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Part D: Environment - 38. Environment | 38.7 Remediation of Environmental Damage

These types of provisions seek to address the clean-up of pollutants discharged into various media (notably, groundwater and soil) to prevent or otherwise minimize adverse impacts to the environment. Similar to reclamation provisions (provided below), remediation provisions often set up liability regimes, establish clean-up standards, and impose financial assurance obligations on the mining/exploitation license holder.

The details of such a framework do not have to be contained within a mining code, but such a framework should be established.

38.7. Example 1:

Article [_]

(1) The mining/exploitation right holder is responsible for any environmental damage, pollution or ecological degradation as a result of his or her reconnaissance/prospecting, exploration or mining operations and which may occur inside and outside the boundaries of the area to which such right, permit or permission relates.

(2) An applicant who prepares an environmental management program or an environmental management plan must describe the manner in which he or she intends to:

(a) Modify, remedy, control or stop any action, activity or process which causes pollution or environmental degradation; and

(b) Contain or remedy the cause of pollution or degradation and migration of pollutants.

(3) Power to recover costs in event of urgent remedial measures.

(a) If any prospecting, reconnaissance, exploration or production operations cause or results in ecological degradation, pollution or environmental damage which may be harmful to the health or well-being of anyone and requires urgent remedial measures, the [Regulating Authority] may direct the holder of the relevant right, permit or permission to:

(i) Investigate, evaluate, assess and report on the impact of any pollution or ecological degradation;

(ii) Take such measures as may be specified in such directive; and

(iii) Complete such measures before a date specified in the directive.

(4) If the holder fails to comply with the directive, the [Regulating Authority] may take such measures as may be necessary to protect the health and well-being of any affected person or to remedy ecological degradation and to stop pollution of the environment.

(5) Before the [Regulating Authority] implements any measure, he or she must afford the holder an opportunity to undertake such measures itself.

(6) In order to implement the measures contemplated in paragraph (3)(a), the [Regulating Authority] may by way of an ex parte application apply to a [Judicial Reviewer] for an order to seize and sell such property of the holder as may be necessary to cover the expenses of implementing such measures.

(7) In addition to the application in terms of paragraph (6), the [Regulating Authority] may use funds appropriated for that purpose by [Parliament] to fully implement such measures.

(8) The [Regulating Authority] may recover an amount equal to the funds necessary to fully implement the measures from the holder concerned.

Annotation

Drawn from South Africa’s mining law (2002), this provision, similar to what has been done, for example, in the U.S., sets up a mechanism for the government to conduct the remediation activities and then recover its costs related to such activities. In conjunction with this, some countries have also established a clean-up fund, whereby license holders contribute some amount each year to a fund that can then be used to clean-up e.g. abandoned sites or sites contaminated by a license holder who is unable to pay for the clean-up. This allows governments to address contamination right away, rather than wait for a legal process to conclude.

38.7. Example 2:

Article [_]

(1) An application for a mining activity license made under [relevant section] shall include an environmental management plan including the applicant’s proposals for eliminating or minimizing the adverse effects on the environment of prospecting, reconnaissance, exploration or production activities.

(2) A mineral rights holder shall be strictly liable for any harm or damage caused by prospecting, reconnaissance, exploration, production activities or mineral processing operations and shall compensate any person to whom the harm or damage is caused.

(3) Liability shall attach to the person who directly contributes to the act or omission which results in the harm or damage.

(4) Where there is more than one person responsible for the harm or damage, the liability shall be joint and several.

(5) Where any harm or damage is caused to the environment or biological diversity, compensation shall include the cost of reinstatement, rehabilitation or clean-up measures which are incurred and where applicable, the costs of preventative measures.

(6) Liability shall also extend to:

(a) Any harm or damage caused directly or indirectly by the prospecting, reconnaissance, exploration, production activities or mineral processing operations to the economy or social cultural conditions;

(b) Any negative impact on the livelihood or indigenous knowledge systems or technologies of any community;

(c) Any disruption or damage to any production or agricultural system;

(d) Any reduction in yields of the local community;

(e) Any air, water or soil contamination or damage to biological diversity.

(f) Any damage to the economy of an area or community; or

(g) Any other consequential disorder.

Annotation

Drawn from Zambia’s mining law (2008), this provision lays out a common liability scheme for addressing contamination, liability that is also joint and several. In other words, if multiple parties hold a license (or otherwise own and/or operate a site), all parties, regardless of relative responsibility for the contamination, are liable for the entire clean-up cost vis-a-vis the government and third-parties. This helps to ensure that those responsible for the contamination bear the financial burden of the harm caused. The extent of the liability (see paragraph (6) can be tailored to accommodate each country’s unique circumstances.