2010 Amendments to the Mining Act

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In response to calls from stakeholders, the ECO and the public, the government agreed to review and revise the Mining Act. On October 28, 2009, Bill 173 (the Mining Amendment Act, 2009) received Royal Assent, concluding a multi-year process to bring Ontario’s Mining Act into the 21st century.

Amendments to the Mining Act made through Bill 173 include:

  • amending the Act’s purpose to encourage mining activities “in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights,” including the duty to consult;
  • giving the government the authority to pass regulations establishing a “map staking” system by which claims can be staked on a map rather than on the ground;
  • requiring prospectors to receive awareness training on amendments to the Act;
  • providing for the withdrawal of Crown mineral rights where surface rights are privately held;
  • expanding the list of lands where no claims may be staked except with permission of the Minister of Northern Development, Mines and Forestry (the “minister”);
  • requiring the filing of exploration plans for lower impact activities and requiring exploration permits for higher impact activities;
  • requiring prospectors to notify SRO property owners of claims staked on their land within 60 days;
  • incorporating consultation with Aboriginal communities in mining legislation and regulations;
  • introducing a dispute resolution process for Aboriginal-related mining issues;
  • prohibiting staking or the establishment of a new mine in the “Far North” if there is no community-based land use plan for the area, or if the land use designation is “inconsistent” with mineral exploration and development;
  • giving the government the authority to pass regulations allowing claim holders to make payments in lieu of conducting annual assessment work (e.g., bedrock trenching, exploration drilling, geotechnical surveys) to keep a claim in good standing; and
  • increasing the maximum fine and length of imprisonment that a judge can impose on a convicted contravenor for offences under the Act.

It is important to note, however, that many amendments to the Mining Act will not come into force until “a day to be named by proclamation of the Lieutenant Governor.”

Implications of the Decision

Certainty for the Mining Industry

To provide certainty of investment to shareholders and prospective financers, mining companies must be reasonably confident that staked claims will be able to proceed to lease, exploration, title and mineral extraction. The amended Mining Act maintains this certainty in a number of ways.

First, the amended Act allows prospectors to continue staking claims without first notifying SRO property owners, Aboriginal communities or other stakeholders. This should reassure most exploration companies that private knowledge about lands of mineral interest will not be shared with competitors. Second, mining companies are assured that mineral rights and tenure that existed on private property in southern Ontario prior to the date Bill 173 was passed into law will be unaffected by the withdrawal provisions in the Act. (In northern Ontario, mineral rights and tenure on private property will be unaffected by the Act’s withdrawal provisions if they existed before the relevant amendment is proclaimed.) Third, the Act attempts to pre-empt conflicts between mining companies and Aboriginal communities by requiring that exploration plans undergo appropriate Aboriginal consultation and by introducing a formal dispute resolution process for Aboriginal-related issues.

While Bill 173 increases certainty in some areas, mineral companies considering doing business in Ontario remain concerned that several important implementation details are yet to be prescribed in regulations. These include:

  • the requirements for exploration plans and permits;
  • requirements that proponents undertake Aboriginal consultation;
  • the definition of “Far North”; and
  • the specific components of community-based land use plans.

Until these regulations are passed, much uncertainty remains for industry concerning the impacts of this legislation.

Security for Surface Rights Owners

The amended Act improves the rights of land owners who hold only the surface rights to their properties. Most notably, the amended Act withdraws SRO properties in southern Ontario from prospecting, staking, sale and lease. Moreover, the amendments require proponents to notify SRO property owners of claims staked on their property and MNDMF to consider arrangements made with these land owners when issuing an exploration permit.

The Act, however, creates a double standard in that property owners in northern Ontario who do not hold the mineral rights on their property must apply to the minister to have their lands withdrawn. For these property owners, the security that their land will not be staked and possibly developed is at the discretion of the minister. Moreover, as of July 2010, the section of the Act allowing a property owner in northern Ontario to request a withdrawal had not yet been proclaimed. Because pre-existing claims are unaffected by a withdrawal order, until this provision is proclaimed SRO property owners in northern Ontario are unable to request a withdrawal and mining companies can stake on these properties without worry that their claims will be annulled. Finally, because the Act does not reunite surface and mineral rights, but simply withdraws SRO properties in southern Ontario from staking, the government could potentially reverse this withdrawal in the future and reopen these lands to staking, sale and lease.

Rights of Aboriginal Communities

With the passage of Bill 173, Ontario becomes the first jurisdiction in Canada to expressly recognize Aboriginal and treaty rights in its mining legislation. As a result of provisions in support of the new purpose, Aboriginal communities should have some control over where mining activities can occur and the imposition of any restrictions on exploration activities needed to minimize the impacts on Aboriginal communities.

There is nothing in the amended Act, however, that requires consultations with Aboriginal communities prior to staking claims on Aboriginal or treaty lands or even notification after a claim has been staked. Furthermore, Bill 173 does not require proponents to develop Impact Benefit Agreements or revenue sharing between mining companies and affected Aboriginal communities. And despite the provision requiring consistency with land use plans, the government may permit a new mine opening in the Far North if a project is in “the social and economic interests of Ontario.” Future regulations will spell out important details, including the requirements of Aboriginal consultation, details of the dispute resolution process, and how sites of “Aboriginal cultural significance” will be determined.

Environmental Protection

Provisions in the amended Act might help reduce the environmental impacts of mining activities in several ways:

  • community-based land use plans, once developed, could prevent the opening of new mines in certain ecologically or culturally significant areas of the Far North;
  • increased penalties for offences against the Act may improve compliance with the Act’s provisions;
  • the phased introduction of map staking will help reduce the relatively minor impact of ground staking; and
  • a broadening of the list of lands protected from staking will limit the lands on which mining activities can occur.

Moreover, the graduated regulatory scheme for exploration activities may potentially lessen the environmental impacts of mineral exploration. As with so many other components of the Act, the effectiveness of community-based land use plans, exploration plans and exploration permits in protecting the environment will depend on details to be spelled out by future regulations developed under the amended Act.

Increased Ministerial Discretion

The amended Act gives increased powers to the minister to manage mineral exploration and development. For example, the minister has the power to:

  • allow staking on land that is otherwise withdrawn;
  • accept/reject requests from SRO property owners in northern Ontario to have their land withdrawn from staking;
  • impose restrictions on mining claims if portions of the lands are of Aboriginal cultural significance; and
  • revoke a licence of occupation if lands are being used for other than mining purposes.

Broad discretionary powers create the opportunity for political considerations and personal values to play a role in important decisions, generating uncertainty for the mineral industry, Aboriginal communities and SRO property owners.

Map Staking

Allowing prospectors to stake claims via map staking will:

  • enable prospectors to stake land that was previously inaccessible because of remoteness or difficult terrain;
  • allow the more efficient and accurate staking of lands;
  • level the playing field where it is too expensive for prospectors with limited finances to operate; and
  • eliminate the impact of ground staking on the environment, including on Aboriginal lands and SRO properties.

Permitting map staking, however, may also reduce the local economic activity associated with conventional prospecting, including supply and food services, transportation, hospitality and equipment supply. Moreover, depending on the system developed, map staking will potentially allow highly capitalized companies to stake large tracts of land.

Public Participation & EBR Process

MNDMF undertook consultation on amendments to the Mining Act in three stages using three separate Environmental Registry proposal notices:

  1. consultation on proposed amendments to the Act regarding claim staking and mineral exploration on property where mineral rights and surface rights are held separately;
  2. consultation on a discussion paper on modernizing the Act; and
  3. consultation on Bill 173.

MNDMF received over 1,000 comments via the Environmental Registry on these proposals. In addition to public participation opportunities provided through the Registry, MNDMF also consulted over 1,000 individuals and groups in public and stakeholder meetings and 20 prospector/industry sessions, and consulted approximately 100 First Nations in 40 workshops and sessions.

Commenters on the three proposals included: members of the general public; SRO property owners; municipalities; environmental non-governmental organizations (ENGOs); conservation authorities; the prospecting industry; the mining industry; lawyer’s associations; agriculture associations; and others. Supporters and opponents of the proposed amendments were equally passionate in their convictions. Some felt that the proposed framework for regulating exploration activities and protecting the rights of Aboriginal communities and private property owners jeopardizes the future success of the mining industry. Others argued that the amendments do not go far enough to ensure environmental protection and effective municipal land use planning.

Other Information

In July 2008, the Premier announced government plans to protect at least 225,000 square kilometres of the Far North Boreal region under the Far North Land Use Planning Initiative. In June 2009, the Minister of Natural Resources tabled Bill 191, the Far North Act, 2010, in the Legislature for First Reading. On the same day, MNR posted a proposal notice on the Environmental Registry (#010-6624) soliciting comments on Bill 191. Bill 191 proposes to deliver on commitments made in the Premier’s July 2008 announcement, and “enable a formal land use planning process with the First Nations in the Far North that will result in community-based land use plans that will designate protected areas and identify areas where sustainable economic development may occur.” Bill 191 received Second Reading on June 3, 2010.

In December 2009, MNDMF posted a policy proposal notice on the Registry (#010-8656) soliciting input on eight key areas that “need to be addressed in order to develop appropriate regulations” under the amended Mining Act. The notice, which provided a generous comment period of 127 days, noted that different sections of the Mining Act will be proclaimed “once the relevant details are developed.” The ECO will review these regulations in future reports.

ECO Comment

Considering the wildly divergent views of stakeholders, the amended Mining Act strikes a reasonable balance between meeting the interests of the mining industry and private property owners. What is missing from this mix, however, is an equivalent reflection of the concerns raised by ENGOs and the public for better measures to minimize the impacts of mining activities on the environment.

While the Act includes some environmental protections related to regulating mine rehabilitation and preventing immediate and dangerous adverse effects caused by mine hazards, these types of protections are largely reactionary and may fail to address an issue until after the damage is done. To ensure that potential environmental impacts and the measures needed to mitigate them are fully considered before they occur, the ECO encourages MNDMF to require that the approval of an exploration permit include the completion of a comprehensive environmental impact assessment. Furthermore, to ensure that public concerns are fully considered, the ECO strongly encourages the government to classify exploration plans and permits as instruments under the Environmental Bill of Rights, 1993 (EBR). This would allow the public to comment on exploration plans and permits via the Environmental Registry and file applications for review and investigation.

The ECO agrees with MNDMF’s decision to expand the list of land types withdrawn from staking. However, the ministry should have included world heritage sites, conservation areas, the habitat of threatened and endangered species, and natural heritage features, such as provincially significant wetlands and woodlands, in Bill 173’s list of withdrawn lands. Moreover, the ECO believes the government missed an excellent opportunity during the review of the Mining Act to give itself the authority to cancel mining leases. Currently, MNDMF cannot withdraw a claim that proceeds to lease unless it is repealed by a judge of the Ontario Superior Court. In our 2008/2009 Annual Report, the ECO expressed frustration with MNDMF’s inability to cancel mining leases that overlapped with an ecologically important old growth forest. The ECO believes the government should have the ability to protect environmentally significant sites that conflict with mining claims.

Because many important details about exploration plans and permits are yet to be developed in future regulations, it is difficult to know what effect these measures will have on protecting the environment. Likewise, uncertainty for industry, property owners and environmental protection is created by government delays in: drafting the Far North Act; developing community-based land use plans; and proclaiming the Mining Act provision that allows SRO property owners in northern Ontario to apply to have their lands withdrawn.

Moreover, because pre-existing claims are unaffected by community-based land use plans, the government’s failure to roll out the amended Mining Act, its regulations, and the Far North Act as a comprehensive regulatory package creates loopholes that undermine the land use planning the government hopes to create. These delays could result in cases where the government realizes only after the fact that mining claims have been staked on ecologically sensitive lands, at which point it is too late to withdraw the lands. Such a situation would be similar to the headache caused by Ontario’s Living Legacy mining disentanglement that has plagued the government for years (see pages 85-89 of the Supplement to the ECO’s 2006/2007 Annual Report). This troubling scenario could have been pre-empted by heeding the ECO’s past suggestions to proactively identify lands in the Far North with significant ecological values, withdraw such lands from staking, and give the government the authority to cancel leases. To prevent the creation of more disentanglement-like situations, the ECO encourages the government to develop the Mining Act regulations and the Far North Act as promptly as possible, without sacrificing or constraining the public’s right to full and meaningful consultation.

Plans to implement a map staking system raise the troubling prospect that foreign corporations with deep pockets will be able to stake large tracts of Ontario with the “click of a mouse.” Given the seemingly inappropriate use of claim staking to secure hundreds of kilometres of land for a rail corridor (see Using Mining Claims to Plan the Far North), such a system has the potential to seriously undermine land use planning in the province. The current Minister of Northern Development, Mines and Forestry, the Honourable Michael Gravelle, has indicated that ongoing consultation and experience of other jurisdictions will guide MNDMF’s efforts to develop a map staking system that “maintains competitive access to mineral tenure for all explorationists.” The ECO urges MNDMF to also ensure that the developed system does not jeopardize effective land use planning.

MNDMF should be praised for undertaking extensive consultations during the development of Bill 173. The ECO looks forward to continued consultation and use of the Environmental Registry as the ministry develops regulations under the amended Act. The ECO is disappointed, however, that MNDMF’s proposal notice for its discussion paper on modernizing the Act failed to provide an electronic copy – or even the name – of the document the ministry was seeking comment on. Insufficient information in registry postings seriously hinders the public’s ability to comment. Furthermore, the ECO is frustrated that it took MNDMF four months to send the ECO the written comments the ministry had received on Bill 173. Such delays hamper the ECO’s ability to effectively review the ministry’s consideration of public input and meet our responsibility under the EBR to report to the Ontario Legislature.

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This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario.

Citing This Article:
Environmental Commissioner of Ontario. 2010. "Reforming the Mining Act." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 114-120.

<metadesc>Implications of the decision, public participation and the Environmental Bill of Rights process, and comments from the Environmental Commissioner of Ontario. </metadesc>