This consultation was open from:
September 8, 2023
to October 9, 2023
Decision summary
On April 1, 2024, O. Reg. 240/00 Advanced Exploration, Mine Development and Closure Under Part VII of the Act will be replaced with a new regulation, O Reg. 35/24, titled "Rehabilitation of Lands." This new regulation retains most of the provisions of O. Reg. 240/00, integrating amendments and aligning with the Building More Mines Act, 2023.
Decision details
In May 2023, the Building More Mines Act, 2023 was passed to ensure that Ontario has a modern and competitive regime for mineral exploration and development. The Building More Mines Act, 2023 amended the Mining Act, with certain provisions proclaimed into force in July 2023. Additional provisions and the new regulation will come into force on April 1, 2024.
The new regulation includes the majority of the existing requirements (i.e., provisions) in O. Reg. 240/00 (except the Mine Rehabilitation Code, (the “Code”) and references to the “Director of Mine Rehabilitation”, which have been replaced by the “Minister of Mines”), incorporates amendments to existing provisions, and reflects new additions that support the Building More Mines Act, 2023. It also includes transitional provisions.
O. Reg. 35/24 sets out:
- The requirements for closure plans and closure plan amendments (i.e., A comprehensive document that describes the mine site, its current and future environmental characteristics, and the measures that a proponent will undertake during the entire life of a mine to rehabilitate mine hazards on a mine site per the prescribed requirements in the regulation and the Code); and
- Incorporates-by-reference, the Mine Rehabilitation Code of Ontario, which contains the standards, procedures and requirements for mine rehabilitation in Ontario.
Changes are a result of feedback from industry, Indigenous communities and organizations. The changes include:
1. Qualified Persons: The regulation defines a qualified person as an individual who:
- is a professional engineer under the Professional Engineers Act or a member of the Association of Professional Geoscientists of Ontario, The Ontario Association of Landscape Architects or the Ontario Institute of Professional Agrologists; or
- holds a university degree in science or engineering and has at least five years of experience that is relevant to the subject matter of any technical certification that they provide.
The new regulation specifies the certifier for each Part of the Code:
- Professional Engineers and Geoscientists may certify to complying with all Part(s) of the Code.
- Professional Agrologists would be able to certify only to complying with surface water monitoring (Parts 5), metal leaching and acid rock drainage (Part 7) and revegetation (Part 9) of the Code.
- Landscape Architects would be able to certify to complying with surface water monitoring (Part 5) and revegetation (Part 9) of the Code.
- Certifications related to Parts 5 and 9 of the Code could be provided by an individual who holds a university degree in science or engineering and has at least five years of relevant experience.
2. Conditional Filing: The BMMA amended the Mining Act to enable conditional filing orders, allowing a proponent to request that the Minister of Mines (the “Minister”) approve the filing of a closure plan and/or closure plan amendment that does not contain all required items at the time of submission. The Minister would be able to accept or reject the request and impose terms and conditions, including a mandatory condition that the proponent meet the outstanding requirements in a specific time and manner. The Ministry has prescribed in regulation that proponents may submit a request for a conditional filing order to the Minister in the approved form. The form will be posted publicly and requires an itemized list of each item in their closure plan that is not included at the time of submission, including (for each item) the proposed delivery date, rationales, and anticipated environmental, health, or public safety implications or uncertainties.
Conditional filing orders will provide flexibility and prevent delays experienced by mining projects where studies or elements of a closure plan are not required for construction in the near term and can reasonably be deferred without compromising the integrity of the closure plan.
3. Phased Financial Assurance: Formalized an existing practice that allows proponents to submit financial assurance on a schedule that is aligned to construction milestones for a project The time period for proponents to provide financial assurance to the Ministry has been changed from 30 to 45 days prior to any activities in the next phase beginning. This change aligns with other time periods within the Act. This will ensure that the Ministry always holds adequate and sufficient financial assurance for each phase of the project.
4. Rehabilitation requirements: Prescribed the requirements for determinations of acceptable post-closure uses of mine sites other than the prior use or condition. Proponents would need to formally apply to the Minister requesting a different post-closure use or condition. The Minister would then consider the feasibility and timing of the requested different use or condition, the need for ongoing active management post-closure, potential risks to public health, safety, and the environment, and consultation of Indigenous communities and organizations.
This is paired with changes to the Code that clarify how requirements applicable to closure plans are changed by a post-closure state determination.
5. ONTARIO REGULATION 45/11 - GENERAL:
Class of Facilities: Moved the mechanism to exclude classes of facilities from the definition of “mine” to O. Reg. 45/11. This change also added a class of excluded facility to capture a facility which primarily processes battery mineral concentrates (e.g., facilities that refine lithium) where such facility is not located on a mine site unless that site is fully closed out as defined by the Mining Act. This change would simplify the regulatory pathway for some types of battery mineral processing facilities by allowing them to be regulated like other types of industrial facilities, rather than requiring them to have filed closure plans under the Mining Act.
For consistency with the legislative amendments made to the Mining Act that removed the decision-making role of the “Director of Mine Rehabilitation”, O. Reg. 45/11 was also amended to replace these references with the “Minister of Mines”.
6. Consequential Amendments:
To align with the changes in the Mining Act that removed the decision-making role of the Director of Mine Rehabilitation and replaced them with the “Minister of Mines”, the Ministry has made the same change in other regulations administered by other ministries, including:
• O. Reg. 242/08 “General” under the Endangered Species Act, 2007 (MECP)
• O. Reg. 349/98 “Work permit - disruptive mineral exploration activities” under the Public Lands
Act (MNRF).
7. Mine Rehabilitation Code
The new regulation moves the current Code out of O. Reg. 240/00 and relocates it to a policy document incorporated-by-reference into the new regulation and made available on a Government of Ontario website: Mine Rehabilitation Code of Ontario (gov.on.ca).
The Code is updated to provide clarity to ensure the standards, requirements, procedures, and objectives in the Code are all clear enough that a qualified person could certify that the rehabilitation measures included in a closure plan comply with each Part, or otherwise meet or exceed the objective of each Part of the Code. This strengthening of the certification structure will offset the elimination of the Ministry’s operational practice of encouraging proponents to send advanced drafts of closure plans to the Ministry for technical review. Additionally, incorporating the Code by reference in the regulation will allow the Ministry to keep pace with changes and developments in mine rehabilitation technology and best practices.
Additional updates to the Code were made to provide clarity for qualified persons who are certifying to the Code and to align with structural changes in the regulation. These additional changes include the following:
- The subjective requirement to improve the aesthetics of a site has been removed from the Objective of Part 9 of the Code. The objective focuses on stabilizing surface materials, promoting natural vegetation growth, and supporting the post-closure state of a mine;
- To align with federal regulations, cyanide testing is not required if cyanide has not and will not be used on site;
- Surface water quality requirements at the closed-out state now include water quality standards acceptable to the Ministry of the Environment, Conservation and Parks, in addition to Provincial Water Quality Objectives and background levels;
- Natural revegetation is clarified as a viable option for transportation corridors;
- Terminology changes to clarify that certificates for completed rehabilitation measures are to be delivered after-the-fact, in the course of mine rehabilitation; and
- Provided that fencing of stopes open to surface is acceptable if capping or backfilling are impracticable.
The Ministry streamlined mine infrastructure rehabilitation standards by consolidating requirements into a new Part 10 of the Code, addressing existing provisions in O. Reg. 240/00, reducing duplication, and providing clarity on requirements. The new Part 10 clarifies the circumstances in which mine infrastructure, machinery, and equipment can be left behind on mine sites after the process of closing out the mine is complete. For example, pipelines located below grade may remain in place if fully decontaminated and permanently sealed off. Notably, the Ministry clarified that demolition obligations don't apply if consistent with an approved post-closure state.
It is important to note that the O. Reg. 35/24 does not alter the Crown’s legal obligations related to its duty to consult Aboriginal communities with respect to closure plans and closure plan amendments in circumstances where Aboriginal and/or treaty rights may be adversely impacted.
Regulatory impact statement:
Many components of the proposed regulation have not changed from what was in O. Reg. 240/00 and components that have changed are intended to provide flexibility for project proponents. The changes aim to reduce administrative burden on business, clarify requirements for rehabilitation, remove duplication and introduce flexibility, all to create regulatory efficiencies.
There would be a nominal one-time cost associated with learning about the regulations. Otherwise, the impact to the regulated community is expected to be positive, as cost savings are anticipated to outweigh any new costs.
The intended outcome of these changes is to create a modern regulatory framework that encourages innovation by relying on technical expertise of qualified persons and industry professionals.
In addition, the changes are intended to drive investment in resource development in Ontario’s mining sector, which is expected to benefit northern and Indigenous communities economically by providing jobs in the mining sector and reduce red tape while maintaining public health and safety, respecting the environment and Aboriginal and treaty rights.
Effects of consultation
Additional consultation
Consultations on the proposed regulatory changes through the ERO took place from September 8, 2023 – October 9, 2023. In total, 4 comments were posted via the EBR with 22 emails received. Comments were received from the public, Indigenous organizations, advocacy groups, business, and industry. We undertook a phased approach to facilitate an open and transparent process for meaningful consultation and engagement. In addition to consulting through the Environmental Registry, we also provided direct notifications, and held webinars with:
- Indigenous communities
- Stakeholders
- Members of the public
Consideration of Comments
The Ministry considered comments received from the proposal notice (September – October 2023) in finalizing the required regulations and implementing the other changes described in the notice.
The comments ranged from supportive to concerns about perceived reduction of government oversight and consultation opportunities. In addition, comments identified a mix of concerns and support for the following themes:
- Who qualifies as qualified persons
- Conflict of interest
- Alternative rehabilitative measures
- Conditional filing and exemptions
- Alternative land use
- Amendments to the Mine Rehabilitation Code and
- Phased financial assurance.
- Qualified Persons and “Reduced Government Oversight”
Commenters raised concerns surrounding the perception of government oversight of closure planning being reduced and the idea that mining would be “deregulated” as a result. This included concerns about the expanded role of “qualified persons” for up-front closure plan certification, and potential implications to the role of Indigenous communities in the consultation processes.
Response:
The Ministry will maintain effective quality control of closure plans as it is important to the environment and public health; by providing enhanced upfront quality control through strengthened certifications. Ontario’s Mining Act provides for a self-certification system; changes will require proponents to provide a complete, certified closure plan or amendment that complies with the Mining Act and regulations. There are no changes to the existing requirement that a proponent cannot submit a closure plan or amendment before we confirm that consultation with communities has been carried out where required.
Qualified Person Framework
Commenters expressed concern about who would be considered a “qualified person”, the eligibility to be a “qualified person” and whether that framework would operate in a way that Indigenous communities could rely on to inform their assessment of potential impact on s. 35 rights. Commenters were further concerned about the perceived potential for environmental and/or health and safety risks to arise from reliance on qualified persons.
Response:
The new requirement for up-front technical certifications from qualified persons provides additional assurance. Maintaining effective quality control of closure plans is important to the environment and public health; the Ministry's intent is to enhance upfront quality control through strengthened certifications. The Ministry will continue to regulate mine safety through the Ministry’s inspection and compliance program. Mine safety and environmental protection at active mines also continue to be regulated by other ministries including MNRF and MECP under other statutes such as the Public Lands Act, (PLA), Lakes and Rivers Improvement Act (LRIA), Ontario Water Resources Act (OWRA), Environmental Protection Act (EPA) & Endangered Species Act (ESA).
The Ministry requires that certifications for most Parts of the Code will be provided by persons regulated by a professional association that can impose discipline and accountability measures. Qualified persons would be putting their professional reputation and ability to practice their profession in jeopardy by providing a false certification. Additionally, it is an offence under the Mining Act to knowingly make a false statement. We have considered and decided not to establish a registry of Qualified Persons as this is duplicative of the work done by professional regulators.
The Ministry is allowing unregulated professionals to certify only to lower-risk parts of the Code if appropriate.
Commenters expressed concerns about potential conflicts of interest:
Response:
Qualified persons are regulated by professional bodies and subject to professional ethics requirements, including issues related to objectivity and conflict of interest, imposed by their regulators. The Ministry believes regulatory bodies can regulate their members rather than the Ministry imposing conflict of interest requirements.
- Alternative Rehabilitation Measures
Commenters raised issues and considerations, generally relating to potential environmental and/or health and safety risks, regarding the proposal to allow proponents to include alternative rehabilitation measures in a closure plan if a qualified person certifies that the measures meet or exceed the relevant objectives in the Code.
Response:
The Ministry believes that the "meets or exceeds" mechanism, together with corresponding changes to the objective statements in the Code, will ensure that alternative rehabilitation measures do not pose a risk to public health and safety and the environment.
The Ministry has established clear criteria, including certifications that alternative measures align with recognized industry standards, best practices, or sound scientific principles. This will reduce the likelihood of certifying a novel technique not supported by science or engineering practice and promote environmentally responsible alternative measures.
- Conditional Filing and Exemptions
Commenters had apprehensions about “conditional filing orders” or exemption mechanisms leading to deficient closure plans, or insufficient opportunities for consultation.
Response to concerns about conditional filing:
The Ministry has prescribed that a request from proponents for conditional filing orders be made using an approved form, explaining the absence of a required component, its implications on rehabilitation measures, as well as environmental, health, or public safety considerations, and a proposed timeline for delivery of the required component. Before issuing a conditional filing order, the Minister is required to consider whether it is consistent with the purpose of the Act, which expressly recognizes the duty to consult. Required components proposed to be deferred through conditional filing would be consulted on, where decisions have the potential to adversely affect established or credibly asserted Aboriginal or treaty rights.
Response to concerns about Exemptions:
Any decision on exemptions made by the Crown will need to be consulted on if the decision has the potential to adversely affect established or credibly asserted on Aboriginal and treaty rights, which would allow for case-by-case input from an affected group.
- Alternative Future Use:
Commenters questioned the process for approving alternative future uses or conditions that deviate from the pre-mining use or condition.
Response:
The Minister will be expressly required to consider whether appropriate consultation with Indigenous communities has taken place prior to deciding on a proponent’s request for an alternative use or condition. To the extent required by the Regulation and Code, the lands will be returned to their former use or condition without an approved alternative land use.
With respect to whether the alternative land uses must be compatible with adjacent lands, the answer will be no, not always, and this is why a determination of an alternative future use is appropriate. For example, where a mine site is adjacent to an industrial premises, an industrial future use may be appropriate, but this does not mean that a site must be adjacent to an industrial premises in order for an industrial future use to be approved.
- Amendments to the Mine Rehabilitation Code
Commenters questioned and provided considerations about changes to the Code that could result in more mine features remaining on-site after a project’s conclusion, particularly in underground contexts, as well as changes related to cyanide testing and revegetation.
Response to changes regarding infrastructure:
The new Part 10 of the Code clarifies existing rules, and removes ambiguity about when buried infrastructure may remain, in line with the specified future use of the site. The current requirement to have a groundwater monitoring program that must take into consideration potential contaminants that may be present in a flooded underground mine environment remains in place.
Decommissioning underground infrastructure is recognized in other jurisdictions.
Response to Cyanide Testing:
Changes to the Code allow testing programs to exclude cyanide testing in situations where cyanide was never used on site and is not planned for future use. Historical use of cyanide would require testing.
Response to Revegetation Rules:
We maintain the view that other requirements in Part 9 of the Code capture aesthetics considerations, and the broad and flexible nature of the requirements in Part 9 are appropriate for determining site-specific revegetation. “Use of native species” and “success of natural revegetation and species present” are already mandatory considerations in Part 9 of the Code, and this will not change.
- Phased Financial Assurance
Commenters were concerned about whether phased financial assurance will increase the risk of liability for mine abandonment without full rehabilitation and closure.
Response:
The new regulation includes the requirement that the amount and timing of phased financial assurance must result in the Minister always holding adequate and sufficient financial assurance to cover rehabilitation costs for existing mine hazards. The Ministry continues to have the authority to undertake rehabilitation and recover costs from non-compliant proponents.
While no application process is required, closure plans using phased financial assurance must provide project development schedules and closure costs for each stage to inform Ministry decisions.
The regulatory amendments do not affect the Ministry’s compliance and enforcement tools. The Building More Mines Act, 2023 added an authority that allows the Minister to order the prompt payment of any outstanding financial assurance if the proponent has not complied with the phasing schedule.
Supporting materials
View materials in person
Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.
Get in touch with the office listed below to find out if materials are available.
99 Wellesley St W
B-312
Toronto,
ON
M7A 1W3
Canada
933 Ramsey Lake Rd
Willet Green Miller Ctr 2nd Flr
Sudbury,
ON
P3E 6B5
Canada
Connect with us
Contact
MiningActAmendments@ontario.ca
Original proposal
Proposal details
Building More Mines Act, 2023, (Bill 71) received Royal Assent on May 18, 2023, resulting in new statutory authorities under the Mining Act. Many of these new authorities can only be brought into force once supporting regulations have been developed and implemented.
The Ministry previously sought public comment from March 9 to April 23, 2023, on proposed approaches to aspects of the regulatory amendments:
After consideration of what was heard from all parties and developing the proposals further, the Ministry is providing additional details on the proposed regulatory amendments.
The intended outcome of these proposed regulatory changes is to create a modern regulatory framework for mineral exploration and development that is flexible, encourages innovation, decreases regulatory overlap, and relies on technical expertise of qualified persons and industry professionals. Changes are intended to drive investment and resource development in Ontario’s mining sector, which is expected to benefit northern and Indigenous communities, and reduce red tape while maintaining public health and safety, respecting the environment and Aboriginal and treaty rights.
The majority of the proposed regulatory changes would affect Ontario Regulation 240/00 – Advanced Exploration, Mine Development and Closure (the “Regulation”) under the Mining Act. This is the regulation that deals with closure plans for advanced exploration and mine development projects. It also currently contains the Mine Rehabilitation Code (the “Code”), which is a document that sets standards and procedures for mine rehabilitation in Ontario.
In addition to the proposed changes to the Regulation and Code, additional changes would be required to other affected regulations. These consequential regulatory changes are expected to be administrative in nature and are not expected to have any environmental impacts. The potentially affected regulations are described in more detail below.
Appendix A – Proposed Regulatory Amendments provides further details on the Ministry’s proposal from March 9, 2023 and is the source document the Ministry is seeking comments on. The regulatory framework remains in development as the Ministry continues to seek input on these proposed regulatory changes.
Please note, the Ministry is no longer proceeding with the concept of making amendments to the Regulation and Code to automatically allow delayed delivery of baseline studies, as had been previously proposed in the spring 2023 Environmental Registry of Ontario posting: https://ero.ontario.ca/notice/019-6750.
The Ministry anticipates the proposed regulatory amendments would lead to a clearer, more streamlined process for mining project proponents.
It is important to note that none of this streamlining would affect the Crown’s obligations to consult with Aboriginal communities whose Aboriginal and treaty rights may be adversely impacted by mining activities.
It is important to note that, while many of these proposed regulatory amendments under the Mining Act are intended to provide flexibility for project proponents, this does not mean that the rules would be less stringent. Proponents are still required to meet standards for mine rehabilitation and ensure the province has received appropriate financial assurance prior to the construction of mine features.
The Ministry anticipates that the environmental implications of the proposed changes to the Regulation should be neutral.
Eliminating Ministry technical review is offset by strengthening the certification structure, removing gaps in certified items where appropriate, and defining a “qualified person” such that it incorporates appropriate training, experience, education, and expertise (and, where a professional designation is involved, accountability through the qualified person’s regulatory requirements associated with that profession).
Allowing qualified persons to certify alternative measures, instead of requiring an exemption from a prescribed requirement, will be supported by requiring that the Closure Plan contain an itemized description of alternative measures, the nature of the variance, and the rationale for how it meets or exceeds the objective of the applicable Part of the Code, with a qualified person also certifying that it meets or exceeds the applicable objective. In addition, the ministry is proposing to strengthen the objective statements in the Code.
As a result of the Ministry’s review of the Code and the proposed changes to the definition of “rehabilitate” in the Building More Mines Act, 2023, it may be more likely that some site infrastructure remains on mine sites after the mining activity is done. However, in the proposed approach, the intent is to create a regulatory framework that allows infrastructure to remain only in circumstances where it is safe and appropriate to do so (e.g., given the nature of the site; the purpose of the Mining Act; and the ministry’s commitment to satisfy the duty to consult, where it arises). It also may be more frequent for passive revegetation to occur on some parts of a site, although the requirement for self-sustaining vegetative growth prior to becoming closed out still remains.
The environmental implications associated with the proposed exclusion of battery mineral processing facilities from the definition of “mine” is anticipated to also be neutral; the environmental impacts of the operations of these facilities are currently regulated by other ministries and agencies. These facilities are generally the same as other manufacturing facilities which are not regulated under the Mining Act, and the closure planning requirements established under the Mining Act, its regulation and Code are not necessary to achieve environmental protection goals.
Any environmental implications associated with a proposed request for a Conditional Filing Order can be mitigated through the inclusion of appropriate terms and conditions on any conditional filing order that is issued.
Regarding the proposed consequential regulatory amendments, these are expected to be administrative in nature and are not expected to have environmental impacts.
Supporting materials
View materials in person
Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.
Get in touch with the office listed below to find out if materials are available.
99 Wellesley St W
B-312
Toronto,
ON
M7A 1W3
Canada
933 Ramsey Lake Rd
Willet Green Miller Ctr 2nd Flr
Sudbury,
ON
P3E 6B5
Canada
Comment
Commenting is now closed.
This consultation was open from September 8, 2023
to October 9, 2023
Comments received
Through the registry
4By email
22By mail
0