Webber Wentzel's Mining Sector Round Up 2024

OHSA V MHSA | The legal impasse on what constitutes a mine

Jurisdictional scope of safety legislation to processing operations • The MHSA does not contain a scope clause, but intention is to apply to " mines and works ". OHSA has a clear scope clause – which includes that it is not applicable at mines. Either one or the other applies. Not both. • DMR generally apply (overly) broad scope and overreach of jurisdiction. May seem easiest option – but has risks if employer knowingly or negligently applies wrong legislation. • Ensure alignment of OHS and environmental laws – cannot be a mine for one purpose and not a mine for others. This too has significant implications. • Case law is consistent on whether an area is a mine or not. Very fact dependent and often will require a strong stance to be taken against the DMR. • NB – this is NOT about MHSA section 79 exemptions . It is about whether the area is a mine for purposes of the MHSA from the outset. • This is also not a political issue, or an issue of avoiding liability as has been alleged in court papers.

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