During the past 50 years, the mining industry has become increasingly aware of the need to focus on the social and environmental impact of mining activities, as well as the health and safety of the people involved in the industry.

A number of jurisdictions have adopted laws and regulations, either of general application or mining specific, regulating and establishing environmental, health and safety standards the mining industry must comply with.

A recent spate of mine fatalities, especially in China, the US and South Africa, have again thrown health and safety regulations into the spotlight, with some stakeholders asking if enough is being done to ensure the safety of those employed in the industry.

Europe

The vast European Union (EU) legislation may not be disregarded when looking at applicable regulatory safety and environmental demands on mining activities in EU member states. The EU legislation, however, does not contain a general regulation of mining as such, nor on mining safety. As there is no such thing as a common EU mining legislation, each member state specific legislation is of importance to govern mining safety standards in the EU.

In view of the above, the new mining safety legislation enacted in Finland becomes of special interest since Finland and Sweden, different from the rest of the EU, have an active mining industry. This would explain why, unlike other EU countries, mine safety is one key area regulated in the new Finnish mining act bill.

EU legislation

There is a significant amount of EU legislation devoted to occupational safety that also applies to mining, and there are a few EU directives which are mining specific. In addition, EU’s safety legislation with respect to machinery sets standards for the equipment used in the mining industry.

In other words, EU legislation provides detailed technical requirements whereas it is mostly up to the member states to set up permit systems and enforcement to fulfil the aims of the directives.

The EU has made efforts towards harmonising general occupational safety requirements, typically setting minimum requirements on safety, allowing member states to apply more stringent rules.

The occupational safety and health framework directive (89/391/EEC) sets the general principles for prevention and protection of workers against occupational accidents and diseases. These principles are specified through a series of EU directives on issues such as minimum safety and health requirements for the workplace, safety and health requirements for the use of work equipment as well as personal protective equipment at the workplace. The EU has also adopted standards on exposure of workers to risks arising from both vibration and noise.

In addition to the general occupational safety legislation, there are two specific directives regarding occupational safety in mining.

The first concerns minimum requirements for improving safety and health protection of workers in surface and underground mineral-extracting industries. The second targets minimum requirements for improving safety and health protection of workers in mineral-extracting industries through drilling.

Another type of regulation influencing both the mining industry and equipment production and importation is contained in a number of directives related to machinery safety, the machinery directive among them. Specific requirements apply to personal protection equipment, pressure equipment, electrical equipment designed for use within certain voltage limits and equipment and protective systems intended for use in potentially explosive atmospheres. Typically, the demands set by the different EU directives apply simultaneously, which increases the complexity of achieving product compliance within the EU.

Environmental protection and safety

In practice, it may be difficult to draw a line between safety and environmental legislation. Attention should therefore be paid in particular to certain legislation within the field of environmental protection and chemicals.

The directive on management of waste from extractive industries includes not only waste-management aspects but also issues relating to safety of the mining waste areas.

Furthermore, the safety aspects of use of chemicals in the mining industry are also covered through the EU chemicals legislation.

The so-called Seveso II directive contains improvements on the control of major accident hazards involving dangerous substances by means of safety management systems, emergency planning and land-use planning. This legislation aims to improve chemical safety of larger chemical storage and manufacturing and has, due to the Romanian Baia Mare mine accident, been extended to also include risks arising from storage and processing activities in mining.

Besides the site-specific regulation, the EU has recently also made significant changes to other chemicals legislation. The changes are intended to also improve occupational safety aspects. Registration, evaluation, authorisation and restriction of chemicals under the REACH regulations as well as classification, labelling and packaging under the new CLP-regulation improve the ability to assess occupational risks of chemicals, for example, through exposure scenarios as a part of the chemicals registrations to the European Chemicals Agency.

Latin America

Argentina

Mining activities are governed in Argentina by the Federal Mining Code which contains regulations regarding both environmental and safety matters.

Environmental protection regulations were also added to the Mining Code in 1995 after a constitutional amendment established, through article 41 of the Argentine Federal Constitution, that every citizen and future generations have the right to a healthy environment.

Argentina’s mining code sets the general principle applicable to all mining activities in Argentina whereby mine owners may explore and exploit their mines being only subject to the applicable security, police power, and environmental protection regulations. In many matters the mine operator has flexibility to decide how to perform works in the mine and the governmental authorities are limited to those matters involving the environment, security or health issues.

Regarding safety regulations, however, the mining code categorically states that all tasks performed in a mine must follow stringent safety standards. Mining companies must take the necessary measures to avoid any structural damage to the mine which could lead to a collapse, and must obtain prior authorisation by the corresponding mining authority if it intends to make any structural changes such as removing pillars, bridges or massifs.

In addition, the mining code contains rules to protect employees’ safety. For example, mines must be kept clean and ventilated, and all ladders, machines and any other articles destined to transit by mine workers must be comfortable and safe. If the transit and communication means are not safe enough, operations must be suspended until they are repaired.

All accidents must be reported to the mining authority in the jurisdiction where the mine is located, and the mine operator must undertake all the necessary steps in order to eliminate any potential danger. Likewise, the mining code establishes that any potential danger within the mine must be reported to the mining authority.

The mining authority is tasked to inspect the mines within its jurisdiction once a year to ensure the operations comply with the obligations set out in the mining code. Fines for lack of compliance vary between three and 300 times the annual mining fee applicable to the mine.

Argentina has also enforced a Hygiene and Security Act, with the objectives of protecting employees’ health, life and psycho-physic integrity, preventing, reducing, eliminating, or isolating health risks and encouraging a positive attitude towards prevention of work-related accidents or diseases.

The Hygiene and Security Act sets out obligations that every employer must comply with regarding hygiene conditions. These include:

• Maintaining the working place in acceptable environmental and hygiene condition;
• Keeping a health docket for each employee and updating it periodically;
• Installing equipment for air renewal;
• Eliminating, isolating or reducing sound pollution;
• Adopting the necessary measures for the safe storage of dangerous material;
• Organising the appropriate means for the immediate provision of first aid;
• Placing easily identifiable signs indicating hygiene and security measures and warning about any potential dangers; and
• Promoting training among employees regarding hygiene and security matters.

In addition to safety legislation, under the mining code, any individual or entity engaged in prospection, exploration, exploitation, development, mine construction, preparation, extraction and storage of minerals are liable for any environmental damage occurred for failure to not comply with environmental protection regulations in the mining code. The mentioned principle also applies to all activities related to the mine shutdown.

The mining industry in Argentina can pride itself on being the only sector to feature specific environmental protection regulations that have proved sufficient to ensure environmental responsibility from the different stakeholders in the mining sector. Furthermore, the mining regulations contained have also proved effective to contain potential environmental damages in those cases where accidents have occurred, minimising the environmental impact and promptly rehabilitating the affected area.

Peru

The current Peruvian regulations on mining health and safety, approved in 2001, are intended to protect human life, promote health and safety and, therefore, reflect the culture of prevention as regards incidents and accidents.

To achieve such purpose, the regulations contain provisions on surface or underground locations where exploration, development, exploitation; mechanic preparation (including crushing and grinding); classification of non-metallic minerals; concentration; leaching or metallurgical washing of extracted metallic and non-metallic material; smelting and refining occurs.

It also includes buildings, adjacent or supplementary facilities, engineering structures, storage tanks, pipes in general, generators, transport systems, use of machinery, equipment and accessories in relation to the mining activity.

The safety regulations also establish the obligations of the mining title holder with regard to health and safety, and require the operator to prepare an annual mining health and safety plan, as well as an emergency response plan, establish standards, procedures and practices for high-risk works, control risks, conduct internal and external inspections, have a security committee and a security officer and keep the competent authority informed of any incidents or accidents, and the associated commencement, resumption, suspension or cessation of activities.

Companies are also obliged to inform employees of any work-related risks, provide appropriate protection equipment and tools for employees, disclose the security policy among its workers and conduct permanent training campaigns.

To comply with Peru’s safety regulations, mine operators must ensure facilities operate within an occupational health and safety management system.

Employers must commit to:

• Respect the health and safety of employees;
• Achieve consistency between what is planned and what is performed;
• Be prone to continuous improvement;
• Improve employee self-esteem, foster teamwork, and promote cooperation among employees;
• Promote a culture of prevention,
• Encourage safe behaviour;
• Create opportunities to encourage understanding between the employer and employee;
• Guarantee the existence of feedback means in terms of occupational health and safety;
• Continuously evaluate main risks to health and safety;
• Use methods that guarantee a continuous improvement in terms of safety and health;
• Promote participation of union organisations, or workers’ representatives, in the decisions on occupational health and safety.
  
  Mining authorities in Peru, meanwhile, are required to perform regulatory, supervising and sanctioning roles.

The regulatory function mainly corresponds to the General Mining Bureau of the Ministry of Energy and Mines, while those of supervising and sanctioning nature for activities corresponding to medium- and large-scale mining companies correspond to the Supervisory Board for Investment in Energy and Mining (OSINERGMIN).

The activities of small and artisanal mining companies fall within the jurisdiction of regional governments through their bodies in charge of mining and environmental matters.

The provisions of safety regulations are, in the opinion of some people, excessively thorough, and this may distract the inspection from what is really important, such as identifying deficiencies in safety and the recommendation to be implemented for prompt correction, thus contributing to avoidable accidents, the cost of lives of which is always very high.

Despite that safety is a constant concern in the policies and regulations of the competent authority, it is not possible to state that results have had the expected success.

According to the latest information available from the Ministry of Energy and Mines and OSINERGMIN, 21 fatal mining accidents have been reported in Peru so far this year. In 2009, the authorities reported 56 fatal accidents while in 2008 they reported 64, most of which were the result of rock falls in underground activities.

The inspection of compliance with safety rules by OSINERGMIN has not proven to be very effective to the extent that the objections, recommendations and follow-up of the implementation of the corresponding actions have not reduced the rate of accidents in mining operations.

The high rate of fatal accidents, in addition to the need to adapt the mining health and safety provisions to technological advances, has promoted the need to replace the current safety regulations with new ones, which are been drafted by the relvant authorities.

Although these new regulations follow the legislative pattern of the current ones (that is regulating every activity) they are also intended to reconcile the obligations in terms of mining health and safety in the legislation of the mining sector with those established in the provisions issued by the Ministry of Labor and Employment Promotion on the same matter.

Thus, the intention is to avoid duplicating certain obligations which are often irreconcilable, such as creating the safety committee and providing notice regarding accidents.

The draft regulations, which are to be approved in the near term, focus more on two issues for the prevention of accidents.

First, the regulation focuses on the personnel selection process, in which the evaluation of the candidate will be prioritised with respect to their capacity to fulfil the instructions given or established in the legislation.

The second issue refers to a mandatory induction process for new employees intended to explain the various mining activities and the characteristics of each operation, especially that of the company hiring them.

South Africa

In 2009, the South African government introduced the Mine Health and Safety Amendment Act (Amendment Act) to amend the existing Mine Health and Safety Act (MHSA), established in 1996.

The Amendment Act has been designed inter alia to review and strengthen the enforcement of mining-related offences in South Africa. This includes simplifying the existing regulator regime that governs the issuing of fines for breaches of safety regulations as well as reinforcing penalties. The most onerous provisions contained in the Amendment Act are aimed directly at mine management, in particular, the board of directors and chief executives.

However, the act’s two most controversial amendments have not yet been put into effect.

The first of these imposes a strict form of criminal liability on mine management, including the chief executive, in circumstances where a breach of the MHSA results in a fatality, serious injury or disease.

The second onerous amendment permits the regionally-based office of the Principal Inspector of Mines (not the Chief Inspector of Mines) to block, bar or barricade a site where a safety incident has occurred in any manner deemed fit by that inspector. Noteworthy in this latter regard is that the Amendment Act does not define the term ‘site’, which could possible include the whole mine to be capable of being so barred.

It is arguable that the Department of Mineral Resources will deem such a site to be an entire mine, and it is therefore not difficult to see how mining activities in South Africa could possibly be impeded by such intended legislative change.

Criminal liability

The Amendment Act intends to impose criminal liability on both employers and chief executives.

What is particularly frightening is that it appears that ordinary legitimate defences to an accused in a criminal context are unavailable to employers and chief executives should they face prosecution in relation to a safety incident under this amendment.

The amendment is far reaching. For example, a person who issued instructions prohibiting the performance or omission of a certain act cannot rely on such instructions as sufficient proof that all reasonable steps were taken to prevent the incident.

Furthermore, the accused is also excluded from using the defence of ignorance or mistake, while the defence that the fatality, injury, illness or endangerment was caused by the performance or omission of an act falling within the scope of the authority of another employee is also available.

The exclusion of this latter defence seems to ignore the formal appointment system of delegated responsibility on mines in South Africa. In short, it is no defence for an employer or chief executive to refer to the fact that a certain responsibility fell to any other appointed person on a mine.

The effect of the amendment (which had not yet been put into effect) appears to be that employers, chief executive and mine managers will be deemed to be guilty of a criminal offence merely by the occurrence of a safety incident, unless proven otherwise.

There is certainly a strong view that such broad and strict extension of criminal liability to mine management may fall foul of the bill of rights contained in South Africa’s Constitution.

The sanctions and fines coupled to a conviction for such a criminal offence appear to be equally grave. They include withdrawing or suspending an employer’s mining permits, a fine of R3 million (US$400,000) and/or a maximum period of five years imprisonment.

Furthermore, an order relative to an employer and/or chief executive to repair any damage caused by a breach of the MHSA to the satisfaction of the Chief Inspector of Mines may also be made.

The possibility that the chief executive, employer or individual mine managers be personally responsible to repair any damage resulting from a fatality or serious injury/illness is burdensome, and it is fair to assume that the personal financial cost may be extremely high.

In this context, the newly-enacted South African Companies Act (due to become operative shortly) prevents a company from paying, directly or indirectly, any fine imposed on a director convicted of an offence in terms of any national legislation. A conviction under the Amendment Act would surely fall within the purview of the Companies Act.

The Companies Act, read together with the Amendment Act, appears to negate a mining company’s ability to insure itself and its directors against liability arising out of safety incidents.

The Amendment Act’s intended inclusion of broad and strict criminal liability accruing to chief executives, employers and mine management is unduly burdensome. It is hoped that the Department of Mineral Resources, the governmental department responsible for regulating mining in South Africa, will be alerted to the constitutional and other concerns arising from these controversial amendments.

Mining companies strive to ensure that they adhere to stringent safety requirements, and the imposition of further far-reaching draconian liability does not, it appears, present the best or only solution. Alternatively, South African mines will be made safer by strengthening current enforcement and other structures presently in place under the MHSA, rather than to extend liability further.

Conclusion

Mining has evolved through the years and so have the applicable legal frameworks of the different jurisdictions where mining activities are developed.

Among these legal developments, those related to environment, health, and safety were adopted due to growing concerns about the potential collateral effects and dangers associated to mining activities. By developing such measures, mining is becoming a safer activity, not only thanks to the legislations enacted by the governments of the different mining jurisdictions where mining activities are performed, but also to the standards self-imposed by the industry.

Continuously improving the regulatory framework, control and compliance of mining activities has been beneficial to the different stakeholders involved in the mining industry, from employees, to the local communities, to the investors and mining companies.

Finland

Finland is one of the few EU member states with an active, and growing, domestic mining industry.

Mining safety is regulated by the Mining Act of 1965 and subordinated legislation regarding mining safety enacted at a later date. Furthermore, the general legislation on occupational safety applies to mining activities.

Any safety aspects should be included in a general mine plan by the operating company, which is approved by the safety authorities. Safety relating to explosives and chemicals are regulated by chemical safety legislation, while tailings-dam safety risks are controlled through the new Dam Safety Act (enacted in 2009).

Mining safety in Finland has consistently and continuously improved. Between 1983 and 2002, mining accidents per million work hours decreased from 62.5 to 38.

The Mining Act is being revised and a proposal for a new mining act is being discussed in the national parliament.

In the new proposed mining act, health and safety issues focus on risks not covered by the general occupational safety legislation. The proposal, however, contains a shift with regard to the scope of the regulation; instead of detailed technical regulation, the proposal suggests mine safety should be ensured through a safety management system, a rescue plan and a safety organisation at the mine.

The new act also contains provisions on notices and investigations of mining accidents.

Via the proposed management system, the mine operator would have a general obligation to recognise safety risks, remove them and if that is not possible, assess the relevant risk level.

A specific mining safety permit will be needed before mine construction and production. Safety requirements set by the mining act will be assessed during the permit application process and necessary permit conditions will be included in the safety permit.

Canada

Occupational health and safety matters in Canada are governed by a combination of federal laws and the laws of the various provinces and territories. The federal laws apply to about 10% of the Canadian workforce, including employees in federal corporations as well as inter-provincial industries such as railways, air transportation, broadcasting, banking and uranium mining and processing. The principal federal law is Part II of the Canada Labour Code, which deals with occupational health and safety matters.

Other employers in Canada, including most mining operations, are governed by occupational health and safety laws developed and promulgated by the provinces and territories, the provisions of which are similar to one another. In addition to a general statute, most of the provinces have specific regulations dealing with mining operations. Over the years, there has been enhanced government scrutiny of the mining industry and increased regulation of health and safety matters, in part, due to mining incidents involving multiple worker fatalities.

One of the most recent provinces to update its mine safety regulations is Ontario which, in 2007, made significant revisions to its regulations to address training, vehicle safety, underground storage and transportation of explosives and elevators.

The Ontario Ministry of Labour worked with the mining industry to develop these amendments to the mining regulations. In particular, the Common Core Training Program for underground hard-rock mining supervisors was completed revamped and was extended to supervisors in soft-rock mines, other mines and plants (except for smelters, mills and refineries). Two revisions were made to the regulations to improve vehicle safety, include establishing a standard for use of overhead protective devices on underground equipment and improved braking systems for motor vehicles in mines and in certain surface applications.

Revisions were also made to the regulations to require that the locations of all underground explosives be indicated, and that underground vehicles or trains display and operate a flashing red light whenever explosives are being transported underground.  

Finally, new rules were enacted for vehicles carrying bulk explosives which include requirements for fire-suppression systems, designated parking locations, and addressing power washing of unused vehicles. In addition, updated standards were imposed for cages on elevators.

Similarly, the British Columbia Mine Safety Code was updated after the Sullivan mine incident in 2006, which involved four worker fatalities.

The revisions to the legislation are often referred to as the Sullivan Mine Code Amendments and include increased reporting responsibilities for managers in the event of an incident that results in a fatality or as a result of any dangerous occurrence.

The amendments also involve a clearer and more precise definition of ‘confined space’ and enhanced safe work procedures for confined spaces.

There are also additional requirements related to the prevention of respiratory hazards in mines and procedures to be followed when a mine ceases operation.

The legislation of greatest significance, in recent years, however, is the Westray Bill, which resulted from the 1992 disaster at the Westray mine in Nova Scotia, where 26 miners were killed in an underground explosion. The accident occurred despite repeated safety warnings to the mine’s owners and managers.

The Nova Scotia government spent six years investigating the incident and the factors responsible for the tragedy, and recommended changes to protect miners from such incidents. In 1998, the Royal Commission charged with investigating the incident made 74 recommendations, one of which lead to Bill C-45 (the Westray Bill).

The Westray Bill amended the Criminal Code of Canada to hold corporations, directors and others accountable for criminally negligent acts in the workplace. It was enacted because the Canadian government felt that the stigma of a criminal code conviction and record would function as a better deterrent than prosecutions under provincial health and safety legislation.

The bill requires that everyone who undertakes work or performs a task, or has the authority to direct how another person does work or performs a task is under legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task. Its provisions affect all organisations and individuals who direct the work of others anywhere in Canada, including federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organisations.  

Increased enforcement in the mining industry with respect to health and safety matters has, based on the latest statistics, improved safety performance in Canada significantly.

In particular, the lost time injury rate for Ontario’s mining sector so far this year is 0.3 per 200,000 hours worked, according to the latest statistics.

This is a 50% improvement from the mining sector lost time injury rate for the whole of 2009.

Ignacio Randle and Alejandro Massot are lawyers at Estudio Randle in Argentina; Hubert André-Dumont is a lawyer at McGuireWoods LLP in Belgium; Rosalind Cooper is a lawyer at Fasken Martineau DuMoulin LLP in Canada; Casper Herler is a lawyer at Advokatbyrå Hammarström Puhakka Partners in Finland; Xennia Forno and Emil Ruppert are lawyers at Rubio, Leguía, Normand & Asociados in Perú; and Kenneth Coster is a lawyer at Webber Wentzel in South Africa. All are members of the International Bar Association