Mine reclamation in Canada: Regulatory challenges and opportunities

The regulation of mine reclamation in Canada plays a vital role in ensuring the responsible development and utilization of the country’s abundant natural resources through the balance of economic development with environmental sustainability. As the mining industry evolves, alongside the evolution of environmental protection legislation and innovations in reclamation technologies, stakeholders are faced with a myriad of regulatory challenges and opportunities in implementing effective reclamation strategies.

Overlapping jurisdictions

One challenge stakeholders face is understanding the jurisdictional landscape which governs mine reclamation. The regulation of mine reclamation involves a sometimes-complex interaction between federal and provincial jurisdictions, often coupled with First Nations’ concerns. Provincial jurisdiction covers the ownership, administration, and control of public lands and minerals in Canada. However, the jurisdiction of the federal government can overlap with some aspects of mining-related activity, including the role it plays in regulating environmental assessments for certain mines, Indigenous rights and consultation, and other matters pertaining to federal lands and species under its jurisdiction.

The key federal statutes include the Impact Assessment Act (IAA) and the Fisheries Act, while provincial legislation varies across jurisdictions. These regulations set standards for environmental assessments, permitting, reclamation plans, and post-closure monitoring, ensuring compliance with environmental reclamation standards. Stakeholders must be familiar with the various application statutes in their relevant jurisdiction which will govern their operations. Understanding the robust and sometimes overlapping frameworks can present a challenge for stakeholders in regulatory compliance, particularly as the regulatory framework governing mine reclamation continues to evolve. Consultation with impacted First Nations will include review of reclamation plans in the context of traditional treaty and rights holders.

Impact Assessment Act: Application and challenges

The IAA serves as the legislation which sets out the framework by which the federal government assesses the environmental and Indigenous impacts of certain designated projects, including mining developments. Mining activities covered under the IAA are subject to rigorous government reviews and assessments. The IAA’s impact on mine reclamation, albeit indirect, is important, as the IAA evaluates the potential environmental effects of mining projects, including their impact on land, water, air, biodiversity, and ecosystem health, and these assessments set out the basis for the requirements for mine reclamation practices.

Mining project stakeholders previously affected by the IAA may now face uncertainty in the face of the decision of the Supreme Court of Canada (SCC) in October 2023, which found the federal IAA to be largely unconstitutional. The SCC found that the IAA’s regulation of “designated projects,” which include certain mining developments, was outside the legislative authority of the federal government. The federal government must redesign portions of the legislation to address these deficiencies. The approximately 20 mining projects currently undergoing federal impact assessment will continue to advance, but stakeholders may now have the opportunity to challenge these assessments in the event the provincial assessment process is sufficient for their operations. Until an amended IAA is enacted, no new projects will be designated for the purposes of the IAA.

Innovations in reclamation technologies

The emergence of technological innovations in mine reclamation presents promising opportunities for enhancing environmental outcomes and regulatory compliance, while, at the same time, presenting new jurisdictional considerations for regulators and stakeholders. Innovations such as remote sensing used to monitor compliance with regulations requiring revegetation as part of mine reclamation, and phytoremediation of mine tailings to extract contaminants and rehabilitate soil, present novel solutions for mitigating environmental impacts and achieving mine reclamation to the required standards.

However, questions arise as to what regulatory challenges such technologies may face — such as unclear legal frameworks leaving mine operators and regulators struggling to interpret how existing laws apply to emerging technologies. Additional regulatory challenges may arise through questions of data ownership, privacy rights, and security, when considering technological advancements such as remote sensing and data analytics. Additionally, effective governance of technological advancements in mine reclamation will be required to ensure sufficient collaboration between government agencies, industry, and Indigenous communities.

Liability management

Mine reclamation is a complex process, for which managing liability is crucial to ensure that operators have the financial resources to reclaim mine sites adequately to the applicable regulatory standards. Key challenges in liability management in mine reclamation include the following: ensuring the financial assurance mechanisms put in place adequately cover the costs of reclamation and closure activities; long-term liability planning; inconsistencies in regulatory enforcement and compliance depending on the resource or jurisdiction; and proper monitoring of the effectiveness of reclamation efforts and adaptive management programs.

Conclusion

Navigating the regulatory landscape governing mine reclamation in Canada presents both challenges and opportunities for stakeholders. Stakeholders must have a comprehensive understanding of the applicable legal frameworks, the opportunities presented through technological advancements, and how to legally incorporate such technologies in their projects. In addition, transparent and well-planned reclamation liability and security regulations will be critical to future sustainable development in the sector.

Alex MacWilliam is counsel at Dentons and leads the Canada region environment practice group. He advises Canadian and international clients on all legal and regulatory issues relating to the environment and sustainability. Kate Wiltse is an associate at Dentons’ Toronto office. In her practice, she assists Canadian and international clients on a wide variety of environmental and regulatory matters.

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