Proposed regulatory changes to closure plan rehabilitation requirements for advanced exploration and mine production and adding an additional class of facilities to the list of such classes that are excluded from the definition of “mine”.

Introduction 

If enacted, Bill 71, Building More Mines Act, 2023, will lay the groundwork for a more flexible and innovative approach to mine rehabilitation requirements. To give the intention of the Bill full effect and allow it to be brought into force, additional regulatory amendments are required. 

The changes discussed in this proposal all relate to closure planning for advanced exploration and mine production, and the associated rehabilitation requirements.  

The vision is a modern regulatory framework that is flexible, encourages innovation, and relies on technical expertise of qualified persons and industry professionals. In keeping with this vision, these proposed amendments would strengthen closure plans by including additional certifications, and correspondingly remove the need for ministry technical reviews.  

In addition, geopolitical forces have exposed weaknesses in global supply chains for critical minerals. Ontario has a responsibility to support the development of strong critical mineral supply chains. One of the pillars in the Critical Minerals Strategy is focused on improving Ontario’s regulatory framework. To support this commitment, the Ministry is proposing to simplify the regulatory pathway for opening some types of 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. 

The proposed regulatory changes all affect O. Reg 240/00 (the Regulation), and include: 

• creating a definition of “qualified person”; 

• incorporating additional certifications to fill existing gaps; 

• requiring that a closure plan contain certifications from one or more qualified persons, stating that the closure plan either: 

  • complies with the requirements of each applicable Part of the Code, or  

  • otherwise meets or exceeds the objective of that Part of the Code;  

• making changes involving the Code, including:  

  • making the Code a policy incorporated by reference in the Regulation, rather than a schedule to the Regulation;  

  • clarifying the “objective” sections of the Code, to support the certification described above;

  • modifying certain rehabilitation standards to improve clarity and operational function, or, where appropriate, make them more flexible; 

  • creating a new Part of the Code related to site infrastructure;  

• prescribing a process by which the Minister would determine the appropriateness of a proposed post-mining land use, in accordance with the new definition of “rehabilitate” in the Bill; 

• where appropriate, allow certain time-consuming studies to be delivered after the commencement of mine development, instead of requiring that such studies be completed and included in a closure plan before development starts; and 

• prescribing an additional class of facilities to the list of such classes that are excluded from the definition of “mine”, meaning that these facilities would not require closure plans; this would apply to facilities that are not co-located with a mine site and that process battery mineral concentrates that will not result in additional tailings being created; these facilities would be treated like any other industrial facility and regulated to the extent necessary through statutes other than the Mining Act; and 

• additional instruments are being created that may need to be prescribed under the Environmental Bill of Rights and the Ministry will need to update the associated instruments list. 

There are also proposed changes which are more administrative in nature, including, for example, broadening the types of corporate officer who can provide the non-technical certification statements required in closure plans. 

The purpose of this posting is to gather public comment on these proposals. 

 

Background 

To understand the proposed changes, it is important to understand some general principles about closure planning in the Mining Act. 

Closure plans are the documents that proponents submit to the Ministry of Mines, which detail the proponents’ plans to rehabilitate the site following advanced exploration or mine production activities.   

Rehabilitation activities must be conducted in accordance with, and to the extent required by, the requirements and standards prescribed in the regulations to the Mining Act. The applicable requirements and standards, including requirements for the form and content of closure plans, are contained in O. Reg 240/00 and the Code contained within it. 

The requirements set forth in the Code are prescriptive and, in many ways, inflexible. This can limit innovation and the ability to adapt to new technologies and site-specific circumstances.  

The prescriptive nature of the Code also, in some ways, creates challenges for proponents seeking to use innovative methods to achieve the rehabilitation objectives set out in the Code. Currently, a proponent can include an alternative rehabilitation measure to what is required by the Code, but only where the proponent obtains one of several exemptions available under the Mining Act.  

These proposed changes would create a fully proponent-driven system which relies on the technical expertise of qualified persons and industry professionals, and correspondingly removes the need for government technical reviews. Requirements already exist for qualified persons to certify most aspects of a closure plan. This proposal aims to fill possible gaps that exist by potentially adding certifications where appropriate. 

The proposed changes would remove certain processing facilities from the scope of closure planning requirements. The rapid increase in demand for electric vehicles has led to a corresponding demand for responsibly sourced critical minerals, to be used in electric vehicle batteries. Creating a domestic supply chain for these batteries will require the construction of new processing facilities in Ontario. Currently, unlike processing facilities that process other industrial materials, a battery mineral processing facility could not commence operation until it has a filed closure plan under the Mining Act.  The requirements of the Regulation and Code are not specifically designed for this type of facility. As a result, it would be more efficient and reduce duplication if these facilities continue to be regulated under other statutes, and not by the Mining Act. 

As detailed below, the proposed approach would preserve and, in some cases, strengthen the objectives of Ontario’s requirements for rehabilitation anywhere rehabilitation ought to happen, and ensure that these objectives are met. The focus of the proposed changes is to introduce efficiencies while maintaining strong standards for protection of the environment and of public health and safety and allow the Crown to continue to discharge its duty to consult, where it arises. 

 

Detailed Description of Proposals 

     Definition of Qualified Person 

As noted above, requirements already exist for qualified persons to certify most aspects of a closure plan. The changes in the Bill, taken together with the related changes in this proposal, are intended to create a framework where the Ministry would rely on certifications from qualified persons rather than the Ministry conducting its own technical review of closure plans.  

The Bill creates a definition of “qualified person” but leaves the details of that definition to regulation. The Ministry is proposing to establish the requirements for a qualified person in a way that would set out minimum standards for education, work experience, credentials and training.   

Possible elements of these requirements could include: 

• a university degree, or equivalent accreditation, in an area of geoscience, or engineering, or other specialty area relating to mineral exploration or mining; 

• relevant work experience relating to their field of practice in the mining sector ranging from 3-5 years;  

• experience relating to the subject matter of their certification 

• good standing with a professional association. 
   

Certifications 

The Code requires that numerous certifications be included in a closure plan. Some of these certifications relating to technical matters are provided by qualified professionals, such as engineers; other certifications are provided by the proponent (where the proponent is an individual) or, where the proponent is a corporation, by senior officers. 

These certifications can be described as “technical certifications” and “corporate certifications”, respectively. 

The Ministry is proposing to make changes to the structure for both types of certifications. The intention is to streamline the process to reduce administrative burden, shift the onus for review of technical compliance onto proponents and their technical consultants, and reduce gaps in the certification system.   

     Technical Certifications 

In Ontario, closure planning is intended to be a self-certification system. Although many aspects of a closure plan have associated technical certifications, there are other aspects that are not certified. At present, the only certification respecting a closure plan’s overall compliance with the Regulation and Code is the corporate certification, and the corporate officers who give that certification are not necessarily technical specialists. Under this proposal, each part of the Code reflected in the closure plan will contain certifications by a qualified person or qualified persons who are better equipped to ensure that plans are compliant with provincial standards. 

This proposal will 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. 

The current framework provides the ability for the Director of Mine Rehabilitation to exempt a proponent from complying with any standard, procedure, or requirement in the Regulation, including the Code, if the Director determines that the closure plan meets or exceeds the objective of the provision in which the standard, procedure, or requirement is set out. However, there is no clear process for seeking these exemptions, and they are discretionary. This does not provide the level of regulatory certainty or flexibility that is required, particularly for matters in the Code that involve the exercise of professional judgment.  

The current proposal provides an alternative, allowing qualified persons to conduct the analysis of whether an alternative rehabilitation approach is equivalent or better for the purposes of achieving the objective of each Part of the Code. This approach would be more efficient and would support innovation, including the adoption of new technologies where applicable.  

As a result, the proposed regulatory amendments would create a new requirement that closure plans must contain certifications from one or more qualified persons, stating that the measures contained within the closure plan either comply with the requirements of the applicable Part of the Code, or otherwise meets or exceeds the objective of that Part of the Code.  

     Corporate Certifications 

Changes are also proposed for the corporate certification. The Ministry is considering whether it should be mandatory for a chief financial officer to provide a certification (particularly given that some proponents may not have an officer with the “chief financial officer” title). The Ministry is also considering other options that would broaden the definition of “senior officer”. The goal is to provide proponents with operational flexibility and reduce existing inefficiencies in the process, while maintaining accountability requirements. 

 

Changes to the Mine Rehabilitation Code 

Currently, the Code consists of nine Parts, which include objective statements followed by specific standards or requirements that must be met through rehabilitation measures required to be included in the Closure Plan.  

In connection with the broader project to provide more flexibility for proponents, the Ministry is undertaking an overall review of the Mine Rehabilitation Code which may include updates to existing Parts or the creation of new Parts.  

     Updates and Additions to the Code 

          Objective Statements  

Given the new ability for qualified persons to certify that an alternative measure meets or exceeds the objective of the relevant Part of the Code, the objectives require additional focus to minimize ambiguity and ensure that Ontario’s intentions for rehabilitation are adequately expressed.  

Some examples the ministry is proposing include:  

1. The objective for Part 1: Protection of Mine Openings to Surface currently states: “The objective of this Part of the Code is to ensure that inadvertent access to mine openings to the surface is prevented.”  Given this is an objective for mine sites once they are closed, the Ministry is considering clarifying language to cover that ALL access to mine openings is prevented, rather than solely inadvertent access.   

2. The objective for Part 4: Tailings Dams and Other Containment Structures currently states: “The objective of this Part of the Code is to ensure the long-term physical stability of tailings dams and other containment structures”.  The Ministry is considering including the extent to which the Canadian Dam Association Dam Safety Guidelines and/or other industry standards could be incorporated into the objective. A Clear objective statement will assist qualified persons to certify whether alternative measures meet or exceed the objective of Part 4 of the Code.  

3. The objective for Part 6: Ground Water Monitoring currently states: “The objective of this Part of the Code is to identify and characterize any potential impediments to beneficial use of ground water as a result of the presence of migration of contaminants.” The Ministry is considering expanding the objective to ensure that groundwater quality would be satisfactory for beneficial uses, not simply the identification and characterization of groundwater. 

          Detailed Requirements 

Each Part of the Code contains detailed requirements or standards which need to be met in order to close out a mine. Given the new framework, the Ministry is reviewing Code sections so that all requirements are appropriate and sufficiently clear for a qualified person to certify to. For example, the ministry is proposing to update Part 4 of the Code (Tailings Dams and Other Containment Structures), which is currently more high-level and abstract compared to other elements of the Code; the appropriateness of this structure will be reviewed and, if necessary, the Part will be updated. As indicated above, clear objective statements will assist qualified persons to certify whether alternative measures meet or exceed the objective of the Part of the Code that applies. 

          New Part(s) 

Given the creation of new requirements for certifications from qualified persons about compliance with the Code on a Part-by-Part basis, the Ministry is considering whether the current structure of the Code is appropriate, or whether new Parts should be added. This is particularly relevant in light of the proposal below, to review Section 24 of the Regulation and eliminate overlap between section 24 and the Code. In order to allow for the flexibility for qualified persons to certify an alternative measure, some elements within section 24 would be removed and re-established within the Code with a stated objective and prescribed rehabilitation measures.  

For example, the Ministry is proposing a new Part of the Code related to site infrastructure, specifying an infrastructure-specific objective for rehabilitation which would seek to mitigate future hazards or liabilities such as any contamination from infrastructure that may remain and possibly interfere with the future use of the site. The new Part would then provide detailed rehabilitation measures and standards that apply by default, unless replaced by alternative measures that can be certified by a qualified person as meeting or exceeding the objective of that Part of the Code. 

     Movement of the Mine Rehabilitation Code to Policy 

Amend the Regulation to move the Code to policy and incorporate it by reference in the Regulation.  

This would help respond to changes in rehabilitation best practices and technological advances in a more timely manner. This is consistent with approaches in other jurisdictions. 

Updates to the Code would still require Ministerial approval and would be posted on the Environmental Registry for public comment and the Crown will satisfy its Duty to Consult where it arises. 

Since the Code would still be incorporated by reference, the standards set out in the Code would remain enforceable.  

 

Determining Compatibility with Adjacent Land or Alternative Future Uses 

In the Mining Act as currently drafted, the term “rehabilitate” means restoring a site to its former use or condition, or otherwise making the site suitable for a use that the Director of Mine Rehabilitation sees fit. However, there is no clear process for obtaining the Director’s approval for this alternative use; many proponents are uncertain of how to navigate this mechanism. 

If the Bill is enacted, the definition of “rehabilitate” would be amended to fix this problem. The new definition of “rehabilitate” would involve restoring the lands to their former use or condition to the extent required in regulations, or to a condition that is: (i) compatible with the use of adjacent land; or (ii) suitable for an alternative future use of the site, in each case as determined by the Minister in accordance with the regulations.   

The ministry is proposing a process for making the above determinations in regulation.  The process could contain the following elements: 

• Proponents would request a determination using a form approved by the Minister in advance of submitting the closure plan or closure plan amendment.  

• There would be requirements for supporting documentation to inform the Minister’s decision process (including, where applicable, consultation with Indigenous communities and public comment processes), potentially including the following: 

  • details of the proposed end use/condition; 

  • current tenure and zoning for the adjacent land; and 

  • any active management required after closure, if applicable, and details of who would be performing that active management. 

 

Factors to be considered when the Minister makes a determination could include the following, which are modeled after applicable requirements for post-mining use in other jurisdictions: 

• Any hazard to public health/safety or the environment; 

• Whether the proposed use/condition is practicable/reasonable; 

• Whether the site will require active management post-closure; 

• Whether the proposed use/condition is compatible with the surrounding tenure, zoning, land use plan, etc. 

 

Stages of Closure: Section 22, 23 and 24 of the Regulation 

There are three stages of closure under the Mining Act: "temporary suspension", "inactivity" and "closed out". The Regulation currently establishes the requirements for achieving those stages of closure in Sections 22, 23 and 24. As previously noted, there are significant areas of overlap between these sections (S.24 in particular) and the Code. The intention of the proposed change is to eliminate this overlap and ensure that the requirements for achieving a state of closure in the Regulation do not conflict with, or create ambiguity regarding, the requirements set out in the Code.  This would involve removing aspects of the sections where the Code has fully codified the rehabilitation requirement for that aspect. 

In the case of Section 24, the current regulation lists out the requirements for a mine site being closed out.  The structure includes a mixture of items, some of which are already provided for in greater detail within the Code, and others which have no associated Code Part and are more general requirements such as the requirement that all petroleum products be removed from site.  Similar issues exist for sections 22 (which establishes the requirements for temporary suspension) and 23 (inactivity). There is frequent operational confusion about how the rules and standards relate to each other.  

The Ministry proposes to restructure and clarify these provisions, with a particular focus on Section 24, to improve alignment with the Code. 

 

Delayed Delivery of Baseline Studies 

Currently, proponents must prepare, among other things, technical baseline studies. Due to the necessity of gathering baseline data, these studies can take multiple seasons over multiple years to complete. Some types of surface water and groundwater characterization studies can take up to three years in the data capturing phase. Right now, closure plans cannot be submitted until these studies are done which is considered burdensome, and impactful in relation to the ability for some projects to move forward in a timely manner. 

Given the nature of this data, it is not necessary for the full baseline to be completed for the perspective of informing a closure plan, but what is needed is pre-activity sampling so that the pre-development condition is known.  

The Ministry is proposing amendments to the Regulation and Code which would allow advanced exploration and mine production to commence, if at least one year of groundwater and surface water testing and sampling has been undertaken prior to commencement, with the results reflected in the closure plan.  The full characterization would need to follow within two years of the commencement of the advanced exploration or mine production activity.   

*It is important to note that the Ministry of the Environment, Conservation and Parks will still regulate and analyze all operational water quality objectives for all sites.  

Notably, this is different from the “conditional filing” mechanism set out in the Bill. A “conditional filing” order would allow a closure plan to be submitted with certain required elements to be deferred, but only where the Minister has given approval. The proposed change above would not involve government approval or discretion and would be automatic for all proponents. 

 

Adding a Class of Facilities Exemption for Battery Mineral Concentrates 

Due to increased national and global demand for electric vehicles, there is increased demand for electric vehicle batteries.  

These batteries require component parts that are manufactured from concentrates of certain types of minerals in specialized processing facilities. Companies around the globe are considering opportunities to build these facilities, and looking for favourable jurisdictions to build them in. 

One of the pillars of Ontario’s Critical Minerals Strategy is growing domestic processing and creating resilient local supply chains. To meet market demand, Ontario will need additional critical minerals processing facilities located here.  

These facilities are typically located separate and apart from the mine sites that supply them. The Ministry expects that many of them will not be vertically integrated with mines and will have an economic life that is sustainable well beyond the life of any given mine. Viewed from a regulatory perspective, these facilities are less like mines, and more like other types of manufacturing facilities.  

As a result, the Ministry of Mines believes that the closure plan requirements in the Mining Act are not necessary for these facilities to be adequately regulated. The existing legal framework that regulates other types of manufacturing facilities is sufficient.  

The definition of a “mine” in the Mining Act is extremely broad, capturing many types of facilities that process or otherwise deal with minerals. Unless a new class is defined in regulation, the definition would apply to these facilities, meaning that they could not operate without a filed closure plan, despite the fact that the Regulation and Code are not specifically designed to regulate the impacts of such facilities.  

The Mining Act allows for “classes of plants, premises, or works” to be prescribed in regulation, and thereby excluded from the definition of “mine”. This mechanism has been used in the past where the Mining Act framework is not appropriate to apply to a given type of processing facility, even though that facility handles minerals. Other classes of plants, premises and works that are currently excluded from the definition of “mine” are: 

1. Research facilities not located on or directly related to a site. 

2. Analytical laboratories not located on or directly related to a site. 

3. Refineries of scrap jewellery and metal not located on or directly related to a site. 

4. Precious metal refineries engaged in refining only not located on or directly related to a site. 

5. Steel mills not located on or directly related to a site. 

6. Pits and quarries, the closure or rehabilitation of which is regulated by the Aggregate Resources Act.   

The Ministry is proposing to add a seventh item to this list. The item would capture facilities that meet all of the following characteristics: 

• primarily processing previously-milled battery mineral concentrates; 

• not located on a “mine” (as defined above)  

Note - a battery mineral processing facility would still require a closure plan if it were co-located with a mine, or otherwise located on lands where unrehabilitated mine features exist. 

  

The environmental implications of the proposed changes to O. Reg 240/00 should be neutral.  

The risks associated with the elimination of a ministry technical review are intended to be mitigated by the strengthening of the certification structure, the removal of gaps in certified items where appropriate, and the definition of a concept of “qualified person” that 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).  

The risks associated with allowing qualified persons to certify to alternative measures, instead of requiring an exemption from a prescribed requirement, are intended to be mitigated by the strengthening of the objective statements in the Code. 

As a result of our review of the Code and the proposed changes to the definition of “rehabilitate” in the Bill, it may be more likely that site infrastructure remains on mine sites after the mining activity is done. However, in the proposed approach, the intent is to create a regulatory approach that allows this in circumstances where it is safe and appropriate to do so, given the nature of the site, the discharge of the Duty to Consult, and the purpose of the Act. 

The environmental implications associated with the exclusion of battery mineral processing facilities from the definition of “mine” should also be neutral; the environmental impacts of the operations of these facilities are regulated by other ministries and agencies. Since these facilities are processing concentrates that have already been refined, and since (compared to mines) they would be more likely to be located in industrial areas, the Ministry’s view is that risks associated with the closure of these facilities are the same as the risks of other manufacturing facilities which are not regulated under the Mining Act, and the closure planning requirements established under the Act, Regulation and Code are not necessary to achieve environmental protection goals.  

 

The impact on regulated entities will be informed through these consultations.