Tailings (mining waste) are a key risk issue for most mining projects, and failures can have devastating consequences. Whilst usually stored in “tailings ponds”, there have been many tragic examples of tailings facilities failure, including the recent Brumadinho tailings disaster in Brazil in 2019 with the loss of over 250 lives.

With a view to striving for “the ultimate goal of zero harm to people and the environment with zero tolerance for human fatality”, a new Global Industry Standard on Tailings Management was published in August 2020.

Keystone Law’s mining sector expert advisers Richard Temple and Sandra Bates explain what the new Global Industry Standard on Tailings Management is and why it will be relevant for mining companies.

What is the Global Industry Standard on Tailings Management (“the Standard”)?

The Standard was created following a Global Tailings Review, which was co-convened by the International Council on Mining and Metals (“ICMM”), the United Nations Environment Programme, and the Principles for Responsible Investment.

This is an important development as it sets a new comprehensive international mining industry benchmark for standards of tailings management.

The framework aims to provide a standard for safe tailings facility management whilst affording operators flexibility in how to achieve this goal. Indeed, it requires operators to “take responsibility and prioritise the safety of tailings facilities, through all phases of a facility’s lifecycle, including closure and post-closure”. It is intended to apply to existing facilities and those to be built.

Why is the Standard relevant to mining companies?

There are various reasons why the Standard will be relevant to mining companies, including that mining companies may:

  1. potentially be required to show adherence to it in relation to the provision of certain financing or investment;
  2. depending on the applicable law, be required to make specific reference to compliance with the Standard in their annual disclosure documents;
  3. benefit from adhering to the Standard for the purposes of litigation as it may be a relevant factor depending on the jurisdiction in assessing compliance with law: for example, in evaluating the conduct of the mining company in an action for negligence related to tailings or in assessing damages; and
  4. with the current global focus on ESG compliance, seek to highlight their adherence to the Standard to potentially enhance the value of the company and investor returns.

How will the new Standard be implemented?

Implementation protocols which will provide detailed guidance for certification, or assurance as applicable, and for equivalence with other standards are intended to support the Standard.

The Standard does not seek to override applicable legal and regulatory provisions, and operators are expected to conform with the requirements of the Standard not in conflict with other provisions of law.

Whilst the Standard is voluntary, it will be very interesting to follow the extent to which and how mining companies implement the Standard in existing and new projects. With over 12,000 existing tailings storage facilities worldwide, its impact could be significant. The agreement of ICMM members to implement the Standard as part of their commitment to membership bodes well for its uptake and it should help to drive best practice.

For more information about the Standard, please contact Richard Temple or Sandra Bates.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.