Mining Law

By Nina Robertson, Charlie O’Connor, Nicolas Kaal

Environment is defined by the Quebec government’s Environment Quality Act as ‘the water, atmosphere and soil or a combination of any of them or, generally, the ambient milieu with which living species have dynamic relations’ (Chapter I: Provisions of General Application – Division I: Definitions). The word emerged into common use in the 1800s at the end of the Industrial Revolution and took on ecological denotations in the 1950s. In geologist Margret Fitsimmons’ article, The Matter of Nature, she asks us to:

‘Consider the possibility that nature as we know it was invented in the differentiation of city and countryside, in the differentiation of mental and manual labor, and in the abstraction of contemporary culture and consciousness from the necessary productive societal work of material life’

Nature was created by the separation of place into culture and resource. Professor Audra Simpson of Columbia University, raises an important point in this narrative; that the nature/culture division is an explicitly Western imaginary.   In her paper, “We Are Not Red Indians” (We Might All Be Red Indians), she contrasts Haudenosaunee origin myths, which do not delineate so harshly between environment and culture with foundational European colonial notions of the nature/culture divide. Simpson argues that these fundamental differences in narrative inform contemporary contentions of land between indigenous and colonial interests. The nature/culture divide underlies and contextualizes Western, colonial and capitalist relationships with land and allows for the essentializationof place as resource. This narrative lineage has explicit and substantial relevance in considerations of place and contextually backgrounds contemporary conversations about environment.

Resource extraction industries are physically devastating, impacting the environment and forming the backbone of the Canadian economy. According to Dean (2013), 75% of the world’s largest mining companies are based in Canada. The Mining Association of Canada (MAC) reported the value of mineral production (extraction and processing) at close to $43.6 billion in 2013. Over half of the world’s public mining companies are listed on Canadian stock exchanges, which handled 48% of global mining equity transactions in 2013. This accounted for almost half of global mining equity capital in the same year. The industry employs 380,000 people across 3,400 companies. The province of Quebec accounts for almost 20% of the Canadian mining industry and that number is growing (Marshall, 2014). Nationally, Canada produces over 60 minerals which are exported in raw and processed forms and used to make everything from cell phones (silicon, boron, lead, phosphorus, indium, gold, copper, aluminum, steel, silver, zinc, cadmium, lithium, nickel and cobalt et al.), to industrial contracting supplies (gypsum, clay, limestone, sand and gravel et al.) and household goods (stainless steel, graphite, aluminum and titanium et al.) (Mining Industry Human Resources Council).

At what environmental cost?

Janideb writes in the article Consequences of over Exploitation of Mineral Resources that ‘Mining is a dirty industry, it has created some of the largest environmental disaster zones in the world.’  Not only that, it comes at great cost to human health (Webb, 2004). The mining industry impacts the environment from two main sectors; ore extraction and ore processing. Ore extraction may be further separated into two categories. The first; surface mining which removes strata (vegetation, soil, rock) to expose target ore and includes quarrying, open pit, strip and landfill mining as well as mountaintop removal. The second; the outdated and less impactful underground mining (what you might associate with old gold rush photographs) in which shafts or tunnels are dug to reach ore deposits.

Untitled-4
A Quebec asbestos mine – Ruth Roberts via Flickr

The photograph of this open pit mine illustrates the extremity of physical impact. A major environmental concern of the extraction process is the ecological loss inherent in such invasive practices – forfeiting animal and human habitats through deforestation and excavation. Mining is often the epicenter of massive repercussive costs to ecologies including loss of biodiversity. Both surface and underground mining produces immense amounts of waste from excavation and processing. This waste is frequently dumped close to mines creating more ecological disruption. Nearly 100 tons of waste are produced per 1 ton of copper while a ton of gold produces 200,000 tons of tailings (Desjardins, 2015; Janideb, 2015). Some of this waste is highly toxic and poses a great risk of contamination to water and soil.

Untitled-5
‘Restored’ Manitou Mine Site, Quebec – Norascon

Poisonous chemicals like arsenic, sulfuric acid, and mercury are leached into the environment. These chemicals can cause illness and death in microorganisms, plants, animals and humans. They work their way through ecosystems. For example in the Cree community of Oujé Bougoumou (Quebec), tailings where negligently leached into waterways and impacted the health of local Cree communities by mercury poisoning. Joseph Shecapio-Blacksmith, the local environment administrator, was interviewed for Heavy Metal: A Mining Disaster in Northern Quebec before his death by mercury poisoning.

 

“Now people are finding fish that are deformed. Other animals are dying too. It’s all because of the poisons of the mine.”

Quebec Mining Law Fact Sheet

Before the law

Ever since the arrival of Europeans in the Americas, their colonies have served as sources of raw materials for the British and the French empires. In 1604, Master Simon accompanying Champlain had already reported discovering silver and iron in St. Mary’s Bay Nova Scotia (MacKinnon, 1945). By 1654, King Louis XIV granted the first concession to mine in Canadian territory (MacKinnon, 1945). From this point on, the gates are open for mining which slowly picks up after the 18th and 19th century. By 1842, the first geological survey of Canada is conducted, which encouraged mineral exploration within Canada. In 1863, there was the start of a gold rush in Quebec which brought in thousands of companies and miners into the province of Quebec. This forced the government to act quickly in order to keep control over the territory (Lapointe, 2009).

1880 – Quebec adopts its first Loi sur les mines

In 1880, Quebec introduces the first mining legislation, the Quebec General Mining Act, which gave the government ownership to all of the mining territory in Quebec. The act would allow the government to own or sublet the mining territories in exchange for property tax (Energie et Ressources Naturelles Quebec, Key dates). This legislation promotes the free mining principles that appeared throughout medieval Europe consisting of 3 main guidelines:

(i) a right of free access to lands in which the minerals are in public ownership,
(ii) a right to take possession of them and acquire title by one’s own act of staking a claim, and
(iii) a right to proceed to develop and mine the minerals discovered (Barton, 1993).

This legislation also created several conflicts with the First Nations in Quebec, which still have not signed treaties or land claims, especially contested issues over territorial management. This created a debate between the government and the Indigenous population over the right to mine in their territory. Another problem set by the legislation is that mining is a freedom and overrides many other land uses such as space with a historical, cultural or ecological significance. Therefore, when a company makes a claim for mining in a certain territory, it is difficult for the government to refuse it.

Thetford-mine-1909

canton-Coleraine-1880

 

 

 

 

 

 

 

The 20th century: law changes in the 1960s, 1991 and 1998

For a concise summary of changes to the law through the twentieth century, here is an excerpt of the 2009 report published by Ecojustice:

La première Loi générale des mines date de 1880 puis fut amendée à quelques reprises au cours des décennies suivantes. C’est seulement vers les années 60 que furent apportées des modifications plus importantes au régime minier du Québec, en particulier en ce qui a trait aux droits d’utilisation et de propriétés des substances minérales de surface (sable, gravier, etc.) 12 . Mise en vigueur en 1988, l’actuelle Loi sur les mines a subi quelques réformes, dont les principales sont celle de 1991 et celle de 1998. La réforme de 1991 (mise en vigueur en 1995) prévoit que, lors de la réalisation de travaux d’exploitation minière, un plan de restauration et une garantie financière couvrant 70% du coût prévu des travaux de restauration sur les aires d’accumulation de résidus miniers soient déposés par les compagnies minières – une mesure qui s’avère d’application et d’efficacité limitées, tel que révélé dans le rapport du Vérificateur général du Québec d’avril 2009. Les modifications de 1998 (mises en vigueur en 2000) ont, notamment, introduit le concept d’acquisition du claim par sa désignation sur carte, via Internet, facilitant dès lors l’accession et l’appropriation des ressources minérales du territoire par les tiers.

A good example in Quebec is the Paakumshumwauu Project, a biodiversity reserve created by the Cree nation of Wemindji in James Bay, Quebec. The reserve is not protected because it lies on land with existing mining titles. While the mining law has not yet been amended, conservation measures such as the federal National Parks Act have strengthened environmental protection over territories without existing mining titles (Hart, 2012). Apart from these conservation measures, mining activities are easily undertaken in Quebec.

The Canadian Constitution Act of 1982, which recognizes and affirms existing aboriginal and treaty rights, is used as one of the main tools for First Nations to protect their land rights and territories from mining. The Constitution has not always been respected by the federal or provincial government, but it has given Indigenous people a better opportunity to use it in court. Since the 1990s, there has been a large increase in the amount of environmental impact assessments and other such programs evaluating mining and exploration projects. The observed changes have slowly ameliorated over time, but there are still many issues with the Mining Act that are currently being assessed by the provincial government. Bill 70 which will make a total of 127 amendments to the current mining policy, has added a section specifically dealing with Native communities (Ouelette, 2013). It is about time that the antiquated Mining Act is replaced, but it is still difficult to say whether the changes proposed in the new bill will necessarily create a significant difference. Quebec, like many other provinces in Canada, is in constant competition to attract mining companies and investment at important environmental and social costs.

December 2013: les pequistes pass the most recent reforms

ministre-ressources-naturelles-martine-ouellet-dec2013
La Ministre des Ressoirces Naturelles, Martine Ouelet, a été chaudement applaudie par ses collèuges péquistes lors du dépôt de son projet de loi sur les mines.  -Ivanoh Demers, La Presse

When the latest reforms were approved in December 2013, le Devoir reported that “Les amendements déposés par le gouvernement [PQist], rédigés avec l’appui de la CAQ, ont tous été adoptés, alors que tous ceux présentés par le Parti libéral et Québec Solidaire ont été rejetés, sans exception. […] [L]es amendements modifient certaines questions sur les droits autochtones, la recherche d’uranium et les consultations publiques faites par l’industrie. (Nadeau, 2012).”

What was changed?

Mondaq reports that “[c]hanges pertain mainly to rights and authority for municipalities, increased environmental oversight, and additional public interest considerations, economic benefit measures and consultation requirements” (McCarthy, 2014). More specifically, municipalities now have the right to designate land in their jurisdiction to be incompatible with mining. Another addition forces mining companies to tranfer a financial security to the government. This security is supposed to be sufficient for all expenses related to the complete restoration of mining sites. Though this sounds promising, Osler reports that the Act also contains provisions for waving this requirement if it threatens the viability of the mining project (Amyot et al, 2013).

It is worth focusing on the changes that impact First Peoples. The points reported by Mondaq are that the provincial government has a “general obligation to consult with Aboriginals,” and that the 2013 Mining Act “prohibits the expropriation of Aboriginal burial grounds” (McCarthy, 2014). While these are quite agreeable changes, they are unlikely to influence the mining industry very much. Where Indigenous Peoples have real control over resource extraction in their territories, it has resulted from modern treaties and agreements with provincial and federal governments.

La Presse concludes, that the quality of the law depends on its implementation (Dubuc, 2012). As Quebec competes with resource extraction sites all over the world, much will depend on how the most recent changes to the Mining Law will be applied on the ground.

Quebec’s current approach to the mining industry

Quebec’s Minister of Mines, Luc Blanchette, makes a clear statement about how mining is a global industry:

Mine exploration is a global activity. Competition is everywhere, and Québec is just one of many mining areas. […] The mining community has no option but to look at what’s happening elsewhere in the world, and how things are changing. All mine exploration and operational activities depend on this (MERN, 2014).

In evaluating this province’s laws and policies on mining, we need to keep in mind the global context.  Blanchette states that, in order to compete, we need to “clarify our territorial access rules and simplify all our bureaucracy and regulations. We can make things easier without changing the law – and we won’t change the law because we want a stable mining industry (MERN, 2014).”

Mining Law in Quebec has been harshly criticized by many actors.  You can download files from the following links:
MemoireABAT
Memoire de Nature Quebec, 2009

You can download integral law texts the following links:
Bill-70-2013
Bill-43-2013 (Proposed but not adopted)
1987-Loi-sur-les-mines 

 

References

Amyot, S., Paradis, F., Gagnon, H.P., (2013, December 16), Quebec finally adopts its reform of the Mining Act, Osler.

Chapter I: Provisions of General Application; Division I: Definitions.” Quebec Environment Quality Act. Éditeur Officiel Du Québec. Web. 10 Oct. 2015.

Interview with Minister Luc Blanchette.” MERN Quebec Mines. Web. 6 Oct. 2015.

Place Names.” The Canadian Encyclopedia. Web. 6 Oct. 2015.

Reclamation of the Manitou Mine Site.” Norascon. Norascon. Web. 10 Oct. 2015.

A Tent on Mars. Dir. Martin Bureau and Luc Renaud. Film.

Barton, B.J. 1993. Canadian Law of Mining. Calgary: Canadian Institute of Resources Law.

Dean, Dave. “75% of the World’s Mining Companies Are Based in Canada.” VICE. VICE | Canada, 2013.

Desjardins, Jeff. “What Is the Cost of Mining Gold? – Visual Capitalist.” Visual Capitalist. 21 May 2013.

Dubuc, A. (2013, December 11). Une loi sur les mines, enfin, La Presse.

Energie et Ressources Naturelles du Quebec. “Keydates”. Quebec Geographique, 2005.

Fitzsimmons, Margate. (1989) ‘The Matter of Nature’, Antipode, 21: 106-120

Hart, Ramsy. “Mining Watch Canada and Dawn Hoogeveen”. Mining Watch Canada, 2012.

Webb, E (Producer) and Diamond, N. (Director). (2005). Heavy Metal: A Mining Disaster in Northern Quebec. Dir. Neil Diamond. Canada: Rezolution Pictures.

Janideb. “Consequences of over Exploitation of Mineral Resources.” Preserve Articles for Eternity.

Lapointe, Ugo. “Origins of Mining Regimes in Canada & The Legacy of the Free Mining System”. The Centre for Research on Latin America and the Caribbean (CERLAC) And the Extractive Industries

McCarthy Tétrault’s Mining Practice Group, (2014, March 11), New Amendments to Quebec’s Mining Act, Mondaq

MacKinnon, James A. “Chronological Record of Canadian Mining Events from 1604 to 1943 and Historical Tables of the Mineral Production of Canada”. Department of Trade and Commerce Dominion Bureau of Statistics, 1942.

Marshall, Brendan. Facts & Figures of the Canadian Mining Industry 2014. Canadian Association of Mining, 2014. web.

Mining Industry Human Resources Council. “Products of Mining in Canada: From Batteries to Vehicles.” Products of Mining in Canada. Explore for More. Web. 6 Oct. 2015.

Nadeau, J. (2013, December 10). Loi sur les mines – Une tumultueuse adoption par bâillon,
Le Devoir.

Richer La Flèche, Erik. “The Section of Quebec’s Proposed Mining Act That Makes Mine Developers Wary.Future Imperfect. 8 July 2013. Web. 10 Oct. 2015.

Ripley, Earle A., Robert E. Redmann, and Adele A. Crowder. Environmental Effects of Mining. 2nd ed. Delray Beach, fla.: st. Lucie, 1996. Print

Simpson, Audra. ““We Are Not Red Indians” (We Might All Be Red Indians): The Gender of Anticolonial Sovereignty Across the Borders of Time, Place and Sentiment.” Resisting Gendered and State Violence: Indigenous Women’s Activism.

The Hole Story. National Film Board of Canada, 2011. Film.

The People of the Kattawapiskak River. Dir. Alanis Obomsawin. National Film Board of Canada, 2012.