Regulators need more clarity on ordering safeguards for mining projects, lawyers say

Two lawyers are calling on the Northwest Territories to set clearer rules for how regulators can compel companies to include environmental safeguards in development projects.

John Donihee and Charles Birchall are presenting at the Yellowknife Geoscience Forum this week on a concept they hope is included in any new changes to the territory's environmental legislation.

It's called the precautionary principle.

The legal concept suggests regulators and governments be cautious and include environmental protections on projects that could harm the environment — even if it isn't scientifically proven that the project will do any harm.

"Even [if] we don't know exactly how [a project] would affect the environment, we should still take steps in order to mitigate that," Donihee explained.

A recent Nunavut Impact Review Board decision to approve a gold mine project from Sabina Gold and Silver Corporation is an example of this in action, he said.

• Once-rejected gold mine in Kitikmeot gets go-ahead from Nunavut review board
• 'State-of-the-art' caribou protection plans draw broad support for Sabina gold mine

In issuing the permit, the review board set 90 terms and conditions Sabina must follow to protect caribou herds. The proposed open-pit and underground mine would be on the eastern fringe of the Bathurst caribou range and in the midst of the Beverly/Ahiak herd.  

The precautionary principle first began internationally in the 1990s. It was recognized in Canadian law by the Supreme Court in a 2001 case involving the spraying of pesticides in Hudson, Que.

Clearing up uncertainty 

Since then, legislatures and review boards across Canada have used this idea in setting laws and making decisions on how projects should proceed.

This is an ideal time to look at putting this into law, said Kevin O'Reilly, the MLA for Frame Lake. As part of its mandate, the territorial government promises to revise several pieces of environmental legislation, including the Environmental Protection Act. 

"We live in uncertain times, particularly here in the Northwest Territories, with regard to climate change," O'Reilly said.

"Maybe we need to err on the side of caution, just to be on the safe side," he said. "Given that our environment is in pretty good shape, it's still the basis for people in small communities to live their lifestyle, it's very important we take good care of it."

Though the precautionary principle is being used already in decisions made in the Northwest Territories and Nunavut, Donihee said it's not clearly laid out in the N.W.T.'s mining regulations and is not applied consistently.

This week's presentation at the geoscience forum is designed to change that, he said.  

"It's uncertain as to exactly what the precautionary principle involves," Donihee said. "When it ought to be applied, who has the authority to apply it and how to make sure we get the best results when it is applied."   

"Let's be a little more focused in the way we apply this principle, let's tighten the language up, let's make it clearer to everyone," he said. 

The Yellowknife Geoscience Forum runs until Thursday.