Elizabeth Brubaker

Who should decide whether – and how – proposed mines and quarries will go ahead? If you ask many environmental groups, the answer is society at large, which must grant those proposing new projects a “social licence to operate.” If you ask the Mining Association of Nova Scotia – where a number of mines and quarries are in the works – the answer is the provincial government, which must “decide what is in the best interests of communities and the entire province.”

If you ask Environment Probe, the most important – and the most often neglected – decision makers are the individuals and communities who will be directly affected by a proposed project. These parties aren’t just stake-holders. They are rights-holders. They are the individual or communal owners who hold conventional or aboriginal title to the land. And they are the neighbours downwind and downstream, who, when governments do not issue pollution permits, have common-law property rights to a clean environment.

The mining association adamantly opposes empowering such rights-holders, warning that “additional regulation or involvement by municipalities, community groups or even individuals would be unworkable…. Any move in the direction of allowing individual landowners or members of a community to block mine approvals would be disastrous for the industry and the province.”

The mining association wants to leave decision making to the provinces. But frankly, our provinces aren’t doing a great job of protecting the environment. Federal environmental assessments aren’t better. Even if an EA finds that a project is likely to cause significant harm, the law provides that the government can decide that “these environmental effects are justified in the circumstances.”

Once the decision to go ahead with a project has been made, the mining association recommends that the government forcibly acquire the lands of owners who oppose it – which is exactly what Nova Scotia did to hasten the development of the Touquoy open-pit gold mine, when an Australian-owned mining company couldn’t persuade a Christmas tree farmer to sell his land, which had been in his family for more than 120 years. The Eastern Shore Forest Watch Association cautions that the Touquoy mine’s EA was inadequate. It warns of the release of arsenic, copper, and other contaminants into local waters, and of cyanide gas and acid-rain compounds into the air. And it notes that an effluent spill or a tailings pond dam failure could poison the entire watershed.

Nova Scotia landowners are likewise being forced to make way for another environmentally destructive project – the Black Point gravel quarry. With almost no warning, the municipality of Guysborough expropriated the land around the beautiful Fogarty’s Cove and plans to lease it to a US aggregate giant. If approved, the land will become part of the quarry, and adjacent Chedabucto Bay will become a marine terminal. (For more information on the Touquoy and Black Point expropriations, see Corporate Bullying: Expropriating for private purposes in Nova Scotia.)

The local fishermen’s association warns of the quarry’s potential impacts on the 72 fishing licence holders and four lobster fishermen in the area. The quarry may also threaten the jobs in tourism that rely on unspoiled wilderness. The Chronicle Herald notes that “perhaps the public interest in grinding up scenery for gravel at least needs further debate.”

Better than more debate would be to give power to the people who will be directly affected by proposed projects. These people know their lands and waters better than anyone else. They rely on them – sometimes for their livelihoods, almost always for their health – and must live with any changes to them. Instead of expropriating, governments should allow rights-holders to decide whether or not their lands should be turned into mines.

The question of who should make decisions about whether and how mines should operate is currently being debated in British Columbia. Attention is focussed on the Mount Polley copper and gold mine, where a tailings pond failure in August released 25 million cubic metres of water and tailings, making it the largest spill in Canadian history. Downstream waters remain contaminated with suspended solids, aluminum, iron, phosphorus, copper, and chromium. Clean-up is expected to take years.

After the breach, the Mining Association of British Columbia praised both federal guidelines and provincial regulations, calling them “among the most thorough in the world.” The BC mining ministry, it insisted, “does a very good job at oversight.” On the contrary: The provincial government has acted irresponsibly. Despite repeated warnings about the tailings pond in recent years, it allowed the Mount Polley mine to continue operating. Lax monitoring and enforcement have typified its regulation of mines across the province. It has greatly reduced the number of mine inspections, and has been loath to fine mining companies for infractions. Indeed, it has levied no penalties under the Mines Act since 1989.

The mining association argues that decisions about whether and how mines go ahead must rest with the provincial government – specifically, with the Ministry of Energy and Mines. But local residents beg to differ. A downstream First Nation insists that it should be able to determine whether the Mount Polley mine will reopen. And a group of First Nations affected by the disaster recently announced that it has created a detailed set of rules dictating how mining companies will operate in its territory.

Empowering affected individuals and communities is just one of the keys to making mines sustainable. The other key issue is ensuring that mining companies bear all of their environmental costs – through unlimited liability, through insurance to pay for clean-up in the event of an accident, and through bonds or letters of credit to cover the full costs of mine closure and remediation.

Governments should ensure that those harmed by mines retain their common-law rights to sue. The threat of being held liable for contamination will create powerful incentives for mining companies to protect nearby land, water, and air. Governments should require liability insurance that will cover the full costs of clean-up in the event of an accident. Mining accidents do happen, as this summer’s disaster at the Mount Polley mine tragically illustrated. The company had failed to prepare financially for the disaster, which could cost hundreds of millions of dollars to clean up. The company president committed to paying for the clean-up to the best of his ability, but his admission that the company doesn’t have sufficient funds in the bank, and doesn’t have sufficient insurance, undermines the value of that commitment.

Governments should also require remediation bonds or letters of credit that are sufficient to cover the full costs of restoration, monitoring, and maintenance after the mine’s closure. Our landscape is littered with abandoned mines – perhaps 10,000 of them – and too often taxpayers have been left holding the bag for costly clean-ups. The importance of this issue was recently highlighted by an announcement by the owners of the Bloom Lake iron ore mine in Quebec that they will be pulling out of the project. If they can’t find a buyer, they expect to face closure costs of between US$650 million and US$700 million. Such enormous costs are not unheard of – closure costs for the proposed KSM mine in BC could reach $1 billion. Critics point out that the bonds posted to cover such costs are generally a fraction of what the actual costs will be. That needs to change.

Projects that are truly sustainable shouldn’t be propped up with subsidies – not with below-market land prices that expropriations provide, nor with permissions to pollute, nor with tax breaks or royalty holidays. Instead, the “polluter pays principle” must be slavishly respected: All costs and risks should be borne by the mining companies themselves.

Please support Environment Probe’s work with a generous donation. And please help Environment Probe send a message to both governments and the mining industry: Only by empowering directly affected individuals and communities, and by making mines bear all their environmental costs, can we ensure that the industry is truly sustainable.