Amendments to the Mining Act: Closure Planning

ERO number
019-6718
Notice type
Act
Act
Mining Act, R.S.O. 1990
Posted by
Ministry of Mines
Notice stage
Decision
Decision posted
Comment period
March 2, 2023 - April 16, 2023 (45 days) Closed
Last updated

This consultation was open from:
March 2, 2023
to April 16, 2023

Decision summary

The Building More Mines Act, 2023 received Royal Assent on May 18, 2023.

Decision details

Through Bill 71, Building More Mines Act, 2023, the Ministry of Mines has made amendments to the Mining Act that are intended to ensure Ontario has a modern and competitive regime for mineral exploration and development. The amendments aim to reduce administrative burden, clarify requirements for rehabilitation and create regulatory efficiencies.

The improvements align with the purpose of the Mining Act which includes encouraging prospecting, registration of mining claims and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights (including the duty to consult) and to minimize the impact of these activities on public health and safety and the environment.

The amendments in the Building More Mines Act, 2023, will:

  • 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.
  • 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 plans without requiring a closure plan amendment (, 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 phased Financial Assurance tied to a project’s construction of new mining features; and
  • 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 to give greater flexibility and certainty to industry by allowing alternate rehabilitation measures and post-closure land uses.

The relevant amendments to the Mining Act would take effect once the related regulations have been developed and filed.

Comments received

Through the registry

13

By email

0

By mail

0
View comments submitted through the registry

Effects of consultation

Consultation on the proposed changes to the closure plan framework under the Mining Act took place from March 2nd, 2023 to April 16th, 2023.

In total, 13 comments were received via the ERO.

Comments were received from the public, Indigenous organizations, business and industry associations, and other interested stakeholders.

The comments received can be grouped into the following themes:

  1. The definition of “rehabilitate”
  2. Conditional Filing
  3. Phased Financial Assurance (FA)
  4. Notices of Material Change
  5. Certifications

1.The definition of “rehabilitate”

Some commenters expressed concern over the proposed change to the definition of “rehabilitate” and the related definition of “protective measures”. Commenters spoke to potential environmental concerns and for the need for definitions to remain as they currently read in the Mining Act.

Response: Amending the definition of “rehabilitate” and the related definition of “protective measures” supports the Minister’s ability to allow an alternate use or condition or feature to remain on-site post-closure (e.g., infrastructure) and gives greater certainty, as well as flexibility to industry by allowing alternate post-closure land uses and rehabilitation measures.

2.Conditional Filing

Commenters requested the creation of a definition of “Conditional Filing Order” prior to the finalization of Bill 71 as well as the creation of compliance mechanisms for ensuring proponents follow conditional filing orders. Further, comments expressed that each aspect of closure plans be assessed separately and that the Minister of Mines not be involved in this process.

Response: Allowing Closure Plans to be conditionally filed by the Minister despite them not meeting certain requirements provides more certainty for mining proponents by allowing them to carry out mining activities, subject to acceptable terms and conditions, imposed by the Minister. The terms and conditions will require mining proponents to meet the requirements of a closure plan by a time specified by the Minister.

3.Phased Financial Assurance (FA)

Commenters were concerned about proposed changes to Financial Assurance and the proponent’s capacity to demonstrate that they have the finances to cover rehabilitation of a mine site. Further, there is concern that the public will be financially responsible for rehabilitating a site if a proponent goes bankrupt and is unable to clean up infrastructure left on site.

Response: Amending the Mining Act to update the process of providing financial assurance will allow proponents to submit financial assurance associated with their closure plan in phases to match the development/ construction schedule of the site. If the proponent fails to comply with the required phasing, the Minister has the ability to require, in the prescribed manner, that the proponent promptly provide the outstanding financial assurance.

Codifying the practice of allowing phased Financial Assurance (FA) in the legislative framework creates a simpler and clearer mechanism for proponents to submit Financial Assurance in incremental amounts (phases) based on a schedule tied to the project’s construction of new mining features. New mining features would not be constructed until the schedule and FA was provided to the ministry. This approach may result in cost-savings from avoiding project delays.

4.Notice of Material Change

Some commenters were concerned that changing the circumstances when a Notice of Material Change is required could result in a lack of proper consultation with First Nations communities. This is because the Ministry assesses Notices of Material Change to determine whether a closure plan amendment is required and in circumstances where a closure plan amendment is required, to determine whether the closure plan amendment attracts the Crown’s duty to consult. Commenters expressed the need for “minor site alterations” to be clarified and a list of non-material site alterations to be created.

Response: Bill 71 would only eliminate the notice of material change requirement for site alterations or expansions which do not have a material effect on the adequacy of the closure plan. This should reduce the frequency of notices of material change for changes which are administrative in nature and do not affect the closure plan. This change will create cost savings for proponents.

A notice of material change, and closure plan amendment will still be required for changes that would be reasonably expected to have a material effect on the adequacy of a closure plan, and consultation with First Nations will continue to occur where the Duty to Consult is triggered by closure plan amendments.

5.Certifications

Commenters were concerned about removing Ministry technical reviews and replacing them with “Qualified Persons”. They spoke to the need to define the term Qualified Person and ensuring that a conflict of interest with the proponent is avoided and that they are knowledgeable of the land on which the project they are certifying resides.

Response: Providing regulation-making authority to enable the development of a framework where the Ministry would rely on Closure Plan certifications from Qualified Persons rather than the Ministry conducting its own technical review will improve flexibility in closure planning. While the ministry will no longer be conducting technical reviews of closure plans prior to filing, the Ministry will ensure certifications are provided by qualified individuals where appropriate. Relying on Qualified Persons would provide for appropriate mine rehabilitation measures as Qualified Persons would certify that the closure plan complies with the requirements of each applicable Part of the Mining Rehabilitation Code or otherwise meets or exceeds the objective of that Part of the Mining Rehabilitation Code.

Supporting materials

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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.

Ministry of Mines, Corporate Policy Secretariat
Address

99 Wellesley St W
B-312
Toronto, ON
M7A 1W3
Canada

Office phone number
Mines and Minerals Division
Address

933 Ramsey Lake Rd
Willet Green Miller Ctr 2nd Flr
Sudbury, ON
P3E 6B5
Canada

Office phone number

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Original proposal

ERO number
019-6718
Notice type
Act
Act
Mining Act, R.S.O. 1990
Posted by
Ministry of Mines
Proposal posted

Comment period

March 2, 2023 - April 16, 2023 (45 days)

Proposal details

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.

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.

Ministry of Mines, Corporate Policy Secretariat
Address

99 Wellesley St W
B-312
Toronto, ON
M7A 1W3
Canada

Office phone number
Mines and Minerals Division
Address

933 Ramsey Lake Rd
Willet Green Miller Ctr 2nd Flr
Sudbury, ON
P3E 6B5
Canada

Office phone number

Comment

Commenting is now closed.

This consultation was open from March 2, 2023
to April 16, 2023

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