On Thursday, May 12, 2011, the Québec government tabled Bill 14 amending the Mining Act (R.S.Q., c. M-13.1) (the "Act") as a follow-up to Bill 79, which died on the Order Paper at the end of the last session of the National Assembly.
The proposed name already indicates the main thrust of the Bill, tabled just a few days after the announcement of Charest government's Plan Nord. The historic name of the Act has been changed to "An Act respecting the development of mineral resources in keeping with the principles of sustainable development". According to the government, the aim of the Act is to promote exploration while placing special emphasis on the preservation of the natural environment and consultation with citizens, municipalities and Aboriginal communities.
Changes inherited from Bill 79
Despite its new name, Bill 14 is based, in many respects, on the former Bill 79, especially in regard to claims, limiting the possibility of making a payment in lieu of performing mining exploration work, reducing the area of land on which work credits can be used to renew other claims, and eliminating the possibility of using credits for exploration work done on a mining lease or mining concession to renew a claim. Like Bill 79, the new Bill 14 includes the following:
- The holder of a claim located on lands granted by the State must, within 60 days of registering the claim, inform the owner, tenant or holder of an exclusive lease to explore for surface mineral substances that the claim has been acquired;
- When the Minister of Natural Resources and Wildlife (the "Minister") grants a mining lease, the granting of such a lease to a claim holder is subject to holding public consultations and setting up a monitoring committee to ensure that the undertakings made by the holder in public consultations are carried out. Also, the rehabilitation and restoration plan — approval of which by the Minister is a condition precedent for granting a mining lease — must be made available to the public at least 30 days before consultations start. Finally, to avoid conflicts with other users of the territory, the Minister may impose additional conditions on any given mining lease;
- The certificate of release will be issued by the Minister only after the Minister has determined that (i) the work has been completed in accordance with the rehabilitation and restoration plan; and that (ii) the condition of the site affected by the mining operations does not pose any risk to the environment or to the health and safety of persons, and after receiving a positive report from the Minister of Sustainable Development, Environment and Parks, significantly increasing the requirements from the current Act;
- Concerning the right of access and expropriation under section 235 of the Act, Bill 14 states that the holder of mining rights must obtain the written consent of the owner of the land concerned or acquire real rights by mutual agreement and, failing that, may exercise the right of expropriation under certain conditions; and
- Finally, like Bill 79, the new Bill 14 modifies some of the provisions concerning fines, which are much larger in the following cases:
- Failure to perform site rehabilitation or restoration work;
- Failure to submit a rehabilitation and restoration plan to the Minister for approval before commencing mining activities;
- Failure to submit a revised rehabilitation and restoration plan to the Minister within the prescribed time and in the prescribed circumstances; and
- Failure to provide the security stipulated in the Act and Regulations (in this case, the fine is 10 per cent of the amount of security).
Although much of Bill 14 is based on Bill 79, some new provisions warrant attention. For example:
- The holder of a claim located on lands granted by the State and on the territory of a municipality, in addition to having to inform the owner, tenant or holder of an exclusive lease to explore for surface mineral substances that the claim has been acquired, must inform the municipality of the exploration work to be done at least 60 days before commencing that work;
- The notice of staking or map designated claim will now have to be accompanied by a plan of the work to be done during the year, and the holder will have to report on the plan to the Minister on each anniversary date of the claim;
- With the avowed aim of promoting exploration and penalizing holders of inactive claims, a claim holder who has not done the amount of statutory work required will, when renewing the claim, have to pay double the amount of statutory work required. Bill 79 comprised a provision providing for a payment of the equivalent of the amount of work, possibility limited to only one renewal period;
- Under Bill 14, it will no longer be possible to apply excess work on a claim to more than nine renewal periods, contrary to the previous rule that allowed excess work to be applied to any subsequent renewal without any time limit. Thus the excess work accumulated by a claim holder as of the date that Bill 14 comes into effect can only be used for a maximum of 18 years, increasing the "life" of work credits to 20 years (10 years under Bill 79);
- Work credits may be applied to adjacent claims held by the same holder provided the adjacent claims are located with a 4-km radius of the centre of claim for which the excess work was recorded (versus 4.5-km radius in the current Act and 3-km radius in Bill 79);
- Concerning the requirement to provide financial security, Bill 14 gives a lot more details regarding the terms and conditions of payment of the financial security related to site rehabilitation and restoration. Every person to whom section 232.1 of the Act applies will be required to provide security covering 100% of the anticipated costs to do the work described in the rehabilitation and restoration plan. This security must be provided before the work begins in some cases and over a period of three years in others; and
- Under section 91 of Bill 14, certain parts of the territory will be excluded from mining exploration and operations, including those within an urbanization perimeter and any area dedicated to vacationing. To do any work on these excluded claims, holders will have to obtain the consent of the local municipality concerned.
Following its passage in the National Assembly on May 14, 2011, Bill 14 will now go through the usual stages for a public bill, the first being referral to a committee for consultation, followed by passage in principle, for which the dates have not yet been set.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.