April 15, 2023 Mary Perry…

April 15, 2023

Mary Perry
Director, Strategic Services Branch
Mines and Minerals Division
Ministry of Mines
933 Ramsey Lake Road
Sudbury, ON P3E 6B5

Dear Ms. Perry:

Re: Changes to the Mining Act proposed through Bill 71 – Building More Mines Act, 2023

Thank you for the opportunity to comment on proposed changes to Ontario’s Mining Act, as proposed through Bill 71. This bill proposes changes to the management structure and oversight routinely applied by Ontario on mine developments, mine construction, and operating mines. Since the proposal is to reduce requirements by proponents, it has a reasonable chance to result in lower compliance rates for rules and requirements, and thereby a higher risk for short-term and long-term damage to natural resources and habitats for important wildlife, and contribute additional disturbance to surface waters as well as Species At Risk (SAR). It is ironic that this submission is occurring just days before Earth Day 2023.
In the 1950s and 60s, when pollution was killing birds, water was poisoned, and rivers would catch on fire, Rachel Carson was motivated to write ‘Silent Spring’ in 1962. Such events involving the initial disconnect followed by the connection between human-induced environmental disturbance and tangible damage to natural resources (such as water), wildlife (such as cracked bird eggs), and wildlife harvested for human consumption (fish kills and flesh too contaminated to consume), took about two decades for government to respond with the USA’s Clean Water Act in 1972, and the binational Great Lakes Water Quality Agreement in 1972. Then, similar comprehensive responses were not codified in Ontario until 1990, under the Environmental Protection Act, the Lakes and Rivers Improvement Act, and the Mining Act. It is possible that Ontario did not bring forward explicit legislation to protect the environment using instruments such as the Mining Act until 1990, as other federal legislation was in place that provided general protections, viz. Fisheries Act. Inasmuch that the Fisheries Act acts to provide protections from environmental disturbance, framed on protecting fish and fish habitat, Ontario did deem it necessary to add further protections for the environment under the Mining Act. At this time, it is my view that the proposed changes will lower the veracity of the Mining Act to encourage the avoidance of environmental disturbance as well as lower the opportunities for mitigation of this disturbance. It was not an accident that the Environmental Protection Act, the Lakes and Rivers Improvement Act, and Mining Act were all established simultaneously in 1990. All of this legislation has the common goal to protect ecosystems, landscapes, and humans.
Examples exist in Canada where lack of government oversight at mines was followed by large-scale problems and massive damages. For example, one of the worst mining events in Canadian history happened at the Mount Polley mine in B.C. with the tailings dam failure during August 2014. It is now common knowledge, due to numerous media reports, that this dam failure was a consequence of poor tailings dam work, carried out under the supervision of so-called ‘qualified’ geotechnical engineers that did not follow standard or even appropriate engineering practices. This terrible event resulted in British Columbia to improve its oversight of engineers, mine waste sites, particularly tailings ponds and other facilities. This overall led to changes in legislation as well as revisions to codes of professional practice for engineers concerning dam safety. Without hesitation, as a taxpayer in Ontario, I do not wish to witness a catastrophic mine problem leading to loss of life, environmental damage, or other problems that cannot be quantified with a dollar value.
Within the proposed changes for the Ontario Mining Act, a key problem is the apparent reduction for a requirement for "qualified persons" to carry out routine evaluative examinations in the Mine Ministry. This change for Staff at the Mine Ministry is likely to have multi-faceted consequences. First, it is likely to decrease the governmental capacity to provide much needed ongoing technical regulatory oversight as well as lower the capacity to make technical refinements and improvements to existing rules/regulations. Further, it will also likely diminish the opportunity to develop new practices and procedures by Ontario for use in field settings. It is also probable that the lack of ‘qualified persons’ at the Mine Ministry will reduce interactions with other Provincial departments such as the Ministry of Labour, Ministry of Health, and Ministry of Environment, Climate Change, and Parks to name but three of many. Each of these three ministries have roles with enforcing various environmental and health and safety aspects of mine development and operations. Hence changes to the Mining Act will likely spread weakness across multiple government agencies. When rules for activities are weakened due to lack of top-down oversight by Ontario staff trained and thereby qualified to work on mines but not motivated by mine profits, the work of other ministries for health, safety, and working conditions can only be expected to be also diminished. If anything, the Ontario government should both ensure there is an adequate level of appropriately trained technical expertise in-house at the Ministry of Northern Development, Mines, Natural Resources and Forestry. It is likely only feasible to achieve human safety as well as reasonable environmental management when government oversight is delivered, in an independent manner, to profit-driven companies.
The approach of allowing profit-driven companies to supervise their own activities in the past was also attempted in Ontario during the 1990s. At that time, the Ontario government removed the need for Ontario staff to provide oversight on varied industries. A tragic example of this reduction in Ontario oversight was on full display, when operators of transport trucks hauling trailers were provided less scrutiny through the reduction in truck inspectors and frequency of required truck inspections, starting around 1996. At the time, the Ontario government indicated the owners of these transport trucks had a vested interest to keep the vehicles road worthy and safe. Otherwise, these owners would experience personal loss if the transport truck was not operating. So, the total number of Ontario truck inspectors was reduced along with the frequency of required truck inspections in 1996. In short order after this simplification of government oversight was applied to the trucking industry, the phenomenon of flying truck tires emerged on Ontario roadways. After this phenomenon was documented, the Ontario Ministry of Transport (MTO) started to track flying truck tires in 1997. According to MTO, a total of 215 flying truck tires were officially reported in 1997 whereas the real number was likely 3x or more this number. Many truck tires were linked to vehicle accidents with catastrophic human injuries and loss of life. After this problem was identified, truck inspectors were re-hired and more frequent truck inspections were brough back to the roadways. According to MTO public records, the increased work of inspectors and inspections reduced the incidence of flying truck tires quickly, and by 2010 was linked to only 47 incidents despite exponentially more trucks on the roadways. How many people were injured and died in Ontario from flying truck tires caused by a reduction in government oversight on truck operations and maintenance??? We will never know the true number of harmed people that followed reduced government oversight of owner-operated transport trucks. Additional examples exist from the 1990s where government oversight was reduced for construction sites, elevator operations, drinking water, and still others where tragedy after tragedy brought government inspectors and government inspections back to complete oversight requirements evident before these 1990s reductions. In a few years, I don’t want to read a headline that talks about increased injuries and loss of human life along with greater environmental damage at mines due to reduced government oversight. And how these new problems at mines will be resolved with a return to the mine oversight strategies evident until 2022 before reduced oversight was implemented.
For the proposed changes, it seems they will allow the Minister of Mines to make regulatory decisions lacking complete and detailed technical input from qualified government staff, or external experts hired by government, through the designated Director of Mine Rehabilitation and/or Director of Exploration. Such an approach will reduce or essentially eliminate the parliamentary principle of elected political representatives being fully and frankly informed by public servants in government whom are not motivated by private profits or other personal or political gain but are often the individuals most familiar with the detailed technical aspects of regulatory issues and applications. In addition, it increases the likelihood of political considerations derailing good regulatory practices and outcomes. This new role for an elected person, whom is likely not qualified to make such decisions, seems like a risky change, and seems to also be possibly vulnerable to external influence or local influences that could benefit individuals locally or the Minister’s constituents. It definitely does not seem like impartial decisions will arise from this process! It seems this proposed change in the role for increased decision-making for the Minister will be rife with conflict of interest situations.
From the available information regarding proposed changes to the Mining Act, a number of other comments are justified herein. First, the proposed Mining Act changes are forecast to cause: "…no anticipated environmental impacts as a result of these proposed changes to the Mining Act." My professional experience with mine problems during the last 25+ years involving air, soil, water, waste products, harm to wildlife and fish, and possible harm to SAR stemming from mines suggest that the proposed changes are unlikely to adequately address current problems evident across complex landscapes in Ontario. Further explicit comments now follow.

1. Definition of "rehabilitate"
Currently, the Mining Act definition of ‘rehabilitate’ requires that “rehabilitate” mine sites be restored to their former use or condition or be made suitable for a use that the ministry sees appropriate or fits the local landscape. The proposed changes would alter the definition of ‘rehabilitate’ in ways that support the Minister’s ability to allow alternate use(s) or condition(s) allowing any feature to remain on-site after the mine closes. This allowance to retain features on a site allows greater flexibility and certainty to industry by allowing alternate post-closure land uses and rehabilitation measures. It sure does seem like this is a change to allow for incomplete clean up of disturbed sites, pending the approval of the Minister. This is not good for Ontario in the long term.

2. Conditional Filing
The proposed amendment could lead to the Minister preparing a Filing order, on request from a proponent, that allows the deferral of at least one component from a closure plan or closure plan amendment, pending the terms and conditions of the Minister. Such would be designated “conditional filing order”. This whole scenario again seems like a simple way to preclude proponents from full clean up of disturbed mine sites, as defined in the binding terms of a closure plan filed for a mine. It also seems like an excellent way to avoid spending funds on clean up as defined by the Financial Assurance for a mine. What mine would not want to avoid spending funds on clean up, if it just requires carte blanche approval by the friendly Minister???
A related topic is the Minister’s new roles would prescribe requirement for a mine that fits ideal scenarios rather than other timelines on a site-specific basis. It seems the goal herein is to prevent slow downs or delays of mining projects where technical information is lacking or studies are incomplete. This commentary implies that key aspects can reasonably be deferred or avoided totally without compromising the integrity of the closure plan. This again seems like an ideal strategy for a proponent to save money by not following through on all prescribed elements, studies, or other measures codified in a closure plan. Again, what mine would not want to avoid spending funds on studies or expensive treatment technology for water, if it just requires carte blanche approval by the friendly Minister???

3. Amend the Recovery of Minerals Framework
For this matter, it is understood that “Recovery permits” are permits to recover minerals or mineral-bearing substances from tailings and other mine wastes. The legislative framework for recovery permits was created through previous amendments to the Mining Act, but these amendments have not been applied yet in Ontario.
For the Mining Act, use of recovery permits requires that the condition of lands subject to a mineral permit be improved seems like a reasonable consideration and amendment. Such is true only if suitable standards are achieved to protect human health and environmental settings and avoid transport of contaminants away from areas where recovery activities are being completed. This also applies to areas that will also be remediated during this process.

4. Adjust when Notices of Material Change for Deemed Amendments
Currently, proponents may not undertake activities that are not consistent with their filed closure plan or approved closure plan amendment.
Within the Mining Act, the tenets currently identify circumstances where Notices of Material Change (NMCs) are required, including where alterations to the undertaking are proposed. If such proposals of NMCs are implemented, it implies they would also require an amendment to the closure plan for the mine.
This proposed change would eliminate the need for a NMCs for small-scale activities but also allow certain administrative changes (e.g., such as the terms of Financial Assurance) to be made to closure plans without requiring a closure plan amendment (i.e., deemed amendments). It seems inappropriate to allow mines to change the terms of instruments such as Financial Assurance without a formal closure plan amendment. If this change is allowed to proceed, it seems highly likely that all mines will move to lower the stated commitments in their respective Financial Assurance in the closure plan.

5. Decision-making Authority within the Mining Act
At this time, the Minister of Mines does not have statutory authority to make select decisions, as defined by Part VII of the Mining Act. This limit in authority includes mine rehabilitation (e.g., details within closure plans) or decisions related to early exploration activities. It appears this limitation in authority ensures no bias in the approval of mine development activities, to benefit proponents etc. The limited role implies the Minister will be impartial, as they cannot modify selected elements of the closure plan.
Such decision-making authorities are currently vested in the Director of Mine Rehabilitation and Director of Exploration respectively. Hence, the Director of Mine Rehabilitation and Director of Exploration are ministry employees, appointed to these positions by the Minister. These Directors are public servants not motivated or influenced by the same considerations as those shaping by profit-driven companies. Thus, the proposed amendments including removing the role of the two Directors seems highly problematic and undesirable from multiple levels. Key decisions would then be made by the Minister, and they could be considered as possibly biased given the political influences and likely lack of technical training for the Minister. Hence, the decision making would shift from seasoned professionals (e.g., Directors) to a political person whom lacks technical training. I am strongly opposed to this change!

6. Framework for certifications
In Ontario, all closure plans are certified by a suite of qualified persons according to discipline and leaders of the private company acting as the proponent.
The proposed amendment to the Mining Act would modify this requirement for qualified persons groundwork for anticipated regulatory amendments that would strengthen the qualified persons roles in this process and weaken the oversight role of government officials. Looking at this from a higher level, it identifies a process that would essentially eliminate the need for a ministry technical review of a closure plan, as they would be fully certified by qualified person. It is probable that qualified persons may not select the most robust approaches for varied activities defined in the mine closure plan and would rather identify cost-effective solutions for all topics, at the behest of the proponents. That is the qualified person is hired by the proponent, and the proponent can be expected to request methods, materials, and other considerations to be the cheapest, fastest, and simplest to use. By extension, the qualified person will recommend the cheapest, fastest, and simplest methods and materials for use in the closure plan in place of best practices or current technologies that may benefit human health or environmental management. This proposed approach appears to represent identical thinking as the approach used temporarily with owners of transport trucks whereby they could be trusted to complete satisfactory maintenance on their personal investments in a routine and safe manner. It seems probable the designation of significant responsibility in qualified persons for mines and reduction of responsibilities for oversight with trained government staff will result in a comparable outcome akin to the flying truck tires that were common Ontario roads for an extended period of time after the role of truck inspectors and frequency of truck inspections was reduced. How many failed closure plans will be needed before the mine staff are brought back to the Ontario government??? A key problem with this scenario is that the problems with deficient closure plans will not be evident for many years, likely decades, or longer. And when the problems are found, they will have likely contaminated large areas, likely leading to massive environmental damage and costly future clean ups. In the case of the flying truck tires, the problems became evident on the highways within about two years of the reduction in government oversight. In contrast, problems with closure plan effectiveness will not be evident on the landscape for decades, and will then be difficult to remedy, as such will likely exist in remote places. It truly represents a recipe for a large-scale disaster across a wide geographic area compared with trucks with poor wheels only on roads.
From many angles, this proposal also represents an avoidance of government's responsibility for regulatory policy and makes sure policies are carried out with the objectives of those policies as well as other Government policies and regulations. In this matter, it really seems like no responsibility has been explained by Ontario about how this process acts to define how the nongovernmental "qualified persons" will carry out legally required Aboriginal Consultation. In addition, where there are differing views, how with these differences be resolved??? It really does seem that Ontario will have to re-engage in stakeholder engagement in all cases where sensitive environmental and human considerations exist viz. at all or nearly all mine sites.
This view on responsibilities also leads to other concerns. It seems in practical terms, the proposed changes for the roles of independent qualified persons could possibly prolong closure plan finalization, in direct contradiction to the objective of the proposed revisions. Further, it seems that qualified people may initially be willing to certify closure plans but when these plans are regarded in the near term as inappropriate and harming humans or environment and by extension their reputations, may not want to certify additional future closure plans. Alternatively, these qualified persons may also try to avoid responsibility for future problems, as the proposed changes to the Mining Act appear to hold zero measures for professional accountability or review of performance. I see no evidence of enforcement of qualified persons to do good quality work for the closure plan. At this time, reduced oversight appears to be the perfect path to follow for the preparation of incomplete or unsatisfactory closure plans prepared by individuals whom have been paid, and then move on to the next file with no responsibility for the plan automatically deemed appropriate. This scenario of proposed changes to the Mining Act involving increased responsibility for qualified persons with little oversight from Ontario appears to represent an ideal scenario to do work and have no accountability for future unexpected outcomes. In general, such a strategy seems like an approach that is exactly the opposite for what is required to achieve efficient and impactful work for closure plans, for cost savings and timely completion of the plans.

7. Financial Assurance
As always, each closure plan or amendment, requires proponents to provide a valid Financial Assurance amounting to the estimated costs of the reclamation measures described in the closure plan. This process usually involves confirming the financial cost estimates before any disturbance occurs on the landscape, particularly in advance of full mine site activities. Such a strategy allows Ontario to have access to money to fund work to reclaim land if the mine fails or closes for other reasons. The strategy used currently was developed in response to the propensity of mine operators to walk away from sites without proper reclamation etc. in the past, leading to massive environmental damages and major costs to the Ontario taxpayer.
For the proposed amendment to the Mining Act relative to the Financial Assurance, it will allow the practice of a phased or step-wise implementation of the Financial Assurance, to match activities at a mine and to be in-step with inclusion of project construction, operations, expansion, and closure phases. Hence, completion of new aspects would trigger additional Financial Assurance as well as changes in reclamation activities.

From a number of views, this modification seems reasonable. However, the actual required Financial Assurance needs to be appropriate to the step-wise increase in liability at a mine. A qualified person needs to fully represent actual liabilities and ensure these facets correspond appropriately with the Financial Assurance. If the qualified person is not preparing appropriate estimates of liability, due to the scenario described earlier, possibly caused by little oversight from Ontario, the scenario of under-estimated Financial Assurance would occur. Again, a strong degree of responsibility needs to be placed on the qualified person to generate realistic forecasts for Financial Assurance, and ensure accountability for these estimates. It is imperative that Financial Assurance estimates are robust and protect Ontario from future liabilities.
In summary, the Government's stated view of the proposed Mining Act can be expected to lead to: " no anticipated environmental impacts as a result of these proposed changes to the Mining Act." Due to the noted possible consequences of the changes to the oversight and supervision of staff working for profit-driven mines, it seems most are a recipe for problems in the short term and long term. Key problems with the proposed changes in the roles and responsibilities of elected persons where they could supersede the views of technical professionals. It is obvious that non-technical politically-motivated individuals should not be expected to make decisions on matters that could harm human health, the environment, or SAR and these decisions should come from well-qualified, independent professionals. Another key problem is the delegation of responsibilities to qualified persons with the reduction of oversight by government staff. It seems on many levels that the qualified persons working for profit-driven mines will be motivated to make the cheapest, simplest, and quickest choices for activities and defer best practices or state-of-the-art options, as a cost-savings measure for their clients. In addition, the proposed framework also implies this process will include no opportunity for accountability of qualified persons regarding the accuracy, effectiveness, and suitability of their decisions and recommendations over the short-term or long-term. If qualified persons are not held to account for poor decisions, they may be motivated to continue to make poor decisions due to fidelity to their clients. Further, these qualified persons may not ever be deemed responsible for these poor choices or held to account, as they may only become apparent 20 or more years in the future. Hence, many many facets of the proposed changes to the Mining Act seem to only benefit the profit-driven qualified persons and their profit-driven mine clients. If these changes are implemented to the Mining Act, they seem akin to the flying truck tire fiasco of the 1990s except in slow motion.
Only time will truly tell the possible impact(s) where reduced government oversight is applied in the mine sector. However, a very probable impact is higher profits for mines, more frequent environmental and human damages, and more profits for qualified persons to facilitate all aspects of this process. That is, the proposed changes to the Mining Act will allow qualified persons to advocate for low-cast and quick solutions in place of expensive and state-of-the art. Then after these recommendations affect environmental and human endpoints, they will again profit by identifying ways to clean up these problems, with no accountability they were the cause in the past. That is, the qualified persons will always claim scientific uncertainty was the primary cause for the unexpected disturbances to environmental and human endpoints and failures. No structure exists to place legal liability and responsibilities on qualified persons.

Closure

It is prudent to identify the foregoing comments on proposed changes to the Mining Act have been prepared by a person working in the environment field for 25+ years. This identification of such commentary reflects my direct experiences with mineral developments, mines, and mine closure across Ontario and Canada. These mine phases involving early exploration, advanced exploration, mine development, proposed mine review, mine operations, mine closure phases as well as for failed locations in care and maintenance all require careful government oversight of profit-driven companies and their private consultants. Further, I have also worked on some of the most complicated mines in Canada concerned with uranium extraction and milling, and was involved with the clean-up of contaminated uranium mine sites; these uranium settings despite government oversight were still a terrible mess when we cleaned them up at a huge cost. For each noted mine phase and mine clean up, a modified Mining Act, as currently proposed for Ontario seems highly likely to allow profit-driven mines always always always select the cheapest and fastest choices for environmental management. Then the profit-driven qualified persons usually kowtow to these requests, and write the corresponding technical documents framed within a statement of limitations for liability and fiduciary responsibilities. Such selection of cheap options by mines and their qualified persons possibly leading to future costly problems sounds like a time bomb for the Ontario taxpayer. Thus, I do not take the proposed changes lightly, as they are likely to portend unexpected and undesired consequences to environmental and human endpoints, including financial costs, long after the current politicians and qualified politicians are gone from the landscape. It seems that the replacement of science-driven approaches with rhetoric-driven decisions by political appointees for mines in Ontario is an ideal recipe for disaster, akin to the flying truck tires that plagued Ontario roads for two years in the 1990s and were not restrained again until after government-driven oversight was returned. These are the reasons why I have taken some of my family time to share these viewpoints with Ontario.