Volume 6: Issue 2 (2010)
Wanted: A Legal Regime to Clean Up Orphaned /Abandoned Mines in Canada
Joseph F. Castrilli
Abstract: This article describes the environmental, social, and economic problems posed by orphaned and abandoned mines and summarizes the state of Canadian law on the issue. Orphaned and abandoned mines are those for which the owner cannot be found, or for which the owner is financially unable to carry out cleanup. There are an estimated 10,000 such mines in Canada and more than 5,700 in Ontario alone, with cleanup costs expected to be in the billions, paid predominantly by taxpayers. Current laws operate on the assumption that a responsible person is available, upon whom regulators may impose obligations. Under these laws, an orphaned or abandoned mine, which by definition has no responsible person, is implicitly presumed not to occur. These laws largely do not apply to orphan/abandoned mines, and have not developed mechanisms for addressing them, other than through an emergency response by government using public monies to remedy the problem. Financial security requirements have also proven to be a weak link in existing legislation. Predictions of the quantum of financial security needed from applicants to ensure proper closure and rehabilitation been inaccurate. In these cases, when mining companies became insolvent or disappeared, funding necessary to avoid major shortfalls in cleanup costs had to be provided by the government, with little expectation of cost recovery. A solution to this situation will require legislative reform, including imposing fees on mining companies that will allow governments to establish dedicated orphaned and abandoned mine funds to finance cleanups.
Graham Mayeda
Abstract: The demonstrations against uranium mining exploration by aboriginal and non-aboriginal residents of Sharbot Lake, Ontario illustrate how three areas of law—the law of injunctions, contempt of court proceedings and the law of public interest costs—can have a negative impact on access to justice for protestors seeking to promote and protect environmental and human rights. Using these protests as a case study, the author suggests how the law in these three areas can be improved in order to make it more difficult for private individuals, corporations, and govern- ment to use the threat of imprisonment and crip- pling costs awards to dissuade aboriginal and environmental protestors from vindicating their rights. These suggestions range from strategic legal action to change legal rules on injunctions, contempt of court proceedings and costs awards, to anti-SLAPP suit legislation to facilitate access to justice for protestors.
Participatory Rights in the Ontario Mining Sector: an International Human Rights Perspective
Penelope Simons and Lynda Collins
Abstract: There has been a growing focus in Canada on the envi- ronmental and social impacts of national extractive companies operating extraterritorially. However, recent disputes concerning the lack of public consultation on pro- posed large domestic mining projects, as well as disputes surrounding Aboriginal rights in lands subject to mining claims, have highlighted significant human rights con- cerns associated with Canada’s domestic provincial and territorial mining regimes. This article assesses, from the perspective of international human rights law, how both emerging and established international human rights of participation are treated in the Ontario mining sector. It examines the extent to which the general right to par- ticipation in environmental decision-making, the right of aboriginal communities to free prior and informed consent, and the right of peaceful assembly have been protected through Ontario’s mining regime and by the courts in disputes over mining activity on land subject to aboriginal rights and/or title claims. Two recent cases, Frontenac Ventures Corporation v. Ardoch Algonquin First Nation and Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, raise serious concerns as to whether domestic law, as it has been applied in the mining sector, is consistent with Canada’s international human rights obligations. Moreover, it is not clear that the new Far North Act and recent amendments to the Ontario Mining Act sufficiently address these concerns.
Sophie Thériault
Abstract: This article purports to analyze the legal framework of mining activities in the province of Quebec in light of the constitutional obligations incumbent on the province to consult and accommodate Aboriginal peoples. The author advances that the foundations of the Quebec mining regime, particularly the prin- ciple of free mining, are essentially incompatible with the implementation of its constitutional obli- gations towards Aboriginal peoples. She also suggests that neither Quebec’s environmental impact project assessment process, nor the “Impact and Benefits Agreements” can, at least in their current form, palli- ate the fundamental weaknesses of the mining regime. The conciliation between the Crown’s constitutional obligations towards Aboriginal peoples, on one side, and the Quebec mining regime, on the other, would require a radical reform of the pillars of the Quebec mining regime and even, if need be, of the relevant connected legal regimes.
