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“Mine Fields”

ON Nature, Fall 2008

A feature-length investigation of Ontario’s mining legislation and its environmental implications.


MINE FIELDS

Ontario’s antiquated legislation allows the mining industry to stake claims almost anywhere and operate without full environmental assessments. Responding to the demands of First Nations and conservation groups like Ontario Nature, Premier Dalton McGuinty promised (again) to overhaul the Mining Act. Will this promise be kept?

By Conor Mihell

ON A SUNNY, LATE APRIL DAY, Catherine Bayne hopscotches her way along a steep and rocky portion of the northeastern shore of Lake Superior. I follow behind, balancing unsteadily on the wave-washed rocks; at the very least, a slip would mean an icy swim. Bayne seems unaware of the danger. Her eyes sparkle in the sunlight as she admires the rugged beauty of the coastline.

“It doesn’t take someone with a geology degree to be able to tell that this place is special,” says Bayne, who owns 310 hectares of land about 100 kilometres northwest of Sault Ste. Marie. “Just look at all the colours and textures in the shoreline. There are sedimentary, igneous, and metamorphic rocks side by side.”

Bayne and her partner, George Browne, live off the grid and telephone-free on a rugged, hilly piece of northeastern Ontario they call Bay Niche Conservancy. Running water comes from a garden hose that diverts some of the flow of a stream and drinking water is scooped from a spring. Their homestead is decidedly rustic and isolated–the nearest neighbour lives 20 kilometres away.

Bay Niche wasn’t always so peaceful. Up until Bayne bought the property in 1986, prospectors had clearcut parts of the land to drill and dig for bedrock samples. The area has been the site of ongoing prospecting and commercial mining activity for more than 160 years. You can still see parts of an 1840 copper mine hidden along the coastline adjacent to Bayne’s property, and the 60-year-old headframe of Canada’s first uranium mine stands precariously 10 kilometres to the north. Ironically, the saving grace for Bay Niche is that since the land is patented, or designated, for mining, Bayne can own both its surface and mineral rights by paying $1,200 annually in mining taxes. However, if she misses a payment, she forfeits those rights back to the Crown. Difficult and stressful as this is on her meager income as a photographer, it’s worth every penny to keep her property prospector-free.

Unlike Bayne, the majority of rural Ontario landowners are completely unaware that their property is fair game to anybody hoping to strike the motherlode. The Ontario Mining Act, passed in 1873 and falling under the jurisdiction of the Ministry of Northern Development and Mines (MNDM) since the late 1980s, enshrines the right of “free entry”:  two small but earth-shattering words that give prospectors access to most of Ontario’s land mass and the power to stake claims and undertake exploration on private and Crown land, without consulting property owners or the public, without regard for First Nation treaty rights, and without weighing the benefits of mining versus other land uses, such as conservation, or considering the impact on the local ecology.

With such carte blanche legislation, it’s no wonder that Ontario is a mining stronghold. The province produced $9.4 billion worth of minerals in 2006, more than any other jurisdiction in Canada. According to the Ontario Prospectors Association, there are currently 41 mines in operation and more than 800 ongoing exploration projects. As of April 30, 2008, 335,000-plus mining claim units were filed with the provincial mining recorder, the MNDM department responsible for handing out land tenure. With each claim unit measuring 16 hectares, the amount of land staked for mining interests totals nearly 54,000 square kilometers – about six percent of the province’s land base.

“The province assumes that mining is the best use of land,” says Marilyn Crawford, a member of the steering committee Bedford Mining Alert, an advocacy group based near Kingston. “This old-fashioned, colonial mindset dates back to when the province was trying to populate the north and mining was done with picks and shovels. Today, it amounts to giving our land away.”

Bolstered by skyrocketing metal prices and high demand for diamonds, the mining section is riding a wave of prosperity. Prospectors with an eye for gold, silver, and copper have staked claims on the Crown land surrounding Catherine Bayne’s property and throughout northern Ontario, and high uranium prices have brought the abandoned mines of Elliot Lake to the brink of revival. The boom has expanded to the James Bay Lowlands area, where 2,316 claims were hurriedly staked in the nine months following last fall’s provincial election, when the Liberal government vowed a modernization of the Mining Act; according to MNDM statistics, this amounts to 35 percent of all claims in the Far North. And, as with prospecting and mineral exploration, the development of large-scale mines, like DeBeers Canada’s Victor mine in James Bay, continues to pass below the radar of comprehensive environmental assessments.

This flagrant disregard for overall environmental impacts worries many. First Nations across the province are calling for a mining moratorium until Premier Dalton McGuinty upholds his promise to review provincial legislation. The position is backed by Ontario Nature and more than 30 other environmental and human rights organizations, as well as Gord Miller, the Environmental Commissioner of Ontario, who encouraged strategic land-use planning in the pristine Far North region and modern reforms to the province’s mining regulations in his 2007 annual report, released last December.

Certainly, it’s disturbing to hear the MNDM’s rationale for having so little regard for land rights or repercussions to habitat. “The purpose of the Mining Act is first to encourage prospecting and development and second to protect the environment through rehabilitation,” says Tony Scarr, a senior lands technician at the MNDM. “The role of the ministry is to issue land tenure, not to carry out exploration or permit mining activities. We look after the conveyance of land from one user to the next.” In other words, government is effectively distanced from what mining companies do, an archaic mandate reflecting the fact that, at 135 years old, the Mining Act is the one of the longest-standing pieces of legislature.

“Through this ancient act, the Ontario government is supporting an industry that imposes massive impacts on the environment,” says Jennifer Baker, Ontario Nature’s boreal outreach coordinator. “We need new policy that offers a comprehensive assessment of all environmental and social values.”

MARILYN CRAWFORD GOT A RUDE AWAKENING TO THE REALITIES of the existing policy in 2001, when a prospector staked a claim on her cottage property near Kingston. She filed a dispute to challenge the prospector’s right to explore on her land and has been active in the lobby to reform mining legislature ever since.  “It was unfathomable to me that someone could just walk onto private property and stake a claim, much less come in with heavy equipment to explore for minerals with only 24 hours’ notice to the property owner,” Crawford says, admitting she “got lucky” when the claim on her property was abandoned.

Anyone can stake a mining claim virtually anywhere in Ontario so long as they are at least 18 years of age and purchase a $25.50 prospector’s license, which must be renewed every five years. While Tony Scarr likens the MNDM’s role in the mining process to that of a real estate agent, in practice, the government acts more like a clearinghouse.

Once a claim is staked and reported to the MNDM, the prospector has exclusive right to explore it for minerals. The holder must put $400 of “assessment” work into each claim unit per year and, in the case of Crown lands, the MNDM has no right to refuse leasing the surface rights should the prospector decide to further explore the mineral potential of a claim. On patented mining land, such as Bayne’s property on Lake Superior, surface and mining rights are bundled together in perpetuity, so long as the landowner pays an annual mining tax to the government. This historical system of land tenure and tax has been replaced by 21-year mining leases, in which the government levies an annual fee of $3 per hectare.

Despite the obvious ecological concerns, mineral exploration isn’t subject to environmental regulations. Once the land is under lease, companies are not required to submit an exploration plan and are not subject to government inspection, says Crawford. In fact, the rehabilitation of an exploration site isn’t mandatory unless more than 1,000 tonnes of subsurface rock is excavated or 10,000 square metres of vegetation and topsoil is removed from each claim unit. “Companies are not required to report all the exploration work they do,” she says. “We have no idea of the number of exploration sites that haven’t been restored because nobody is watching.”

According to MNDM statistics, about one in every 10 mining claims will advance to the exploration stage. But only about one in 1,000 exploration projects will develop into an operating mine. Joan Kuyek, the past national coordinator of MiningWatch Canada, a national mining-policy watchdog organization, explains that the relatively large number of exploration projects can be directly tied to the huge federal and provincial tax incentives for investing in junior mining companies. Investors receive a 100-percent tax deduction for their support of mineral exploration, says Kuyek. What’s more, investing in juniors is further encouraged by an additional 15-percent federal and five-percent provincial tax credits.  “The tax system treats exploration as a separate industry from mining,” she says. This makes exploring for new sources of raw materials far more economically appealing than recycling or conserving existing supplies. “The end result is enormously costly to taxpayers and the environment. It is completely unsustainable.”

THE IMPACT OF THE MINING INDUSTRY is obvious in my hometown of Wawa, located 230 kilometres north of Sault Ste. Marie. A brief gold rush first brought miners here in the late 1800s; shortly afterwards, Algoma Ore Division’s (AOD) iron mines formed the backbone of the community. The last iron ore was blasted from the earth in 1998, but AOD’s legacy remains in the form of 40-kilometre-long, 20,000-hectare treeless zone – the result of atmospheric sulphur dioxide fallout from the processing of ore into iron. A Ministry of the Environment (MOE) study showed that soil levels of arsenic, another byproduct of processing, were up to 50 times the MOE guidelines in the area; and the study estimated the risk of cancer to Wawa residents as a result of exposure to arsenic was 100 times the level used to set provincial standards.  (Further studies concluded that because Wawa’s soil arsenic was “very insoluble and therefore biologically unavailable,” the risk to human health was “very low.”)

Similar trends have been observed in communities across Ontario, says MiningWatch’s Kuyek, nickel and lead-contaminated soils being reported in Sudbury and Port Colborne. In the northeastern Ontario town of Cobalt, the medical officer of health cautioned against swimming and fishing in area lakes in 2005 and 2007 because of arsenic concentrations of more than seven times the provincial water quality objectives.

An even bigger concern is the estimated 650 million tonnes of waste materials generated by the Canadian mining industry each year. Kuyek says that most ore bodies contain less than one percent valuable metal. For instance, one gram of gold is the product of about one tonne of gold-bearing material – besides the one to three additional tonnes of “waste rock” that must be removed to access the ore and is disposed of in mountainous heaps. Chemical- and heavy metal-laced sludge ponds of fine-grained mine waste known as “tailings” comprise about 25 percent of mineral extraction byproducts. Tailings ponds may contain certain types of metals that can leach deadly acidic toxins into the water table and surrounding waterways and wetlands. Since about 20 percent of mining waste in Canada is acidic and leaching may not occur for decades after mine closure, Kuyek says tailings ponds require costly monitoring and treatment long after a mine is abandoned.

What’s more, with Canadian mines using upwards of two billion cubic metres of water per year, it’s no surprise that MNDM case studies demonstrate that 70 percent of operations contaminate surface water and 65 percent pollute groundwater.  DeBeers’ Victor mine in the James Bay Lowlands received permission to draw 100,000 cubic metres of water from the Attawapiskat River every day. Mining in the muskeg area will also require removing the same amount of groundwater from below the water table in the mine pit. Besides creating a 260,000-hectare sinkhole over the mine’s 12-year life span, the draining process could release methyl mercury, a dangerous neurotoxin that bioaccumulates in the aquatic food chain as revealed in a 2007 study by University of Ottawa ecotoxicologist Dr. David Lean. Ontario Nature’s Jennifer Baker explains that “the problems associated with flooding vast areas of peatlands for hydroelectric projects also applies to draining [them] for mines. Both processes free up mercury that’s been harmlessly stored in the soil and converts it to a toxin that contaminates fish and threatens human health.”

Other environmental impacts include tailings spills, such as the 1990 accident near the northeastern Ontario town of Matachewan that dumped 300,000 tonnes of gold mining byproduct, including high concentrations of toxic lead into the Montreal River. At northwestern Ontario’s Red Lake gold mine, Kuyek says, 20,000 tonnes of underground arsenic trioxide is slowly seeping into the surrounding groundwater.

I often backcountry ski in Wawa’s treeless zone, carving telemark turns on the slopes and kicking and gliding across lakes of the windswept and arctic-like landscape. Since AOD operations ended, restoration work has not extended beyond removing equipment, dismantling the processing facility, and re-routing runoff from the mounds of waste rock surrounding the processing site. According to Brennain Lloyd, the coordinator of Northwatch, a coalition of environmental and citizen organizations in northern Ontario, AOD is but one of a legion of shoddily rehabilitated former mining sites that remain scattered across the province. Timmins’ Kam Kotia mine, which closed in 1972, has been the most costly to taxpayers. Once complete in 2009, the rehabilitation of Kam Kotia’s acidic tailings will cost the province an estimated $60 million, says Lloyd.

Lloyd maintains that the solution to decreasing the costs of abandoned mines is to comprehensively assess the environmental, social, and economic impacts of mining before projects are allowed to begin. “The way it works right now is that there are very few decision points where it’s possible to take a comprehensive look at the project,” she says. “If all costs of mining were considered, including environmental and health impacts, and companies were required to prove they could pay the bill of remediation up front, I’m sure we’d see much less development, and fewer abandoned mines.”

PERHAPS THE GREATEST SHORTCOMING OF ONTARIO’S MINING POLICY is that it has no provisions for measuring the cumulative environmental impacts of development. Because of the split jurisdiction between Ottawa and the provinces, mines are subject only to a piecemeal review, where federal agencies, such as Fisheries and Oceans Canada, and provincial legislation, like the Ontario Water Resources Act, assess and authorize individual components of a proposal. As a result, explains Anastasia Lintner, a staff lawyer and economist at EcoJustice Canada (formerly Sierra Legal Defence), a national non-profit environmental law organization, “no one does an overall examination of a project.”

The situation is further confounded in Ontario by the fact mining has been historically protected from environmental assessment legislation. Lintner says that before the Ontario Environmental Assessment Act came into force in 1990, the government “wanted to allow ongoing [mining] projects to be able to continue while they went through the process of determining the criteria of class environmental assessments.” An exemption for mining development was first put in place in 1981 and has been extended ever since, with the current three-year term set to expire in June 2009.

Lintner believes the problem of split jurisdiction and piecemeal assessments could be overcome with joint panel reviews, where federal and provincial agencies and the mining proponent agree to a review of potential environmental impacts by an independent panel of experts, including, she says, “an overall assessment of whether or not it’s worth it.” In 2007, for example, a joint review panel in British Columbia rejected a proposal for a copper and gold mine, the first mine proposal turned down by an environmental assessment in Canadian history.

THIS APRIL, DALTON MCGUINTY RENEWED his promise to review the Mining Act and told reporters that Ontario’s mining policy doesn’t mesh “with our values and expectations at the beginning of the 21st century.” According to Cindy Blancher-Smith, the MNDM’s director of mineral development and lands, the government will begin its overhaul “once cabinet determines the scope of the review.”

That’s welcome news to environmentalists like Catherine Bayne, whose 20-plus years of protecting her Lake Superior property from prospectors has made her skeptical that reform would ever come. Marilyn Crawford is hopeful, too, but not relenting in her activism. While she wants the MNDM to commit to wholesale changes of the Mining Act, including the abolishment of free entry, incorporating comprehensive environmental assessments at all stages of the mining process, and implementing effective rehabilitation, she continues to plug away at the smaller details of mining policy. Under the current system, any proposed changes to mining legislation must first go through the Minister’s Mining Act Advisory Council, 70 percent of which is comprised of mining industry representatives who are selected to the council by invitation only from its members. “It’s a big problem for activists,” she admits. “Every letter I write to the minister gets filtered by what’s essentially a pro-mining body.”

Still, demands for changes to the Mining Act are getting stronger. In an April letter to McGuinty, 20 high-profile Canadians, including author Margaret Atwood and human rights activist Stephen Lewis, urged the premier to expedite changes to mining policy. In another letter to the premier in May, U.S. environmentalist Robert F. Kennedy Jr. scolded the province’s hesitant response to the plight of aboriginal leaders from the Kitchenuhmaykoosib Inninuwug reserve, in northwestern Ontario, and Ardoch Algonquin First Nation, near Kingston, who were jailed in March for opposing mineral exploration in their traditional lands.

The public will no longer stand for the assumption that mining is the best use of the province’s land base, says Ontario Nature’s Jennifer Baker. “Right now, mining companies don’t even bother to say that they’re environmentally friendly. They’re all powerful and they’ve always had the government’s support. But attitudes are changing, ” she insists. “We want to make sure that a review of the Mining Act is open, transparent, and has solid public consultation along the way.” For Baker, the glitter of diamonds and gold can’t compare with the simple pleasure that will come when the ground beneath our feet is truly ours to hallow.

Conor Mihell is a freelance environment and adventure travel writer based in Wawa, Ont.