Canada: Commissioner Of The Environment Audits Federal Efforts To Protect Fish From Mining Effluent

On April 2, 2019, the Commissioner of the Environment and Sustainable Development tabled Report 2—Protecting Fish From Mining Effluent (the "Report"). The Report summarized the results of an audit of federal regulatory programs designed to protect fish and fish habitats from mining effluent. The Commissioner—who is appointed by the Auditor General and provides independent analysis and recommendations on environmental issues—determined that, overall, the two federal departments tasked with protecting fish and fish habitats took steps to accomplish this goal. However, the Report makes several recommendations to Environment and Climate Change Canada ("ECCC") and Fisheries and Oceans Canada ("DFO") to improve monitoring, inspections, reporting, and risk analysis.

The audit covers the period from January 2009 to November 2018, and follows a previous report issued in 2009, which had determined that the two departments could not demonstrate that they adequately protected fish habitats.

Mining operations use chemical processes to extract materials, which creates mine waste. Liquid waste, or effluent, may contain substances that are harmful to fish, such as cyanide, zinc, and selenium.

Federally, the Fisheries Act contains provisions to protect fisheries and prevent pollution from any source, including mining. Non-metal mines, such as potash, coal, and oil sands, are not permitted to release any effluent containing harmful substances into a body of water where fish are present. Metal and diamond mines, however, are subject to separate regulations, the Metal and Diamond Mining Effluent Regulations, which under some conditions, allow metal and diamond mines to emit effluent containing harmful substances.

ECCC administers and enforces the pollution prevention provisions of the Fisheries Act and its regulations, including the Metal and Diamond Mining Effluent Regulations. Mining companies must submit plans to compensate for the loss of fish habitat that results from mining, and both ECCC and DFO must approve the plans before granting authorizations to deposit mine waste or begin construction. DFO monitors implementation of the plans.

The audit reviewed several aspects of this regulatory system, and the Commissioner made recommendations based on the findings.

Fish habitat compensation plans: Both departments required companies to submit fish habitat compensation plans before granting them authorizations to deposit mine waste or begin construction. However, more than half of the construction-related compensation plans approved by DFO missed some detailed measures to address the loss of fish and fish habitats. In addition, DFO monitored 90% of the compensation plans for new construction work, but only 60% of the compensation plans for those that used existing bodies of water. The Commissioner recommended that DFO ensure that all fish habitat compensation plans include detailed measures to address the loss of fish and fish habitats, and monitor implementation of the plans.

Monitoring and reporting on environmental effects of mining effluent: ECCC met its requirements to monitor metal mining effluent, by requiring mining companies to submit data on environmental effects, verifying its completeness and accuracy, using it to update regulations, and publically reporting on the data. However, the Commissioner recommended that ECCC publish the data with clear identification of individual mine sites, and consider requiring companies to address the environmental effects on fish and their habitat.

Inspections of metal mines: ECCC tracked inspections by company name rather than mine site, and conducted inspections in Ontario with much less frequency than any other region—an average of once every 3.6 years, compared to the national average of 1.5 years. The Report also found that 35% of mines did not provide complete information on effluents. While enforcement officers reviewed figures that exceeded set limits for particular substances, they did not review figures below the set limits or systematically review laboratory analysis results. The Report recommended changes to address each of these concerns.

Inspection of non-metal mines: ECCC inspected non-metal mines much less frequently than metal mines: averaging once every 2.4 years compared to every 1.5 years. And while the department identified a need for a risk-based strategy for inspection of non-metal mines, the strategy was never developed. The Commissioner recommended that ECCC conduct a full risk-based analysis of non-metal mines to determine inspection priorities, conduct inspections based on this analysis, and track enforcement activities by type of mine.

Enforcement: From April 2014 to June 2018, mining companies were required to pay $16.6 million in penalties to ECCC under the Fisheries Act. Individual penalties ranged from $10,000 to $7.5 million, with a recent trend toward larger penalties. However, the department usually tracked this data by company. The Report recommended that ECCC track the data by mine site, in order to better understand compliance at individual sites. The Report also recommended the introduction of additional enforcement measures, such as permitting enforcement officers to issues fines, tickets, or administrative monetary penalties. These additional enforcement measures would require legislative amendments.

The federal government has accepted the recommendations set out in the Report. ECCC has indicated that it intends to develop options to address the issues flagged in the Report, with target completion dates in 2020 and 2021. In addition, DFO has acknowledged the shortcomings identified by the Commissioner and has targeted April 2020 for implementation of a revitalized monitoring program for tailings impoundment areas.

To view the original article click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions