Nearly everyone agrees that the Quebec government’s Bill 14, An Act respecting the development of mineral resources in keeping with the principles of sustainable development, is an imperfect document. Tabled in May 2011 by Serge Simard, Minister for Natural Resources and Wildlife and Minister responsible for the Saguenay-Lac-Saint-Jean region and Côte-Nord region, the bill is designed to amend the existing Mining Act.
It follows the unsuccessful Bill 79, also designed to amend the Mining Act, which was abandoned on the floor after Premier Jean Charest prorogued the National Assembly in February 2011. Both bills came in the wake of an April 2009 report by Quebec’s Auditor General, which called into question Quebec’s ability to properly rehabilitate its abandoned mines.
According to the Quebec government’s Plan Nord materials, Bill 14 “introduces a major change of legislative direction […] based on the three key principles of sustainable development, to ensure that mining projects are better integrated into the community and to optimize mineral potential in Quebec’s regions.” To meet these ends, the Plan Nord materials explain that Bill 14 will “reconcile a range of land uses,” “stimulate exploration work on claims,” and “guarantee the cost of rehabilitating mine sites.”
Changes to the existing Mining Act are being demanded by many groups, not least of which includes those in the environmental sector, and Bill 14 responds in part to some of these demands, as well as to demands from other parties concerned about such issues as the expropriation of private property.
The changes that Bill 14 would make to the Mining Act are numerous and detailed, but some of the most significant changes are as follows:
• The bill separates ownership of mining rights from ownership of the soil involved. As a result, mining companies would no longer be able to expropriate private property in order to make explorations for possible mines. Instead, within 60 days of a company staking an internet-based claim, property owners would be informed and would have to give the work a go-ahead, otherwise the companies would be barred from exploring. Expropriation of private property for purposes of extraction would still be allowed.
• Private owners who have to sell or move their houses in order for a mining project to occur will have access to legal aid worth up to 10% of the value of their houses.
• Companies are ordered to interpret the Mining Act consistently with the obligation to consult Aboriginal communities. Under certain circumstances, the minister may be required to consult personally with the Aboriginal communities in question.
• Non-First Nations and Inuit municipalities will be given 12 months to designate new “urbanization perimeters” and “areas dedicated to vacationing”, which will be made off-limits to staking, exploration or mining operations. In order to work in these areas, a claims-holder would need permission from the municipality.
• Claims-holders will be required to hold public-consultation hearings in the region concerned before applying for a mining lease.
• At the present time, metal and asbestos mines that produce more than 7,000 tonnes of material per day (and all uranium mines) are required to provide an environmental impact assessment and public hearings before the Bureau d’audiences publiques en environnement (BAPE). Bill 14 lowers the output threshold triggering environmental impact assessment and BAPE hearings for metal and asbestos mines to 3,000 tonnes.
• Mine leases will only be granted to those companies that provide a rehabilitation and restoration plan. At the moment, companies are responsible for providing a financial guarantee of 70% of the costs expected to be required for restoring the mine in question; under Bill 14, they will be responsible for 100% of the expected costs, and will have three years to set these funds aside. In some cases, the entire guarantee will have to be provided before work begins; in others, companies will have to pay a first instalment of 50% within three months of getting a mining plan approved, and will have to pay the final two 25% instalments of within three years of the plan’s approval.
These changes may seem like a great victory to environmentalists, but representatives of the Nature Québec and of the Québec Meilleure Mine (QMM) coalition (which unites citizens, unions and environmental organizations) do not agree. While both, technically speaking, support the bill, they do so with great reluctance.
“It’s true we say we want to see this bill passed,” says Ugo Lapointe of QMM. “But the reality is more complex. What we recently came out in favour of was that, if there are going to be elections, then we thought the bill should be approved before the elections. With elections coming up, that would cause another delay of six months to a year before an improvement to the Mining Act was approved. It’s already been two and a half years since the first Bill  was proposed.”
Lapointe and his organization are not satisfied with the changes offered by Bill 14, but he is willing to settle for any improvement at all to the Mining Act as it exists in the present.
“The same legislation tells all companies – gas, petroleum, or mining – how to access the land and the resources,” says Lapointe. “[Bill 79] helped us to make Quebec realize that this Mining Act is ridiculous when it comes to citizens’ rights and the rights to the land. Bill 14 is imperfect in many ways, but if there’s going to be elections, the Mining Act needs to be improved as soon as possible.”
Lapointe’s colleague Christian Simard, of Nature Québec, is a partner in the Meillure Mine Coalition. He is even more emphatic in his criticism of the bill.
“We are not supporting Bill 14,” Simard says. “Both bills [79 and 14] were, and are still, totally insufficient to address the problems in the mining sector. But in the present context, we prefer weak reform to no reform at all. We’re afraid of going into an election with the old and obsolete Mining Act, with principles from two centuries ago. But it is very dangerous to manage old mines with the new law. The reality of this bill is terrible.”
The greatest problems with the Mining Act, both say, are not addressed in Bill 14.
“We are based in the free mining tradition,” says Lapointe, referring to the custom of allowing companies free access to land in which minerals are publically owned, the right to get the title to possess them by staking a claim, and the right to develop and mine the minerals discovered there. This tradition, he says, gives mining a priority over all other possible uses of land even when the other uses of the land have been determined to be more valuable.
Simard agrees. “If you want to create a national park, you still have to avoid mining claims: there’s a priority on exploration and the exploitation of minerals instead of the conservation of nature. When it’s outside of a protected area, this happens without any discussion, and it leaves the parks like Swiss cheese with holes permitted for exploration. This is not healthy. We’re deeply concerned that Bill 14 does not address the free mining principle directly.”
“Even on JBNQA lands,” says Lapointe, “the current legislative system doesn’t have the tools to keep this industry under control. There are hundreds of exploration projects being opened every year, particularly in the Cree and Inuit territories. There are between 50 and 100 exploration projects in the Eeyou Istchee alone every year – that’s a conservative estimate. They can go from small $10,000 explorations to $20-million-a-year projects. The Grand Council of the Crees and the Cree Regional Authority agrees that we need to reconsider how we manage the exploration phase.”
The QMM coalition advocates for dividing exploration work into three categories, low-, medium- and high-impact work, and setting different obligations and permits for each category of work. For medium- and high-impact explorations, the QMM wants to see companies forced to file project proposals with the government and communities concerned, and to get permission from First Nations leaders to begin their work.
Ideally, says Lapointe, Quebec should have a public registry of current exploration work being done on the land.
“So if a company wants to drill, or trench, or build a bush road,” Lapointe says, “they’d need to file their intention at least 30 days in advance. It doesn’t have to be sophisticated or complicated: just something saying ‘this is where I want to go, this is what I want to do, during these dates,’ so then at least the government and communities would have information in advance. Right now, the government doesn’t have information like that. How can they do inspections of these projects if they don’t even know where they are? It’s a simple demand, and a simple system.”
However, the problem of government inspections is partly irrelevant, says Lapointe, because of the gross underfunding of the agencies that are supposed to maintain the environmental safety of mines.
Lapointe says sadly, “The recent numbers say, for Abitibi-Témiscamingue, that the Minister of the Environment has, at most, four permanent people monitoring hundreds of exploration sites, 20 active mines, and dozens of abandoned mines.”
The legacy of these abandoned mines, or “orphan mines”, left behind by companies that went bankrupt or disappeared, is one of the biggest issues in Quebec mining. At present, the cost to the Quebec government and taxpayers of rehabilitating abandoned mines has been estimated at $1.25-billion. This enrages Simard.
“We know already that we’ll inherit new abandoned sites,” he says, “because we know certain companies are in the processes of bankruptcy and closure. It’s a problem to go forward with the Plan Nord without cleaning up the past.”
Industry leaders want to shirk responsibility for paying for cleaning up abandoned mines because they say they should pay for work done by their companies – a convenient excuse when their companies go bankrupt, absolving them of their duty to pay for cleanup.
“In the reality of this industry, very often there’s bankruptcy,” says Simard. “The leaders and specialists open new companies all the time, but it’s the same people and circumstances in different companies. We need to make an important signal to the industry that it has to be responsible for the mistakes of the past.”
Simard would like to see a tax of 0.5% to 1% levied on the sale of land for the purpose of mining, and the tax gains used to create a sovereign fund (as exists in Norway) to pay for the rehabilitation of abandoned mines.
“The Liberal government totally refused our proposal [of a sovereign fund],” he says, “but it was taken up by the opposition. They said they will do it, but I hope it will be in their electoral platform. Sometimes the opposition says one thing and does another thing later on when the election comes.”
Simard adds, “These are non-renewable resources. You’re stealing that from the next generations. If you exploit a generation for all available resources, you have to leave something behind to create prosperity for the next generation. This is a principle of ecological economy.”
For some in the present day, however, Bill 14 remains completely unacceptable. In August 2011, Chief Madeline Paul of the Eagle Village First Nation sent a letter jointly with Chief Harry St. Denis of the World Lake First Nation calling on Premier Charest to “Stop injustices towards First Nations before conflicts arise.” Both Nations are located close to Témiscamingue, where Sherbrooke-based Matamec Explorations Inc. is at an advanced state of exploration for a mine on traditional non-treaty Algonquin territory.
Reached at her office, Paul explains that she flatly opposes Bill 14.
“There’s not enough detail on First Nations in the bill,” she says. “It has one line and it’s not representative enough for First Nations. What I’d like to see that we’re consulted at the exploration stage and not at the development stage.”
Paul says Matamec felt that because they were not a government organization, they had no need to confer with First Nations leaders about carrying out explorations or mining on traditional First Nations lands.
“It took a while for them to realize that. With the act, the duty to consult and accommodate – they kind of don’t understand that aspect of it when it comes to First Nations.”
She agrees that the Mining Act is in desperate need of change, and admits that Bill 14 offers some improvements.
“But as a First Nation representative, no,” she says. “There’s nothing meaningful in there for First Nations. It’s too vague.”
At press time, Minister Simard, who tabled Bill 14, had not responded to the Nation’s request for an interview.