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Post-Extractivism: Debates and Practices

Regulating Mine Rehabilitation and Closure on Indigenous Held Lands: Insights from the Regulated Resource States of Australia and Canada

Réglementation de la réhabilitation et de la fermeture des mines sur les terres détenues par les autochtones : perspectives provenant des États aux ressources réglementées en Australie et au Canada
Regulación de la rehabilitación y el cierre de minas en tierras de propiedad indígena: Perspectivas de los Estados con recursos regulados de Australia y Canadá
Emille Boulot and Ben Collins


Countless environmental, social, and economic issues can stem from poor mine closure and post-mining land use planning practices. Such post-extractive landscapes have a disproportionate effect on local Indigenous communities that continue to live in these often remote areas on their traditional lands, with such peoples only recently being able to document and bring their values and stories to closure, rehabilitation, and post-mining land use policy. A strong regulatory environment is the often suggested response to such concerns, and this chapter examines the regulation of mine rehabilitation and closure (MR&C) practices in the developed resource states of Canada and Australia. Analysis of current regulation and policy along with examples from MR&C practice demonstrate that the regulatory state is failing to ensure social, economic, cultural, and environmentally safe landscapes for local Indigenous people on whose lands these mines were situated. This research highlights recent reform in both jurisdictions, primarily designed to limit state liability for abandoned mines, and the impact of that reform upon the influence and inclusion of Indigenous peoples’ interests and rights in MR&C. The chapter highlights the common structural, institutional, political and resource challenges that Indigenous peoples across Australia and Canada face in ensuring that their lands and country are effectively and safely rehabilitated, and argues that having a comprehensive regulatory environment is not enough. Greater Indigenous engagement, management, control and ownership of MR&C processes is required if we are to see better outcomes for local people in post-extractive landscapes.

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1. Introduction

  • 1 Also referred to as reclamation, more commonly in Canada.

1Compared to policy 30 or more years ago, mine rehabilitation and closure (MR&C) has come a long way towards ensuring that processes are in place to minimise environmental risks. Mine rehabilitation,1 initially concerned with simply re-establishing some form of vegetation cover and post-mine land use, has come to include the restoration of pre-existing ecosystems as well as social elements (Gardner and Bell, 2007; Nichols and Nichols, 2003; Trigger et al., 2008; Unger, Everingham and Bond, 2020). However, in many cases MR&C policy and research has only minimally considered the burden many local and Indigenous communities shoulder when inadequate MR&C occurs on or adjacent to their traditional lands and territories (Campbell et al., 2017; Everingham et al., 2018; Lawrence and O’Faircheallaigh, 2018).

  • 2 In this chapter, the word ‘Indigenous’, where not restricted by a specific qualifier, is used as an (...)

2The traditional lands and territories of Indigenous peoples2 in Canada and Australia are often abundant in natural resources and have been subjected to considerable mineral exploration and extraction since early European settlement (Behrendt and Strelein, 2001; Keeling and Sandlos, 2015). With the increased focus on land and economic rights for Indigenous communities, there has been significant discussion about the role of mining in facilitating the increased social and economic well-being of Indigenous people who live in remote, mineral rich areas (Gibson and Klinck, 2005; Jones and Bradshaw, 2015; Keeling and Sandlos, 2015; Langton et al., 2004; 2006; Missens, Dana and Anderson, 2007; Scambary, 2013). Despite significant concerns regarding mine legacy issues, including MR&C failure, abandoned mines, and mines in ‘care and maintenance’ (see Owen and Kemp, 2018), only limited attention in policy and regulation has been paid to the rights and concerns of Indigenous people who continue to live in these mined regions during and post mine closure (Annandale, Meadows and Erskine, 2021; O’Faircheallaigh, 2013).

3Considering Indigenous peoples always have ‘more to lose and significantly less to gain’ from the erosion of their natural capital (Stoeckl et al., 2013, 214), ensuring the ongoing social, economic and environmental well-being of such communities should be the priority of MR&C regulation. This chapter will discuss and compare MR&C regulation in both Canada and Australia, with the discussion grounded with examples from MR&C practice, to explore common political and structural challenges for Indigenous communities in MR&C, before identifying areas ripe for regulatory reform.

4It is not our intention to speak for Indigenous and local communities, but rather to highlight the ongoing challenges, both social and ecological, that such peoples face in post-extractive landscapes. Our suggestions for reform in this space are guided by such principles as self-determination and free, prior and informed consent. It is not our role nor our intention to provide specific social and ecological reform proposals, as only local communities can do that in line with their place-specific needs and interests, but rather to identify areas where settler colonial regulatory systems can create space for Indigenous engagement, participation, and control of the MR&C process with the aim of improving MR&C outcomes for local communities. We acknowledge of course that each Indigenous community is different, with different capacities, resources and opportunities to engage with mining companies and regulators. Our discussion is therefore more general in nature when we refer to Indigenous and traditional owners, and more concerned with the regulatory landscape.  

5The chapter was informed by the previous and ongoing research of the authors. Both have undertaken qualitative research regarding MR&C, in Australia and Canada, respectively. The Canadian case study was part of a collaborative research project with the Stk’emlupsemc te Secwepemc Nation and the University of British Columbia (Collins, 2015). It involved interviews and environmental surveys alongside First Nations traditional knowledge keepers of the Skeetchestn and Tk’emlúps te Secwepemc Indian Bands, as well as photographic and documentary analysis (Collins, 2015). The Australian research is from a larger doctoral research project on the regulation of restoration (see Boulot and Akhtar-Khavari (2020) for an overview). This research has included qualitative interviews with restoration practitioners, scholars and regulatory experts and is also informed by document and policy analysis, as well as participant surveys. In addition to the independent research of the authors, a comprehensive literature review of mine rehabilitation and closure in Australia and Canada was undertaken to inform our analysis of MR&C regulation across the two jurisdictions. 

2. MR&C in Australia and Canada

2.1 Key Definitions

6Multiple definitions of MR&C can be found across the mining sector. The International Council on Mining and Metals (ICMM) has defined MR&C as a process of planning and managing the decommissioning of a mine, the environmental rehabilitation of a mine including mitigating mining impacts to the landscape, and other legacy issues with the eventual relinquishment of the mining lease (ICMM, 2019). Closure in both Canada and Australia occurs when the government regulator releases the mine operator or owner from any liabilities and responsibilities associated with the mine.

7The same plethora of definitions exists for regulation. For the purposes of this chapter, we consider regulation to be ‘an authoritative set of rules, accompanied by some mechanism, typically a public agency, for monitoring and promoting compliance with these rules’ (Baldwin et al., 1998, 3, in Vivoda, Kemp and Owen, 2019, 410). Regulation in liberal market states is therefore a balance between facilitating economic development, in this case resource extraction, and simultaneously ensuring environmental and social outcomes for the state’s citizens as well as protecting them from the negative impacts of mining (Ioris, 2015; Vivoda, Kemp and Owen, 2019).

2.2 MR&C Practice, Policy and Regulation

8Mineral extraction has been a significant contributor to economic growth and liberal capitalism in both Australia and Canada (MacDonald and Sloman, 2020). The mining industry has made significant efforts to brand its activities in language that associates mineral extraction with ‘frontier development’, ‘prosperity’ and ‘nation building’, equating resource extraction with bringing wealth and civilisation to ‘undeveloped areas’ and thus with a moral imperative (Trigger, 1997; 1998; Nuttall, 2010). With the rise of environmentalism in the 1970s and 1980s came a growing recognition that mining had serious environmental and social consequences, resulting in attempts to incorporate ‘sustainable development’ within the mining industry (ICMM, 2022; World Bank Group and International Finance Corporation, 2002). The mining industry and mine regulators began to consider the impact of MR&C as well as future land use activities for mined lands (see, e.g., Department of Industry, Tourism and Resources, Australia (2006) and in Canada the ‘Towards Sustainable Mining’ (TSM) initiative and framework (MAC, 2004)). 

9Improvements in MR&C practices have also stemmed from mine sites becoming major environmental risks after closure. An estimated 60,000 abandoned mines exist in Australia (Unger et al., 2012) and at least 18,000 in Canada (NOAMI, 2015). Campbell et al. (2017, 2) write in relation to the Australian context that ‘[m]ine closure, complete rehabilitation and relinquishment of the former mine site is almost unknown’, with many mines entering a phase called ‘care and maintenance’, where, following active extraction, the company—not being obligated to close the mine—will ‘mothball’ the mine site with minimal investment in rehabilitation and resulting in the deferral of mine closure (Vivoda, Kemp and Owen, 2019). In addition, many companies have divested their mines that are reaching the end of their productive lives to less capitalised companies, often resulting in the purchasing company declaring insolvency and the liability transferring to the state (Owen and Kemp, 2018). The liability of poor closure practices can be significant. In northern Canada for example, the Faro and Giant mines have grown to become billion-dollar environmental liabilities after years of poor environmental practices and environmental planning (Government of Canada, 2018; Sandlos and Keeling, 2016). Stringent regulatory frameworks and the adoption of sustainable development practices have materialised in an attempt to reduce the environmental risk and costs of mine closure sites. 

10Unfortunately, there is a long history of local Indigenous peoples being largely excluded from the environmental management of their traditional lands (Bowie, 2013; O’Faircheallaigh and Corbett, 2005). Environmental management has often viewed nature as a space to be ‘protected or plundered’, effectively barring Indigenous people from a stakeholder’s role (Kinnane, 2005; Godden, 2012). As a result of this systemic exclusion, significant efforts have been made by Indigenous peoples worldwide to have their environmental rights recognised as interdependent with their cultural and economic rights so that they may undertake their custodial obligations to their country (O’Faircheallaigh and Corbett, 2005). Recognition of these rights has occurred in international law (with the International Labour Office’s ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1991, and the United Nations Declaration on the Rights of Indigenous Peoples, 2007). However, there has been limited recognition of these rights from a national perspective in both Australia and Canada despite acknowledgement that effective environmental management cannot occur without the involvement and support of local and Indigenous people (Langton et al., 2006; Mascia et al., 2003; O’Faircheallaigh and Corbett, 2005; Robertson et al., 2000).

  • 3 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 
  • 4 Tsilhqot’in Nation v. British Columbia [2014] 2 S.C.R. 256.

11Indigenous communities have been strongly advocating for better MR&C practice and regulation for many years (Annandale, Meadows and Erskine, 2021; Meadows, Annandale and Ota, 2019) and those who have seen their communities severely impacted by poorly managed mine sites are, on occasion, starting to have their voices heard during negotiations. In Canada, the Supreme Court Decisions of Delgamuukw in 19973 and Tsilhqot’in in 20144 have changed the landscape of Indigenous consultation requirements for resource development negotiations with Indigenous communities, recognising Indigenous communities as rights-holders rather than stakeholders, and there is a duty to consult with Indigenous communities on resource development matters. This is not the case in Australia, where Indigenous communities are still considered stakeholders, which means that they are considered an interest group and their legal entitlements regarding decision-making and participation are less than those of rights-holders. There remain, however, ongoing barriers to Indigenous engagement and to management and control of MR&C in both jurisdictions. These barriers, and some possible opportunities, are explored in the following.

3. MR&C Regulation and Its Application to Indigenous Communities in Australia and Canada

12In order to ground the discussion, we present here a brief overview of MR&C regulation in Australia and Canada before providing examples of the regulatory frameworks in action through the use of brief case study examples. The focus of this regulatory review is first to provide a general summary of the MR&C regulatory frameworks and identify the key regulators in the jurisdictions concerned. We then provide a more detailed review of the elements of the regulatory frameworks that are of particular importance in relation to local communities and their social, economic and environmental interests and futures as they grapple with mine legacies. Our focus here is upon the engagement, participation and decision-making power and control of local communities as well as on land rights and agreement made between local communities and mine operators. We provide case studies from the two jurisdictions to illustrate regulation in practice.

3.1 Australia 

13Resource extraction in Australia was initially subject to few environmental constraints (Bartle and Slessar, 1989). It is now recognised as temporary land use, with MR&C constituting an essential requirement to allow for future land use (Unger, Everingham and Bond, 2020). State and territory governments, the primary regulators of resource development, have developed more stringent MR&C regulation. Environmental and Social Impact Assessments (ESIAs) and Mine Closure Plans (MCPs) are now common requirements across Australia. This section will first examine the Commonwealth regulations before considering the regulatory arrangements in two significant resource states, Queensland and Western Australia.

  • 5 Matters of national environmental significance protected under the EPBC Act include listed threaten (...)

14At the federal level, the mining industry is regulated only where it concerns protected matters of national environmental significance5 under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) or where the national Native Title Act 1993 (NTA) provides for the negotiation of agreements on access to the Indigenous native title estate. Since the EPBC Act was enacted, 118 mining and resource projects have been approved under the Act (Parliament of Australia, 2017); however, no MR&C conditions have ever been applied to an approved mining and resource project (The Senate Environment and Communications References Committee, 2019). Under the NTA, potential mines are assessed for their impact upon native title rights and interests. Native title claimants are not allowed to refuse proposed projects, thus placing them in a poor bargaining position and negating the possibility of free, prior and informed consent (O’Faircheallaigh and Lawrence, 2019). A recent Commonwealth inquiry noted the impact of insufficient MR&C on Indigenous communities (Commonwealth of Australia, 2019), but not much is known about most negotiated access agreements under the NTA as they are usually confidential (O’Faircheallaigh, 2007; 2008; Bond and Kelly, 2020). A recent analysis of 50 such agreements by O’Faircheallaigh and Lawrence (2019), however, found very little discussion or agreement regarding MR&C conditions.

  • 6 The Queensland Audit Office’s (2013) review of Queensland’s environmental regulation found that the (...)

15At the state level in Queensland, the Department of Resources (DR) is responsible for mine licencing compliance, land access and abandoned mines, with mining authorised under the Mineral Resources Act 1989. The Department of Environment and Science (DES) is responsible for the environmental management of operating mines and overseeing MR&C under the Environmental Protection Act 1994 (Qld) (EP Act Qld). Prospective mine operators must apply for an environmental authority to conduct mining activities (EP Act (Qld) s. 125(1)) with the application detailing the proposed rehabilitation of the site post operation with a Progressive Rehabilitation and Closure Plan (PRCP).6 The DES assesses the PRCP and the MR&C for part of or the whole of a surrendered mining project (EP Act (Qld) ss. 318Z, 264) and signs off on mine closure certificates. 

16Rehabilitation is informed by departmental guidelines and policy which require the identification of ‘suitable post-mining land uses having regard to the surrounding landscape, community views and the objectives of any local and regional planning strategies’ (Department of Environment and Heritage Protection, Department of Natural Resources and Mines, and Queensland Treasury (n.d.), 2). Mine operators are required to achieve the highest practicable rehabilitation level and identify post-mining land uses that are acceptable to the community, local government and other relevant stakeholders. The Strong and Sustainable Resource Communities Act 2017 (Qld) (SSRC Act) also requires that mine operators undertake a ‘Social Impact Assessment’ in order to ensure that communities located near mines benefit from extractive projects and that ongoing engagement is detailed.

17Across the regulatory framework, Indigenous traditional owners are recognised only as stakeholders. The economic and cultural concerns of Indigenous traditional owners and communities are rarely considered, with MR&C primarily concerned with meeting environmental indicators (Annandale, Meadows and Erskine, 2021; State of Queensland, 2018). 

18One example of the regulatory system in practice is that of bauxite mining in Weipa, Queensland, where the publicly available rehabilitation management plan for the Weipa operations (ML7024) concerns itself largely with the environmental authority conditions, aiming—following mine closure—to establish a sustainable native ecosystem similar to that which predated the mine. The overall objective is to ‘return the land to a post-mining land use that will be stable, self-sustaining, requires minimal maintenance, and protects downstream water quality’ while recognising the post-mine landform will be considerably altered (Rio Tinto, 2019, 25). Social, cultural and economic considerations in MR&C for the region can be found in other agreements between the mine operator and traditional owners. Traditional owners may, for example, request alternative land rehabilitation forms under the Western Capes Communities Co-existence Agreement (Rio Tinto, 2019); Rio Tinto does not, however, have to concede to such requests, and additional costs may be borne by the traditional owners. The Communities, Heritage and Environmental Management Plan (CHEMP) envisions that Rio Tinto and the traditional owners will work together to manage community, heritage and environmental values of the project area (South of the Embley Communities, Heritage and Environment Working Group, 2014). In line with the rehabilitation management plan, the CHEMP aims to establish viable ecosystems similar to surrounding ecosystems but recognises that rehabilitation is both an environmental and a cultural process, acknowledging ‘the aspirations of Traditional Owners to be actively involved in caring for country’ (South of the Embley Communities, Heritage and Environment Working Group, 2014, 37). There are concerns that there continues to be a lack of consideration of the interests of local communities in developing integrated economic opportunities through the MR&C process (Annandale, Meadows and Erskine, 2021). 

19In Western Australia, the Mining Act 1978 (WA) (Mining Act) requires all applications for a mining lease after June 30, 2011 be accompanied by an MCP. Such plans must be in accordance with statutory guidelines prepared by the Department of Mines, Industry Regulation and Safety (DMIRS, 2020). Prospective mine operators are required to pay upfront rehabilitation bonds and progressive rehabilitation is promoted, with approval required before land subject to MR&C is relinquished. Where it appears that a mine proposal is a significant proposal as defined under the Environmental Protection Act 1986 (EP Act (WA)), DMIRS must refer it to the Environmental Protection Authority (EPA) to determine whether the proposal requires a formal Environmental Impact Assessment (EIA). The EIA process requires the prospective mine operator to document environmental impacts and its environmental management controls.  The EPA will also formally assess mine closure under Part IV of the EP Act (WA) where projects are not subject to the Mining Act or in cases where the EPA considers there to be a significant impact or risk and identifies rehabilitation and closure as a key environmental factor. The EPA will consider the prospective mine operator’s proposal, alongside public input and expert advice, before making a recommendation to the relevant Minister. Over 70 per cent of mines in Western Australia have rehabilitation and or closure conditions applied through a Ministerial Statement in addition to requirements for an MCP under the Mining Act.

20The guidelines are concerned primarily with environmental indicators, stating that rehabilitation aims to return ‘disturbed land to a safe, stable, non-polluting/non-contaminating landform in an ecologically sustainable manner that is productive and/or self-sustaining and is consistent with the agreed post-mining land use’ (DMIRS, 2020, 13). Indigenous peoples are not directly identified in the guidelines but can be assumed to be key stakeholders (if identified as post-mining landowners and managers), with no consideration of traditional owners’ economic, cultural and environmental rights. 

21One example of the application of the framework can be found in the Thunderbird Mineral Sands Project, located on the Dampier Peninsula in the west Kimberley region of Western Australia. The MCP for the project states that following mine closure the land is to be returned to pastoral land use in a condition similar to surrounding land at the time of closure. The mine operator aims to close the mine ‘in a cost-effective and efficient manner’ with MR&C to be undertaken commensurate with the value of the land for post-closure uses (MBS Environmental, 2016, 30). In addition to the MCP, a Native Title Mining Agreement has supplementary rehabilitation requirements regarding the visual amenity of the post-mine landscape, the storage of topsoil for revegetation and the collection of local seed. The Agreement also identifies requirements as to the protection of heritage sites, visual impact requirements post-mining, post-mine land use and management, as well as employment and other financial benefits (MBS Environmental, 2016; 2017). The key focus of the miner in relation to MR&C, however, is financial cost and efficiency.

3.2 Canada

22Canada’s policies and decisions on MR&C largely fall within the portfolios of provincial governments and territorial governments. Each province establishes closure codes and rehabilitation requirements. As mines go through permitting and consultation, the federal government oversees Indigenous relations through an Intergovernmental Working Group, which is a group of community members, community leaders, and regulators. The federal government also oversees ‘fisheries, fish habitat, and ocean-related activities’, with projects potentially affecting Canada’s waterways reviewed by the Department of Fisheries and Oceans (DFO).

23Federal Environmental Assessments (EAs) may be conducted along with provincial EAs if ‘in the Minister’s opinion, either the carrying out of physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation’ (Government of Canada, 2012). For mining projects (other than uranium mines), a project requires a federal EA if it has a high potential for environmental impacts or requires significant consultation with Indigenous communities. The potential risk and impacts of a mine depend on its size, the mining method, water use, and mine waste management practices, as well as the area’s mineralisation, hydrology, climate, and Indigenous traditional land use.

24Closure guidelines often used by Canadian mining companies—such as the Mining Association of Canada (MAC, 2004) and ICMM (2008)—provide a high-level discussion of what is needed in a reclamation and closure plan. This includes reclamation objectives, progressive reclamation, removal of structures, standards for tailings and waste rock disposal, water resources, revegetation ‘wherever practicable’, and ongoing monitoring plans. They discuss the consideration of scientific, traditional, and local knowledge in MR&C and provide that ‘feasible and practical’ closure activities should benefit local communities and First Nations.

25At a provincial level, British Columbian (BC) legislation requires every mine to be responsible for preparing a closure and reclamation plan in advance of receiving permission to start mine construction (BC Ministry of Energy and Mines, 2017). Through the Major Mine Permitting Office (MMPO) applications are reviewed by either the regional Mine Development Review Committee (MDRC) or a project-specific committee, which is comprised of technical staff from federal and provincial regulatory agencies and chaired by the district inspector of mines (Government of British Columbia, 2019; Schmitt, Ames and Stoopnikoff, 2008). Local governments, Indigenous community members, and public representatives are invited to provide input. The MDRCs establish requirements, as specified in the regulations, for land use objectives, water quality, productivity, stability of structures, baseline studies, and environmental impact studies. Mine closure and reclamation plans are required to be updated at least every five years.

26The Health, Safety, and Reclamation Code for Mines in British Columbia establishes the MR&C requirements for each area of the mine site. The code details what information needs to be provided to the chief inspector to ensure the physical and chemical stability of the mine. Reclamation requirements, including revegetation, soil cover, water courses, etc., are based upon the agreed post-mining land use approved by the chief inspector (BC Ministry of Energy and Mines, 2017). This all leads to potential cost estimates for MR&C. As per the BC Mines Act (1996) the Lieutenant Governor in Council may require the establishment of a fund (commonly in the form of a bond) to ensure there is adequate money to close a mine.

27Understanding and collecting Indigenous traditional knowledge is a key step in BC’s provincial EA and feeds into the final land use, closure, and reclamation plans. Engagement with communities is often through chief and council, but is expanded to town halls, community forums or larger meetings when EA applications and information becomes more established.

28This inclusion of Indigenous interests and post-mine land use desires is not without its conflicts. Indigenous governance systems can be more diverse than envisioned by the regulation of Indigenous engagement (Ford and Rowse, 2013; Law Commission of Canada, 2008). The chief and council jurisdictions were set up by colonial legislatures who for a long time ignored and overruled Indigenous governance. MR&C regulation can therefore fail to consider the diversity of Indigenous governance by not fully considering hereditary chiefs, family leaders, and other community leaders who have a long history of involvement in their nation’s decisions (Menzies, 2006). Unfortunately, processes like EAs do not necessarily ensure that the culture, knowledge, wants, needs and values of Indigenous communities are protected. Such processes often use technocratic approaches that may not coincide with how Indigenous communities make decisions, and such processes may not provide the resources and support required for communities with lower capacities to engage (Myette, 2022).

29In addition, MR&C processes can fail to adequately communicate post-mine landscape options to Indigenous communities or to fully integrate a community’s vision for a post-mine landscape. In the case of the New Afton Mine, located in Kamloops, BC, in the traditional territory of the Skeetchestn and Tk’emlúps te Secwepemc nations, MR&C struggles to adequately address all the interests and concerns of the local Indigenous people.

30The New Afton Mine is an underground copper–gold mine with a long history of operation and of considerable disturbance from many years of mining (SSN, 2017).  The current mining permit discusses closure requirements including wildlife protection, vegetation management, soil salvage and storage, cultural heritage resources and air quality. During the permitting process, environmental concerns were raised by First Nations chiefs, particularly in relation to surface and subsurface water resources, the protection of cultural heritage, wildlife, and vegetation, reclamation of roads, mine waste piles and tailings, geotechnical stability, fuel or reagent spills and air quality (Permit M-229 New Afton, 2007). The permit outlines post-mine land use objectives as livestock grazing, wildlife habitat, and traditional land use where appropriate.

31In 2015, interviews were conducted with traditional knowledge keepers of the Skeetchestn and Tk’emlúps te Secwepemc nations to understand the traditional land use of the area and to discuss their MR&C objectives for the New Afton Mine site (Collins, 2015). The list of traditional knowledge keepers was selected and approved by the Skeetchestn and Tk’emlúps te Secwepemc leadership. The traditional knowledge keepers were typically elders whose families had lived in the territory for generations.

32The research found a significant disconnect between what the community wanted for a post-mine land use plan and what was technically feasible. For example, the subsidence zone, caused by the block caving mining method, is fenced off and access will be restricted in perpetuity. Access was one of the most important requests from the community and the permanent closure of part of their land was unacceptable to the local community, but considered an issue of safety for the mining company and regulators due to the risk of collapse.

33Many traditional knowledge keepers also wanted the mine site area to be returned to native grassland. However, grasslands in the Kamloops region have changed significantly in the last 100 years due to grazing, climate change, forestry, water usage and general development in the area. To return the already heavily disturbed land to native grassland would take many decades and is almost impossible with currently available technologies.

34Despite significant engagement and input from First Nations peoples throughout the planning phase, the inherent impacts of the mining method selected resulted in an unacceptable post-mine landscape. Ensuring that Indigenous communities are included in mine planning and are effectively consulted is an ongoing concern in BC. Finding and communicating realistic post mine solutions as well as aligning mining methods with desired post-closure landforms and use remains an ongoing challenge for regulators and Indigenous communities.

35In the Yukon, a northern Canadian territory, mining has a long history starting with the Klondike Goldrush of the late nineteenth century (Coates and Morrison, 2017). In April of 2003, the Yukon became the first of Canada’s three territories to take control of its land from the federal government. The requirements, principles, and guidelines for closure and reclamation are set out in the Yukon’s Quartz Mining Act and the Yukon Mine Site Reclamation and Closure Policy. These documents allocate responsibility to the mine operator to develop a robust closure plan and ensure adequate funds are in place for MR&C. The principles promote the use of progressive reclamation and adaptive management, and encourage an understanding of the views of ‘all relevant Yukon government departments, affected First Nations, local communities, and stakeholders’ (Government of Yukon, 2006). Certificates of Closure are issued only once the Yukon government has consulted with the mine operator, affected First Nations, and local communities, as well as interested stakeholders (Government of Yukon, 2006). 

36Despite mining contributing to the shift towards a mixed wage–based economy in the Canadian North, away from a traditional land-based economy (Rixen and Blangy, 2016), many Indigenous community members have struggled with this shift, preferring traditionally based lifestyles (Carter, 2013). This is one key reason why Indigenous employment and retention, despite significant policy development, can be very low, resulting in less economic benefits from mining for the region (Collins and Kumral, 2021; Petersen, 2012). MR&C is therefore essential to ensuring that traditional practices such as hunting, trapping and fishing can continue long after mining operations end, and that community members are able to maintain their traditional practices during the entire mine life cycle. As LeClerc and Keeling (2015) and Rixen and Blangy (2016) have shown, however, MR&C planning has failed to produce long-lasting benefits, both social and economic, for these northern communities.

37Consultation with Indigenous communities is a requirement in all MR&C regulation across Canada, but these regulations do not ensure the incorporation of the local community’s interests into final decisions. Overall, local community engagement and collaboration is improving, but outcomes can be drastically different depending on the region, regulator, community and mining company. When there are disagreements, our decision-making and regulation processes can struggle to allow differing perspectives into a final decision (Collins and Kumral, 2022). Moreover, there are limited mechanisms via which a community might refuse the closure plan if the inspector feels all requirements have been met by the company.

4. Discussion

38There follow some key findings that emerge from the regulatory case studies identified in Section 3. Regulatory similarities and differences across the two jurisdictions were identified and inform these findings. Despite differences between the regulatory systems, we find that MR&C failure is a significant risk to Indigenous and local communities across both jurisdictions and that the regulatory frameworks, while much improved, are not comprehensively delivering secure ecological, social and economic afterlives for post-mine communities.

4.1 ‘Toxic Legacies’: MR&C Regulation is Failing to Ensure Viable Post-extractive Landscapes for Indigenous Peoples

39With much of Australia and Canada’s mining activities neighbouring Indigenous communities (see Hunter, Howlett and Gray (2015) for example), Indigenous peoples have more to lose from poor mine rehabilitation and closure than the majority of Australians or Canadians as they do not leave when the mines close (O’Faircheallaigh and Lawrence, 2019). In cases of failed closure and reclamation, future local generations will continue to bear the often significant social, ecological, health, economic and cultural costs, or what Keeling and Sandlos (2015) call ‘toxic legacies’. Despite this very real issue of environmental justice, Indigenous communities continue to face structural, political and institutional barriers to involvement in MR&C regulatory processes. Indigenous interests continue to be largely devalued and rendered invisible by other interests that coexist on their traditional lands, where invariably water and natural resource rights are granted to mining companies and more prominent systems of values—upheld by engineers, planners and environmental scientists—take precedence (Lane and Cowell, 2001). 

40Recent reforms of MR&C across Canada and Australia indicate that these resource states are largely concerned from a regulatory perspective with ensuring mining companies have sufficient financial capacity to ensure mine closure for post-mine land use and that the state is not left with the liability of mine rehabilitation (Mills, 2022). Regulation largely seeks to ensure viable post-mine land use using environmental/biophysical indicators that are singularly focused upon ecosystem responses with fine spatial scales. This regime asserts it is possible to ‘borrow’ temporarily from nature and to return it to a form similar to that of its previous ecology or to a system that will facilitate future economic use (Trigger, 1997). Successful MR&C is, however, very rare. Challenges, including changes in geomorphology and ecosystem function resulting from what can be decades of mine operation, may result in an inability to support a similar ecosystem or suitable post-mine land use (Collins, 2015; Lamb, Erskine and Fletcher, 2015) and can also result in extensive ‘novel’ ecosystems with limited social or ecological value (Erskine, Vickers and Mulligan, 2008). The variation in mine closure planning and costing can be immense due to variability in orebody estimation, environmental baseline studies and variable estimations in construction costs. Funding for contingencies can be the largest line item for MR&C, potentially making up 20 per cent of the total projected MR&C cost (Brodie 2013). Many mines close prematurely or in an unplanned way, increasing the likelihood of MR&C failure (Laurence, 2006). MR&C failure has the potential to far outweigh any positive economic and social benefits that Indigenous people might receive from mining on their traditional lands (Lawrence and O’Faircheallaigh, 2018). Furthermore, successful ecosystem recovery can take decades if not centuries (Nilsson et al., 2016), raising the question of whether mining can really be considered temporary land use. In both Canada and Australia, MR&C is often completed in short time frames, often resulting in poor recovery outcomes. Participant interviewees raised concerns that the regulators do not have the capacity, resources and expertise to ensure that MR&C delivers resilient native ecosystems or even viable agricultural land.

41MR&C regulation across both Australia and Canada is inconsistent from state to state, province to province, nation to nation and company to company. The different levels of governance within both countries generally function cooperatively but at times can work separately, creating a confusing and overly bureaucratic environment for Indigenous engagement and collaboration. Our analysis of the regulatory frameworks across both jurisdictions suggests that these resource states are failing to prevent the negative social, cultural, economic and environmental impacts of MR&C and are placing Indigenous peoples at risk of intergenerational environmental injustice.

4.2 Improving MR&C Regulation

4.2.1 Long-Term Regulation

42Much of MR&C assessment, as well as Indigenous stakeholder engagement and inclusion, is concentrated within the front-end assessment and approval phase (O’Faircheallaigh and Lawrence, 2019). Involvement in this process can be costly for local communities and they may not have the expertise to engage in these administrative and legal avenues. Much MR&C regulation with respect to social engagement and participation is—Vivoda, Kemp and Owen (2019, 422) argue—‘enabling’, with few regulatory restrictions or opportunities for local communities to intervene in the later phases of mine projects. O’Faircheallaigh and Corbett (2005) note that the opportunities for involvement by local communities are primarily predicated upon the project operator’s discretion in providing traditional owners with the space to make decisions and engage with the project operator (see the bauxite mining example from Weipa, above). Considering many mines operate over long time periods, often upwards of 30 years, this lack of ongoing participation can result in the long-term exclusion of traditional owners from the management of their own territories. It can also result in monitoring, compliance and enforcement issues, a lack of both medium- to long-term stakeholder engagement and input and opportunities for traditional owner reassessment of MR&C objectives throughout the often decades long resource extraction project (Vivoda, Kemp and Owen, 2019).  Exceptions can be found, however, in BC, where mine closure plans must be updated every five years, and in recent reforms that require progressive rehabilitation (for example, in Queensland, Australia) and ongoing review (for example, five-yearly reviews of mine closure plans in BC). These reforms were substantially motivated by concerns regarding state liability for MR&C failure (Mills, 2022), and initial observations from interview participants suggest that they show signs of increasing positive MR&C outcomes. Effective long-term active management and long-term funding of MR&C remain, however, live issues. Mining companies often seek to relinquish mine leases only five to ten years after mines cease production, which shifts the responsibility for the management of threats to recovery—such as weeds, feral animal control, and fire—to the landholder (often the state or communities) and can compromise recovery outcomes (Annandale, Meadows and Erskine, 2021), especially as ecosystems can take centuries to recover (Nilsson et al., 2016).

43Such long-term management should not, however, be limited to just biophysical indicators. Certainly, ensuring the ecosystem recovery of a post-mine landscape is necessary to ensuring positive MR&C outcomes, but it is not enough. To ensure just post-extractive landscapes, increased regulatory attention to the ongoing social and cultural elements of MR&C is required (O’Faircheallaigh and Lawrence, 2019). This means that long-term management requires the long-term engagement and participation of local communities. Post-mine landscapes should be principally guided and developed with local Indigenous people, who have both environmental and social expectations of the post-mine landscape (Annandale, Meadows and Erskine, 2021; Collins, 2015). Social and ecological management of mine legacies requires adaptive, active management, stakeholder engagement and decision-making, monitoring, enforcement and assessment if it is to effectively deliver successful MR&C (Annandale, Meadows and Erskine, 2021; Bainton and Holcombe, 2018).

4.2.2 Valuing Indigenous Input

44Regulation that is adaptive and responsive to local communities also requires the incorporation and valuing of multiple sources of knowledge (Gómez-Baggethun, Corbera and Reyes-García, 2013). MR&C policy and practice across Canada and Australia is largely concerned with meeting environmental and health indicators and ensuring future land use. There has been a recent push from mining regulators in Canada to protect and use traditional knowledge, but the manner in which it is expressed is often neither consistent nor appropriate, as noted by Sandlos and Keeling (2016). The usual technocratic, biophysical approach to management of MR&C is not in agreement with the manner in which many traditional owners conceptualise their relationship to land. Many traditional owners view their relationship to land as one that does not differentiate between culture and environment (de Castro, 2004; Descola, 2014; Wik Projects Ltd., 2009). Thus, MR&C regulation should include not only the biophysical sciences, but also social and economic sciences, and local ‘factual’ information. This combination of information contributes to an overall information database with linkages between the data collected, the geographic and spatial context, and the motivational value of the project (Annandale, Meadows and Erskine, 2021; Mascia et al., 2003; Robertson et al., 2000; Unger, Everingham and Bond, 2020). While strong Indigenous engagement may result in higher complexity and higher transaction costs, the effective engagement, consultation and knowledge of local communities along with their beliefs, values, norms and rules will likely increase the success rate of MR&C and help to avoid potential community backlash and social risk (Mascia et al., 2003; O’Faircheallaigh, 2008). Further empirical research is required to assess the potential of MR&C that envisions the restoration of biocultural landscapes (see Annandale, Meadows and Erskine 2021), but initial indicators suggest it may result in better collaboration, recognition of traditional owners’ rights, and a certain economic potential for traditional owners who remain on ‘country’ (as Indigenous Australians commonly refer to their local homelands). To date, however, MR&C regulation largely remains focused on undertaking rehabilitation and closure in a cost-effective and efficient manner that meets environmental indicators and does not result in mining legacies for the state (Joyce and Thomson, 2000; MBS Environmental, 2016; O’Faircheallaigh, 2008; Prno and Slocombe, 2012). Matters of Indigenous input, engagement and participation are left to the discretion of mining companies.

4.2.3 Developing Community Control

45While there has been a de-emphasising of Indigenous rights in favour of an examination and quantification of equality indicators (Scambary, 2013), traditional owners are rights-holders. Mining companies working within the sustainable development paradigm of corporate social responsibility should be engaging with them as such, not just as a stakeholders—as should MR&C regulation and policy (Lawrence and O’Faircheallaigh, 2018; The Mining Association of Canada, 2017). The regulatory landscape on this issue differs across Australia and Canada, and is an interesting point for comparison as Canada has made some significant progress in engaging First Nations members as rights-holders. 

46In Australia, mining companies do not have to, and often do not, engage and consult with Indigenous peoples before preparing mine closure plans (MBS Environmental, 2016; O’Faircheallaigh, 2013). Traditional owners rarely have significant decision-making roles in MR&C and there is limited articulation of Indigenous interests (Wik Projects Ltd., 2009; Lawrence and O’Faircheallaigh, 2018; Rum Jungle Traditional Owner Liaison Committee, 2018). Indeed, the Queensland government’s mine rehabilitation policy and the discussion paper Better Mine Rehabilitation for Queensland do not mention native title or Indigenous persons at all (State of Queensland, 2017). At the federal level in Australia, guidelines acknowledge the benefit of engaging and working with Indigenous communities on MR&C planning but do not detail what should be communicated to traditional owners, the level of engagement and collaboration that should occur, or how Indigenous objectives can be achieved (Commonwealth of Australia, 2016a; 2016b). Mining industry guidelines are similarly deficient (ANZMEC and MCA, 2000). Despite its ubiquitous use, the sustainable development mantra as adopted by the mining industry has thus been criticised as a conceptual and political position ‘explicitly conceived as a strategy for sustaining “development”, not for supporting the flourishing and enduring of an infinitely diverse natural and social life’ (Esteva, 2005, 16; see also Lanzano (2022) for a review of the mining/sustainability relationship in anthropology). 

47All this differs from the approach in Canada, where—relatively recently—provincial governments have attempted to include Indigenous communities during environmental assessment and permitting stages (Boiral, Heras-Saizarbitoria and Brotherton, 2020). The process and success of collaboration can differ drastically depending on the policies of the mining company, the expertise of the regulators, and the capacity of the community (Warhurst and Noronha, 2000). It is difficult to determine from the outset whether a collaboration process will be successful and consider the interests of different groups within a community. Additionally, it remains to be seen whether the process will be able to provide the community not only with short-term economic opportunities, but also with long-term sustainable value. 

48Land rights and economic rights can significantly improve the bargaining power of a community, rights to refuse resource extraction, for example, sometimes leading to better socio-economic outcomes for communities (Adebay and Werker, 2019).  Such rights should also include the right to be fully informed of post-closure landscape feasibility, something that mining companies have sought to avoid (Lamb and Coakes, 2012). It is often not possible to restore mined areas completely due to the nature of the landscape degradation and the mine type (Collins, 2015). As the example of the New Afton mine indicates, communities (and government regulators for that matter) sometimes have little understanding of the technical constraints of rehabilitation. Failure to communicate the full extent of environmental issues that might exist post closure, such as those associated with the Faro and Giant mines in northern Canada (Government of Canada, 2018; Fawcett et al., 2015; Sandlos and Keeling, 2016) raises the issue of whether communities have been able to fully provide free, prior and informed consent to mining on their traditional lands. Bona fide engagement with traditional owners and the local community should be required in order to identify appropriate and possible post-mine land use options, and local communities should have the authority and the right to refuse mine closure certificates if closure does not meet their expectations of the post-mine landscape. More regular engagement with communities is also needed, all the way up to, and throughout, MR&C (Unger, Everingham and Bond, 2020). Such engagement is essential for meeting the environmental and economic MR&C expectations of local communities and acknowledging that these expectations are likely to change over the long life of the mine (Annandale, Meadows and Erskine, 2021).

49Independent, community-led social and environmental assessments could help provide a better way for communities to discuss and communicate their concerns regarding major projects; unfortunately there are few examples of this being facilitated. Boulot (2017), meanwhile, suggests that traditional owners should be involved in mine operations as operators, stakeholders and equity owners, with mandatory positions on the board of the mining operator and exerting control over MR&C in order to preclude mine legacy concerns. An example of an Indigenously owned mine can be found in the Gulkula bauxite mine in northern Australia, with initial reports suggesting positive rehabilitation processes (Menon et al., 2021).

5. Conclusion 

50Indigenous communities continue to face significant barriers to their environmental management of their own lands, particularly when these lands are subject to mineral extraction. Regulation aimed at facilitating their involvement is often discretionary, with policy and guidelines (some prepared by the industry itself) giving only minimal direction as to best practice when engaging and collaborating with Indigenous traditional owners in the preparation of MCPs as well as regarding ongoing environmental management. Indigenous communities are still marginalised by regulators in the narratives of sustainable development and sustainable mining despite their specific vulnerability to MR&C failure and the significant and increasing risk of cultural, environmental and economic losses.

51Traditional owners must therefore have more regulatory opportunities for involvement, and more decision-making powers, from the very beginning to the very end of mine projects, with opportunities to reconsider rehabilitation/restoration outcomes over the mine life cycle. Their stories, culture and aspirations for future land use can help frame MR&C goals and ensure effective, ongoing cultural connections to landscape and country. Exactly how much consideration and engagement is required is place-, community- and mine-specific, and requires careful support from regulators.

52In addition, Indigenous communities that border on or own mining sites should be recognised as rights-holders and enjoy appropriate regulatory avenues for involvement and decision-making. Such rights should include, at the very least, the opportunity to refuse mining on their ancestral lands. Free, prior and informed consent is impossible when refusing mining development is not an option (Bond and Kelly, 2020). The right to refuse also places Indigenous peoples in a better bargaining position and potentially improves their economic, social, environmental and cultural outcomes (O’Faircheallaigh and Corbett, 2005).

53Ensuring better MR&C outcomes may also require financial bonds to be paid directly to communities and traditional owner groups. This process, supported and facilitated by regulatory bodies with appropriate enabling regulatory frameworks, would not only support Indigenous peoples’ right to self-determination, it could also protect local communities against the risk of failed MR&C. Such community bonds might provide communities with the financial security to meet some of the social costs of mine closure and constitute economic opportunities from MR&C other than those offered by simple mine royalties. Such a process would necessarily require the involvement of traditional owners throughout the entire mine life cycle. 

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1 Also referred to as reclamation, more commonly in Canada.

2 In this chapter, the word ‘Indigenous’, where not restricted by a specific qualifier, is used as an inclusive term to include Canadian First Nations, Aboriginal, and Métis communities, as well as communities in Australia and the Torres Strait that designate themselves as Aboriginal, First Nations, or Indigenous peoples. ‘Traditional owners’ is a more specific term used to refer to the Indigenous descent groups who are the owners of particular areas of land or of a country.

3 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 

4 Tsilhqot’in Nation v. British Columbia [2014] 2 S.C.R. 256.

5 Matters of national environmental significance protected under the EPBC Act include listed threatened species and communities, listed migratory species, Ramsar wetlands of international importance, Commonwealth marine environment, World Heritage properties, national heritage places, the Great Barrier Reef Marine Park, nuclear actions, and water as a resource in relation to coal seam gas development and large coal mining development (EPBC Act, Part 3).

6 The Queensland Audit Office’s (2013) review of Queensland’s environmental regulation found that the environmental remediation of mines was ‘an unrealised aspiration’ with serious mine legacy concerns. State liability for MR&C failure was estimated to be USD 6.7 billion (AUD 8.7 billion) in 2017 (Queensland Treasury Corporation, 2017). Following this review, the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) amended the Qld EP Act and introduced the requirement for PRCPs. Ongoing concerns regarding mine rehabilitation and closure have also seen the recent appointment of the Queensland Rehabilitation Commissioner, an independent statutory position to assist in developing best practice mine rehabilitation management.

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Cite this article

Electronic reference

Emille Boulot and Ben Collins, Regulating Mine Rehabilitation and Closure on Indigenous Held Lands: Insights from the Regulated Resource States of Australia and CanadaInternational Development Policy | Revue internationale de politique de développement [Online], 16 | 2023, Online since 12 June 2023, connection on 28 September 2023. URL:; DOI:

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About the authors

Emille Boulot

Emille Boulot is a Lionel Murphy Foundation Scholar and a Leadership for the Ecozoic fellow and is pursuing a PhD at McGill University. She is also a lecturer in the Faculty of Law of the University of Tasmania.

Ben Collins

Ben Collins is a postdoctoral research fellow at the School of Public Policy and Global Affairs at the University of British Columbia. He is also an Economics for the Anthropocene (E4A) graduate, and a PhD graduate at McGill University.

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