Towards Zero Harm

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TOWARDS ZERO HARM – A COMPENDIUM OF PAPERS PREPARED FOR THE GLOBAL TAILINGS REVIEW

TOWARDS ZERO HARM – A COMPENDIUM OF PAPERS PREPARED FOR THE GLOBAL TAILINGS REVIEW

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CREATING AND RETAINING KNOWLEDGE AND EXPERTISE R. Evans and M. Davies

COMPARATIVE ANALYSIS OF TAILINGS – RELATED LEGISLATION IN KEY MINING JURISDICTIONS White & Case LLP • A comparison of the laws and regulations from a cross-section of nine key mining jurisdictions indicates that many of the Principles of the Standard are well-reflected in the laws and regulations of some of these jurisdictions. However, overall the ambitions of the Standard, when compared to domestic law, set a higher threshold for achieving the degree of integrity, safety and community protection necessary for the development and management of tailings facilities. • Where the research has identified certain areas in which the Standard sets a higher bar than legislation in Key Jurisdictions, this could provide the impetus for regulators to consider where changes could be made to address tailings facility safety and management. • The overall results of the analysis of tailings safety legislation in the Key Jurisdictions, expressed as average scores, show how the Standard can be a catalyst for improving the regulation of tailings facilities. They also highlight the need for a consistent global approach to tailings facility management, safety and operation. • The gap between the most and least aligned Key Jurisdictions draws out the need for more emphasis on catastrophic failure, accountability and engagement of communities as the starting point of tailings dams regulation. Working backward from a worst-case scenario informs the approach to permitting, approvals and enforcement from the beginning, which in turn sets the tone for iteration and improvement. • While legislation is an essential tool for regulating tailings facility safety and management throughout the lifecycle, other forms of best practice exist and jurisprudence is also developing. Both of these may also be effective in helping to achieve the goals of the Standard. SUMMARY OF EXISTING PERFORMANCE STANDARDS FOR TAILINGS MANAGEMENT C. Dumaresq • When development of the Standard was initiated, several other standards related to tailings management were already in place. Like the Standard, these standards address tailings management, governance, and community engagement and public disclosure. • International Council on Mining and Metals (ICMM) Performance Expectations were introduced in 2020 and are being implemented by ICMM’s 27 members. Commitments relevant to the Standard are described in:

• Technical expertise in the design and management of tailings facilities is unevenly distributed across the globe, as is access to relevant education programmes. • There is a need to go beyond a narrow engineering design focus and embed a multi-disciplinary approach within tailings-related education. • The ability to understand and apply Risk Management frameworks is a critical capability for tailings governance and needs to be explicitly addressed in education initiatives. • It is essential that all education and training programmes related to mine tailings, including university courses, have a strong practical as well as theoretical focus, and draw on experience and learning from case studies of failures. • At a time of increased concern regarding the management of tailings facilities, our ability to educate specialists and those charged with managing such facilities is limited by a shortage of qualified and experienced educators. • Globally, there are very few programmes that address the operational governance aspects of tailings facilities. The international development sector should be encouraged to support the development and deployment of such programmes in countries that cannot easily access this expertise. • States play a critical role in the success or failure of tailings facilities. • The Standard offers a roadmap for States for how to establish an effective regulatory programme for tailings facilities. • States have understandable concerns about their capacity to fund and implement a regulatory programme. Operators should therefore be expected to bear the cost of the programme, including the cost of training competent personnel. • States bear a substantial part of the burden when people and the environment suffer from tailings facility failures. States should therefore embrace requirements for adequate performance bonds to assure full reclamation and safe closure, and for insurance to cover liability for injuries to third parties. • States are uniquely positioned to monitor the performance of Operators and to take appropriate enforcement action where violations of tailings facility requirements occur. • States that lack the capacity to adopt and implement a sound regulatory programme with well-trained staff should work with other countries and the international community to build that capacity. THE ROLE OF THE STATE M. Squillace

- Position Statement: Tailings Management (2016) - Position Statement: Indigenous Peoples (2013) - Position Statement: Partnerships in Development (2010) - Position Statement: Water Stewardship (2017)