to polluters for environmental contamination resulting from new activities in historically polluted areas and for generations to come

    The amendments to the Mining Act exempt a person or corporation who assumes control of a mine hazard from orders under the Environmental Protection Act and the Ontario Water Resources Act. Those orders typically require owners to control discharges, stop operations, develop and implement mitigation plans, remove waste, or remediate affected areas.

    Our first concern is that this exemption may also grant blanket exemption from Ontario's environmental standards. The Mining Act could be interpreted in a way that allows a corporation to operate with impunity, even if the polluting activities are not related to the remediation program. The language does not distinguish between contamination resulting from rehabilitation activities and activities related to new development or exploration. As a result, it may be possible for a voluntary rehabilitator to use its remediation activities as a shield for new pollution.

    Our second concern is that the exemption does not seem to end when rehabilitation is complete; the legislation simply states “on or after the day that a person begins rehabilitation …†[Section 139.2(7)] and the immunity from orders and directions flow from there. This could lead to confusion and to create additional environmental threats in the future.

    The exemption fosters a system of two-tier environmental protection in Ontario. Communities already contaminated with mine hazards could be legally entitled to less environmental protection than other communities for generations to come. This is a violation of environmental justice and is not in accordance with the Environmental Bill of Rights, the Environmental Protection Act, or the Ontario Water Resources Act. These statutes promise equal environmental protection and do not discriminate based on historic contamination.

    Recommendation #1 and #2: Waterkeeper recommends that two clauses be added to the proposed amendment that encourages remediation of mine hazards while protecting the public's rights to clean air and water.

    Such a clause could be added to the list in Section 9.2 of the amendment and read simply:

    9.2 An application for approval to rehabilitate a mine hazard under subsection 139.2(1) of the Act shall include the following information: ... (10) An assurance that activities on, in or under the lands described in the rehabilitation plan and not associated with rehabilitation will comply with the Environmental Protection Act and the Ontario Water Resources Act. 
 (11) An assurance that all activities on the lands described in the rehabilitation plan will comply with the Environmental Protection Act and the Ontario Water Resources Act once rehabilitation is complete.

    The Regulation does not guarantee community consultation or informed consent

    The purpose of the Environmental Registry, as set out in s.6(1) of the Environmental Bill of Rights, is “to provide a means of giving information about the environment to the public." When individuals or corporations apply for a licence, regulation, or policy that enables them to discharge contaminants into the air or water or bypass the environmental assessment processes, their proposals are posted to the Environmental Registry for public comment. Section 139(2) of the Mining Act is relatively new, and has not yet been categorized as a Class I, II or III instrument under Environmental Bill of Rights.

    It is critical that the applications submitted to the Director under Section 139.2 of the Mining Act also be posted for public consultation on the Environmental Registry. Waterkeeper notes that mandatory closure plans under the same Act are currently categorized as Class I instruments, thus requiring a minimum of 30 days notice.

    Recommendation #3: Waterkeeper recommends that that Ministry of Northern Development and Mines either develop a policy for voluntary posting to the Environmental Registry or seek an amendment to the Classification of Proposals for Instruments, O. Reg. 681/94.

    The use of the term “Good Samaritan†is inappropriate The term “Good Samaritan†is not used in the Mining Act, O. Reg 240/00, or the draft amendment to O. Reg 240/00. It does, however, appear in the proposal description found on the Environmental Registry.

    Black's Law Dictionary defines the “Good Samaritan doctrine†as:

    One who sees a person in imminent and serious peril through negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to rescue, provided the attempt is not recklessly or rashly made. (Fifth Edition).

    The new “Good Samaritan†policy stems from a Memorandum of Understanding with the Ontario Mining Association, which represents the mining industry as a whole. This industry is responsible for the creation of the 5,700 abandoned mine sites in Ontario that the Ontario government now seeks to remediate. These sites pose a threat to the environment because of the actions of the mining industry, whether through negligence, a failure to implement best management practices, a limited awareness of environmental considerations, and inconsistent enforcement of provincial rules. The Mining Industry is not an independent third-party attempting to rescue a stranger at its own risk.

    Recommendation #4: Waterkeeper submits that the use of the term is not appropriate and recommends that a more neutral term be used, such as “voluntary rehabilitatorâ€.

    REQUEST

    In light of the above commentary, Lake Ontario Waterkeeper submits the following recommendations:

    1. The following clause be added to the amending Regulation: 9.2 An application for approval to rehabilitate a mine hazard under subsection 139.2(1) of the Act shall include the following information: … (10) An assurance that activities on, in or under the lands described in the rehabilitation plan and not associated with rehabilitation will comply with the Environmental Protection Act and the Ontario Water Resources Act. 2. The following clause be added to the amending Regulation: 9.2 An application for approval to rehabilitate a mine hazard under subsection 139.2(1) of the Act shall include the following information: … (11) An assurance that all activities on the lands described in the rehabilitation plan will comply with the Environmental Protection Act and the Ontario Water Resources Act once rehabilitation is complete. 3. That that Ministry of Northern Development and Mines either develop a policy for voluntary posting to the Environmental Registry or seek an amendment to the Classification of Proposals for Instruments, O. Reg. 681/94. 4. That the use of the term “Good Samaritan†is not appropriate and recommends that a more neutral term be used, such as “voluntary rehabilitatorâ€.

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