Summary of Environmental Law in Canada

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18 Mining

 

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18.1 Institutions with Authority over Mining

 

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Mineral title belongs to the provincial Crown. Mining is generally regulated by the provinces. Section 92A(1) of the Constitution Act gives provinces constitutional jurisdiction over mineral exploration, development, conservation, and management. A mine can be defined as "a place where mechanical disturbance of the ground or any excavation is made to explore for or to produce coal, mineral bearing substances, plaster and minerals, rock, limestone, earth, clay, sand or minerals" and "all activities including exploratory drilling, excavating and site reclamation".

The provincial ministry responsible for the environment, natural resources and/or energy is usually in charge of regulating mining activities pursuant to provincial legislation. Most provincial mining legislation requires a permit or other authorization before a mine is allowed to be developed or operated. Different procedures apply according to the type of activity involved, e.g. surface exploration, bulk samples, test shipments, new mines, and expansion of producing mines.

The level of public consultation and the degree of detail of information required for a mines permit vary according to the proposed level of exploration and/or mining activity. The level of consultation increases with the degree of disturbance.

Provincial environmental assessment statutes often apply to a variety of mining projects. Thresholds vary according to the provisions of the environmental assessment legislation. The federal government also regulates mining wastes that may affect fish or fish habitat, pursuant to the Metal Mining Liquid Effluent Regulations issued under the Fisheries Act.

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18.2 Exploration and Development of Mines

 

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In most of Canada, the free entry system prevails. Any person may stake a mineral claim. The holder of the claim is required to pay an annual fee or to perform certain amounts of exploration and development on the site. The claim holder is entitled to apply to the provincial government for a mining lease, which is a prerequisite for developing a mine. Most land is available for mineral exploration; land in protected areas, in the agricultural reserve, Indian lands, and populated areas are not open for mineral exploration.

Provinces use different procedures to regulate mining activity. For example, in British Columbia, the proponent must submit a permit application for all mechanized surface exploration. The application includes information about the mineral title, the operator, the program of work, and the proposed reclamation plan. For minimal surface disturbance in a non-sensitive area, a letter permit is issued by a district inspector of the Ministry of Energy, Mines and Petroleum Resources. If a mechanized work program is contemplated, the district inspector follows a consultation procedure with other government agencies, following which a permit will be issued. For exploration in highly sensitive areas, further referrals will be made by the Ministry to, for example, the inter-agency management committee, other government agencies, and/or public stakeholder groups.

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18.3 Regulation of Mining Wastes

 

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Provincial mining legislation, policies, and codes of practice, usually have specific requirements for the control of mining wastes. Most legislation requires that mine proponents show that any waste resulting from mining activities can be technically and economically managed. Some legislation requires the posting of bonds to ensure that reclamation will take place when the mine is closed.

General provincial environmental or waste management legislation also applies to mining wastes. Permits, with terms and conditions, are usually required if waste from mining operations is to be introduced into the environment. Often, governmental authorities have wide discretion in issuing these permits.

The federal Metal Mining Liquid Effluent Regulations, made pursuant to the Fisheries Act, set limits for five metals as well as radium, suspended solids, and pH in metal/mine effluent discharged to waters used by fish.

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18.4 Reclamation of Mines

 

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Provincial mining legislation establishes standards for the reclamation and ongoing cleanup and monitoring of mines. These standards comprise the minimum requirements for water quality, long-term stability of waste rock dumps and tailing structures, site clean-up and treatment and monitoring of discharges. For example, in British Columbia, the Health, Safety and Reclamation Code for Mines provides that every owner, agent, and manager must institute and carry out a program of environmental protection and reclamation in accordance with the standards described during the life of the mine.

Legislation in most provinces provides that the proponent must file a plan outlining the details of the proposed work and a program for the protection and reclamation of the land and water courses affected by the mine. Significant amounts of money often need to be posted as security for mine reclamation and to provide for the protection from and mitigation of damage to water courses affected by the mine.

Mines that have not been reclaimed to a satisfactory level may be classified as contaminated sites. Such classification allows the assignment of liability for cleanup of the contamination and the setting of standards for remediation. In some provinces, such as British Columbia, public involvement in reclamation security occurs through publication of the application for a mine permit.

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18.5 Mining Rights on Public Lands

 

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Provincial legislation governs mining rights on public lands. Different forms of title can be acquired under provincial legislation. For example, there are mineral claims and mining leases. Provincial legislation sets out the requirements for staking and recording claims, and usually states that the recorded holder of a claim is entitled to those minerals that are situated vertically downward from and inside the boundaries of the claim.

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2003