When it comes to tailings management, what's left behind can pose serious risks, including legal issues for mining companies. If mining laws are not followed, legal liabilities can pile up fast.
In this article, we will review the basics of handling tailings as required by Canadian laws. For topics not covered here, companies should consult a mining lawyer to learn more about the regulations governing tailings.
What are the laws that regulate tailings management in Canada?
Tailings management in Canada is shaped by both provincial and federal laws. However, each province and territory sets its own rules for how mining companies store and manage tailings, including the regulation of waste dams and water management.
"For example, British Columbia regulates tailings storage and waste management under laws like the Health, Safety and Reclamation Code for Mines, established under the Mines Act," says Sharon G.K. Singh, a Vancouver-based partner at McMillan LLP.
Read next: The BC Mines Act: A legal guide for mining operations in British Columbia
Singh adds that the federal government typically becomes involved in tailings management when projects affect:
- uranium tailings
- navigable or fish-bearing waters
- federal lands
- matters of inter-provincial or international concern
These laws and regulations also impose pre- and post-mining requirements on companies regarding tailings. For instance, security and closure plans may be required, and companies must implement these plans during the reclamation process.
Improper tailings management can lead to catastrophic disasters, such as the breach of the tailings dam of the Mount Polley mine in British Columbia:
To prevent any tailings disaster or to learn how to respond to one, reach out to the best mining lawyers in Canada as ranked by Lexpert.
Related federal laws for tailings management
Federal laws do not directly regulate tailings management but are still relevant. Under the Canadian Environmental Protection Act (CEPA), the Minister of Environment and Climate Change is required to keep a national list of pollutants that are:
- released by mines
- sent to tailings areas
The Metal and Diamond Mining Effluent Regulations (MDMER) of the Fisheries Act also allow mine waste to be placed in approved tailings impoundment areas. This regulation says that:
- water bodies that are frequented by fish should be avoided for waste storage, unless there is no other option
- any water body used for tailings must be listed Schedule 2 of the Regulations, which can only be changed through a formal process
- a compensation plan must be submitted to the Minister of the Environment before a mine can deposit a deleterious substance into a tailings impoundment area
As for the governing authorities for tailings, Singh says that relevant federal bodies may include the:
- Environment and Climate Change Canada
- Impact Assessment Agency of Canada Transport Canada
- Fisheries and Oceans Canada
- Canadian Nuclear Safety Commission
"For example, if triggered, an impact assessment under the Impact Assessment Act will assess the environmental effects of tailings facilities for the relevant mining project," she adds.
Provincial and territorial laws on tailings management
What the federal laws on tailings management lack, the provincial and territorial governments fill the gaps. Here are some provincial laws and regulations that govern tailings management:
- Alberta:
- Lower Athabasca Region: Tailings Management Framework for the Mineable Athabasca Oil Sands
- Directive 085: Fluid Tailings Management for Oil Sands Mining Projects, issued by the Alberta Energy Regulator (AER)
- British Columbia:
- Health, Safety and Reclamation Code for Mines in British Columbia (the BC Code), established under the Mines Act
- Québec:
- Mining Act
- Environment Quality Act
Some of these regulations were enacted in response to actual disasters involving tailings, such as the Mount Polley mine incident. Following this incident, Part 10 of the BC Code was updated in 2016 to include new requirements.
Standards set by organizations
In addition to the provincial and territorial regulations on tailings, Canadian organizations have published some standards or guidelines for mining companies. Here some of these publications:
- A Guide to the Management of Tailings Facilities by The Mining Association of Canada (MAC), with current version 3.2 published in 2021 (the MAC Guide)
- Safety First: Guidelines for Responsible Mine Tailings Management by Earthworks and MiningWatch Canada, published in 2020
- Dam Safety Guidelines by the Canadian Dam Association (CDA), published in 2007 and revised in 2013
Another important standard is the Global Industry Standard on Tailings Management, which was published by the Global Tailings Review in 2020. Learn more about it with this video:
Learn more about these publications and standards by consulting the Lexpert-ranked best law firms for mining law in Canada.
How should tailings be managed according to Canadian laws?
Although the laws on tailings may differ in every province and territory, one thing is for sure: tailings must be strictly handled, and legal standards must all be followed. These ensure that local communities and the environment are protected, preventing any tailings disaster, including dam failure, from happening.
"Tailings management will vary site by site," says Talia Gordner, a Toronto-based partner at McMillan LLP. "As such, the predominant principles that guide tailings management is to implement methods and practices to ensure the protection of human health, the environment, and public safety throughout the mine's life cycle."
Gordner adds that technical considerations, such as engineering design, site conditions, and processing and storage methods, will be some of the key factors in tailings management.
Below are some of the rules established by the Canadian laws and regulations that govern tailings. To know what rule is applicable to your situation, it's highly recommended that you consult a mining lawyer.
Tailings management system
Mining operations are now required to have a tailings management system (TMS). Generally, this system shows how tailings are stored, monitored, and managed over time. It also sets out who is responsible for each part of the process.
For example, the BC Code states that every mine must have a TMS and carry out regular audits. The mine manager must also work with an engineer of record to make sure the tailings storage facility meets all guidelines and standards. If there are any safety issues that cannot be fixed, these must be reported to the Chief Inspector of Mines.
Companies can also refer to the MAC Guide, which outlines the key elements of a tailing storage facility (TSF) and its life cycle. These resources are helpful when planning a TMS and a TSF for a specific mine.
Construction and maintenance of TSF
The mine manager must work closely with an engineer of record to make sure the TSF is designed, built, and maintained according to applicable standards.
Regular audits and inspections are also a part of a TMS. If any safety issues come up that cannot be fixed, these must be reported to the appropriate regulator. In BC, that would be the Chief Inspector of Mines.
A comprehensive TMS should include clear plans for emergencies and ongoing staff training. This helps ensure safety and compliance with Canadian mining laws.
Security for tailings disasters
Most provinces also require mining companies to file a closure plan and provide financial security before starting production. This is to make sure that the site will be cleaned up and restored after mining ends, such as during the reclamation stage. In some provinces, a closure plan is needed even before exploration begins and not just during the application process.
The funds set aside are intended to pay for rehabilitation work, even if the company cannot perform it. This security covers breaches involving tailings, as well as other disasters that may happen during and after mining operations.
Obligation to rehabilitate
Mining companies in Canada are responsible for cleaning up and restoring sites if a tailings disaster happens. In such cases, the company must follow its closure plan to repair the damage. This may include cleaning up spilled tailings, restoring the water quality, and making the land safe for people and wildlife.
Under Québec's Mining Act, mining operators have the responsibility to rehabilitate and restore the land for the damage caused to the environment by its tailings. Also, a mining operator's rehabilitation and restoration plan must:
- be approved by the government even before mining activities begin
- have a containment work if the land is affected by tailings
How can lawyers help clients with laws on tailings?
Radha D. Curpen, another Vancouver-based partner at McMillan LLP, shares ways on how lawyers can help clients when it comes to laws on tailings management. She says that lawyers, working alongside multidisciplinary teams, can assist companies in the following areas:
- understanding statutory framework
- managing regulatory risks
- engaging with and understanding the expectations of communities and regulators
- preparing for and responding to inspections and investigations
- commercial agreements touching on tailings management
"Lessons learned from other mining projects, and experiences with implementation of industry initiatives can be leveraged by lawyers to provide examples of best practices in the governance and procedural steps in developing a tailings management framework," says Curpen. She adds that Towards Sustainable Mining (TSM) of the Mining Association of Canada is an example.
Tailings management: Staying ahead of legal pitfalls
An effective TMS is not only about legal compliance, but also about protecting a company's future. With strong systems and regular audits, mining firms can avoid costly mistakes and keep operations safe for workers and the environment.
When in doubt, it pays to get legal advice. A mining lawyer in the relevant province and territory can help companies understand changing laws and ensure all mining processes meet Canadian standards.
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