Amendments to the Mining Act: Closure Planning

Mining involves several stages which occur in a sequence. The mining sequence covers all aspects of mining, including prospecting for ore bodies, analysis of the profit potential of a proposed mine, extraction of the desired materials and, once a mine is closed, the rehabilitation of lands used for mining.

The mining sequence is divided into the following stages that represent a certain period in the life of a mineral deposit. Proponents and/or the ministry communicate all actions and intentions with those who may be affected by mining sequence activities; consultation continues throughout the mining sequence.

The stages, ordered chronologically from earliest and following the order in which they occur, include:

1. Exploration: Proponents gather data about potential mineral deposits and acquire the rights to explore those mineral deposits.
2. Evaluation: Proponents determine which mineral deposit has the most profit potential.
3. Development: Mine or mines are constructed.
4. Production: Mine or mines are operated.
5. Closure: Rehabilitation of lands used for mining.

While the proponent’s consultation with all affected persons at the start of the mining sequence is a best practice, the Crown has a duty to consult with Aboriginal communities when considering actions or decisions which have the potential to adversely affect a community’s established or credibly asserted Aboriginal or treaty rights. These actions or decisions can occur at multiple points during the mining sequence. Ontario is committed to meeting its duty to consult whenever it arises.

This notice relates to proposed changes to the Mining Act in Bill 71, Building More Mines Act, 2023 that would improve and clarify requirements for Closure Plans.

Closure plans

Although Closure Plans relate to the closure stage of the mining sequence, the Mining Act requires proponents to submit a Closure Plan to the Ministry, and have the Ministry “file” it before the proponent can undertake activities in the development or operational stages of the sequence.

Lands with advanced exploration and mine production activities must be rehabilitated after the activities have finished (with “progressive rehabilitation” being required on an ongoing basis, during the life of a project). A Closure Plan outlines how the land will be rehabilitated and the costs associated with doing so.

Currently, a closure plan is certified by two of the proponent’s senior officers, as well as qualified persons where necessary. To develop a closure plan, proponents must prepare, among other things, technical studies that can take multiple years to complete (due to the necessity of gathering baseline data from multiple seasons). In addition, the current approach of the ministry is to conduct technical reviews of draft closure plans prior to formal submission and filing.

Financial assurance

Proponents are also required to provide the Ministry with financial assurance, which amounts to the estimated costs of the rehabilitation measures described in the closure plan and allows the province access to this money to carry out the rehabilitation work outlined in a closure plan in the event that the proponent is unable or unwilling to undertake the work itself.

Proposed changes

The proposed changes to the Closure Plan framework would:

• Lay the necessary groundwork for anticipated regulatory amendments that would strengthen qualified persons’ certifications provided with closure plans, including establishing the concept of qualified persons in the Mining Act; this would eliminate the need for a ministry technical review as they would be fully certified by qualified persons;
• Allow the Minister to issue an order, on request from a proponent, that allows the deferral of at least one of the required elements of the closure plan, which may include terms and conditions determined by the Minister. This would be called a “conditional filing order”. In all cases there would be a condition in the order to meet the prescribed requirements at a time specified by the Minister. The intent is to prevent the delay of mining projects where these studies / elements can reasonably be deferred without compromising the integrity of the closure plan.
• Eliminate the need for a Notice of Material Change for minor site alterations (non-material) and allow certain administrative changes (e.g. the form of financial assurance or change in ownership) to be made to closure clans without requiring a closure plan amendment (i.e. deemed amendments).
• Codify the practice of allowing phased Financial Assurance in the legislative framework to create a simpler and clearer mechanism for proponents to submit Financial Assurance in incremental amounts (phases) on a schedule tied to the construction of new mine features.
• Amend the definition of “rehabilitate” and the related definition of “protective measures” to support the Minister’s ability to allow an alternate use or condition or feature to remain on-site post-closure (e.g., infrastructure) and give greater flexibility and certainty to industry by allowing alternate rehabilitation measures and post-closure land uses.

The proposed changes ensure proponents meet current closure plan requirements in a manner consistent with the purpose of the Mining Act.

The proposed changes, coupled with subsequent regulatory amendments that are expected to follow, are intended to:

• Shorten timelines for opening or changing advanced exploration and mine production projects by relying on closure plan certifications from qualified persons and allowing the Minister to conditionally file closure plans.
• Lessen administrative burden for proponents by reducing the circumstances where Notices of Material Change (where changes are non-material) are required and allowing deemed amendments.
• Reduce up-front expenses for proponents by allowing Financial Assurance to align with the construction of mine features while still ensuring enough Financial Assurance is available to rehabilitate the mine site.
• Provide flexibility of rehabilitation work required for closure by allowing alternative rehabilitation measures and different options for post-closure land use.

There are no anticipated environmental impacts as a result of these proposed changes to the Mining Act.