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White & Case Advises Global Tailings Review on First Ever Global Industry Standard on Tailings Management

Global law firm White & Case LLP has advised the Global Tailings Review (GTR) on the first ever Global Industry Standard on Tailings Management (the Standard), established to implement robust requirements for the safer management of tailings facilities in the mining industry. 

White & Case provided pro bono services by undertaking a detailed comparative analysis of tailings-related legislation in key mining jurisdictions benchmarked against the principles of the Standard.

White & Case partner Rebecca Campbell, who led the Firm's team advising GTR and was a member of the multi-stakeholder Advisory Group of the GTR, said: "The findings of the comparative analysis demonstrate that although many of the principles in the Standard are well-reflected in the laws and regulations of some of the key mining jurisdictions, 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."

The GTR was convened in March 2019 by the United Nations Environment Programme (UNEP), Principles for Responsible Investment (PRI) and the International Council on Mining and Metals (ICMM) to establish an international standard on tailings facility management following the catastrophic tailings dam collapse at Brumadinho, Brazil on January 25, 2019. Through an independent process involving extensive research, knowledge sharing and consultation with multi-disciplinary experts, affected communities, government representatives, investors, multilateral organisations and mining industry stakeholders, a set of minimum requirements has been captured within the Standard. The Standard applies to both existing and new, to-be-built tailings facilities and covers the entire tailings facility lifecycle – from site selection, design and construction, through management and monitoring, to closure and post-closure.

The comparative analysis of tailings-related legislation undertaken by White & Case looked at the key mining jurisdictions of Australia, (Queensland), Brazil (Minas Gerais), Canada (Ontario), Chile, China, Ghana, Kazakhstan, Russia and South Africa, using a survey of issue-specific legislation in the jurisdictions to compare the extent to which each of the fifteen principles in the Standard are addressed within each country's legislative framework. A bespoke scoring system was developed by White & Case to rank the relative completeness and quality of legislation. 

"The overall results of the comparative analysis of tailings safety legislation in the jurisdictions analyzed shows how the Standard can be a catalyst for improvement in regulation of tailings facilities," said White & Case partner Oliver Wright. 

White & Case counsel Tallat Hussain said: "The analysis brings to the fore the scope and need for a consistent approach to tailings facility management, operations and safety. In particular, the gap between the most and least aligned jurisdictions draws out the need for more emphasis on catastrophic failure, accountability and engagement of communities as the starting point of tailings dams regulation."

The White & Case team that advised on the project was led by partner Rebecca Campbell and counsel Tallat Hussain (both London) and partner Oliver Wright (New York), and included partners Tim Power (Melbourne), Bingna Guo (Beijing) and Maxim Telemtayev (Nur-Sultan), local partner Matthew Burnell (Johannesburg) and associates Olga Klyzhenko (Moscow), Mark Chu (Beijing) and Chingiz Kraibekov (Nur-Sultan). Further support, also provided pro bono, came from law firms Barros & Errazuriz (Chile), Bentsi-Enchill Letsa & Ankomah (Ghana), Pinheiro Neto (Brazil) and Stikeman Elliott LLP (Canada).

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