Principal applicable environmental laws

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

Both federal and provincial (and, in Canada’s north, territorial) environmental laws apply to the mining industry.

The federal government has legislative jurisdiction over fisheries, navigable waters, federal lands (including Indian reserves and federal national parks) and environmental matters of international and inter-provincial concern. Certain projects may be required to complete a federal environmental assessment under the Canadian Environmental Assessment Act 2012 (CEAA 2012). The CEAA 2012 is most generally administered by the Canadian Environmental Assessment Agency, although the National Energy Board and the Canadian Nuclear Safety Commission may be in charge of the federal environmental assessment process depending on the nature of the project (eg, some uranium mine projects require an environmental assessment under CEAA 2012, which would be administered by the Canadian Nuclear Safety Commission). The Canadian Metal and Diamond Mining Effluent Regulations covers the discharge of mine effluent and mine waste into waters frequented by fish. It provides authorised limits for deposit of deleterious substances in water. In 2018, the Canadian government introduced amendments to this regulation. The main changes include lower limits for specifics deleterious substances and new substances have been added.

In 2018, the Canadian government tabled substantial reforms to the federal legal framework relating to the environment and major projects in Canada. Bill C-69, announced on 8 February 2018, proposes several significant changes, including proposals to replace the CEAA 2012 with a new Impact Assessment Act, creating a new Canadian energy regulator to replace the National Energy Board and enlarging the protections for navigable waters found in the current Navigation Protection Act (to be re-named the Canadian Navigable Waters Act). Bill C-68, announced on 6 February 2018, proposes significant changes to the federal Fisheries Act, which will, among other things, strengthen the fish protection and pollution-prevention provisions in that Act.

The provinces and territories are generally responsible for matters within their boundaries. Each province and territory has adopted laws and by-laws dealing with environmental protection to regulate the discharge of:

  • mine effluent;
  • atmospheric emissions;
  • water resources; and
  • the management of solid waste, noise and other environmental impacts.

These laws provide a regulatory framework to prohibit and limit the discharge of contaminants into the environment. This regulatory framework provides for a permitting system to authorise, subject to various conditions, activities that have or may have an impact on the environment. Most provincial and territorial jurisdictions require that mining projects be subject to an environmental impact assessment prior to the issue of the required authorisations.

Whether a project will be subject to an environmental assessment under provincial, territorial or federal environmental laws typically depends on the type and size of the project, the types of approvals required for the development of the project and the significance of the potential environmental and socio-economic impacts that could arise from the project. The outcome of the environmental assessment may result in the regulators imposing conditions or restrictions with respect to the environmental impact of the project.

The provinces and territories have also adopted requirements with respect to mine reclamation and closure as well as the requirement to provide financial guarantee. These are generally administered by provincial or territorial ministries responsible for mines or natural resources.

All three levels of government provide also a legislative framework in the event of failure to comply with the laws or by operating in violation with the term of, or without having first obtained, the necessary authorisations.

Environmental review and permitting process

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

Depending on the type, location and size of a mining project, it may be subject to both federal and provincial or territorial permitting requirements and environmental assessment processes. In northern Canada (Northwest Territories, Nunavut and Yukon), the federal environmental assessment legislation generally does not apply. Environmental assessments in these territories are regulated by local laws, namely:

  • the Mackenzie Valley Resource Management Act (Northwest Territories);
  • the Nunavut Land Claims Agreement (Nunavut); and
  • the Yukon Environmental and Socio-economic Assessment Act (Yukon).

In all jurisdictions, where a proposed project is subject to environmental assessment, the project may not proceed before the environmental assessment process is complete and a positive determination is granted.

The environmental assessment process typically requires the preparation of an environmental study (as well as potentially a social impact study) and a public information and consultation stage. The thresholds that trigger the process and the requirements for information disclosure and public consultation vary depending on the particular jurisdiction in which the assessment takes place. Generally, the process seeks to identify impacts, addressing them through the implementation of mitigation measures. The provincial and federal governments are also required to consult with aboriginal communities whose rights may be impacted by the proposed project. The time required to complete the process varies depending on the location and can be lengthy in certain jurisdictions. One should anticipate at least two years to complete the environmental assessment process, although the timing can vary depending on the level of assessment required, the potential impacts and the complexity of the proposed project.

On 23 March 2018, the province of Quebec amended the Environment Quality Act and enacted the new regulation respecting the environmental impact review and assessment of certain projects. Note that the revised Environment Quality Act will require a series of modifications to the existing regulations, anticipated for adoption within the next two years. The new legal framework significantly impacts the province’s environmental assessment and review procedure as follows:

  • it affords the government greater flexibility in subjecting projects to the Environmental Assessment Procedure;
  • it provides the public with greater opportunities to intervene in the process prior to the conduct of an environmental impact assessment; and
  • it ensures greater transparency in the authorisation process.

In terms of timeline to obtain the authorisation for a mining project, the new legal framework provides that, as of the date on which an environmental impact assessment statement is filed with the minister, the minister must, within a period not exceeding 13 months, send it to the government for its decision. The period excludes any period during which the minister is waiting for supplementary information that he or she requested from the project proponent, as well as the time to prepare an additional study or research made at the request of the minister.

The federal government has implemented measures to avoid duplication of the environmental assessment process in circumstances where both federal and provincial environmental assessment processes are triggered with respect to the same project. Eight provinces and territories (excluding New Brunswick, Northwest Territories, Nova Scotia, Nunavut and Prince Edward Island) have entered into cooperation agreements with the federal government with a view to avoiding duplications.

In February 2018, the federal government introduced changes to the environmental assessment process. In terms of timelines to obtain the necessary permits, at the federal level, for an impact assessment conducted by the Canadian Environmental Assessment Agency, there would be a 300-day timeline under bill C-69, as opposed to a one-year timeline under CEAA 2012. Similarly, for an assessment conducted by a review panel, there would be a 600-day timeline under bill C-69 compared to a two-year timeline under CEAA 2012. An additional period of 180 days should be added to this timeline because bill C-69 introduced an early planning and engagement phase with the intended outcome of the development of tailored Impact Statement Guidelines and a Permitting Plan for each project.

Closure and remediation process

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

Canada’s provinces and territories impose mine closure and reclamation obligations. Generally, this requires the preparation and filing of a mine closure plan before mine production can proceed. As part of the plan, mine closure costs are estimated and financial guarantee must be provided to the government to cover the closure costs. Increasingly, progressive reclamation obligations are being considered. The method used to calculate the amount and the acceptable forms of financial guarantee (eg, letters of credit, government bonds, cash and mine-reclamation trusts) vary depending on the jurisdiction.

In addition, a federal environmental assessment may be required for the decommissioning and abandonment of projects that meet the ‘designated project’ thresholds under CEAA 2012.

Restrictions on building tailings or waste dams

What are the restrictions for building tailings or waste dams?

While Federal laws and regulations, like the Fisheries Act, may apply in certain respects, tailings and waste dams are predominantly regulated under provincial and territorial legislation. Three provinces in Canada - Alberta, British Columbia and Quebec - have specifically adopted dam safety regulations. Other provinces impose requirements through legislation related to water management.

Taking Quebec as an example, any construction or alteration of a high-capacity dam must be accompanied with a rehabilitation plan to be approved by the minister (section 232 of the Mining Act). The plan must contain a description of the rehabilitation procedure to be put in place for the tailing activities and a description of the infrastructure needed to prevent any environmental damage that might be caused by the dam’s presence. Depending on the type of dam, approval for construction is contingent on either an impounded water management plan or an emergency action. In both cases, an engineer will design a plan describing all the procedures to be followed in particular during situations in which persons or property are at risk. Inundation plans must be kept up to date and forwarded to local municipalities in the event of an emergency. Although the legislation is silent with regards to the professional requirements of a person in charge of the operation and management of a dam, every high-capacity dam must regularly undergo a safety review by an engineer to assess its safety in terms of good practice and regulatory safety standards. Mining facilities may be inspected by the authorities ‘at any reasonable time’ and, depending on their category, dams will be inspected between one and 12 times a year.

In British Columbia, tailings storage facilities are regulated under the:

  • Mines Act;
  • Health, Safety and Reclamation Code for Mines in BC (the Code);
  • Environmental Management Act; and
  • Environmental Assessment Act.

The manager of each mine with a tailings’ facility must designate a qualified person (typically an engineer) to ensure safe management and operation of all tailings dams. Tailings storage and water management facilities and associated dams must be inspected annually; they are also inspected periodically by the provincial government. The Code requires that mines develop and implement a surveillance monitoring programme to safely operate and monitor the condition and performance of tailing storage facilities, dams, structures and associated facilities in order to avoid or detect and address any changes, deterioration or hazardous conditions. While mines are not explicitly required to conduct emergency drills with local communities, the Mines Act and the Code require mine managers to develop and maintain a Mine Emergency Response Plan to ensure that sufficient personnel, equipment and facilities are available for emergencies. Also, trained mine-rescue personnel are required at underground and open pit mines.