Canada: Draft Mining Regulations Posted For Comment

Last Updated: March 22 2012
Article by Dianne Saxe

Ontario is proposing an second set of amendments to Mining Act, 2009 regulations. One key feature of the amendments is better Aboriginal consultation, better protection of Sites of Aboriginal Cultural Significance, and more control of "early exploration", which has led to much recent conflict in Northern Ontario.

The proposals include:

Proposal for a new regulation under the Mining Act "Exploration Plans and Permits"
The purpose of this Regulation Proposal Notice is to advise the public that the province is proposing a new regulation under the Mining Act to regulate early exploration activities.

Proposal for amendments to the Claim Staking and Recording Regulation (O.Reg. 43/11) under the Mining Act
The proposed amendments to O. Reg. 43/11 are part of a new set of regulatory provisions that are being phased in to support the recent amendments to Ontario's modernized Mining Act.

Proposal for amendments to General Regulation (O.Reg.45/11) under the Mining Act
The purpose of this Regulation Proposal Notice is to advise the public that the province is proposing to amend O. Reg. 45/11 under the Mining Act for General Regulations to add criteria for Sites of Aboriginal Cultural Significances, designate the Mining Act Awareness Program for prospectors and other administrative provisions

Proposal for amendments to the Mine Development and Closure under Part VII of the Mining Act (O.Reg. 240/00)
The purpose of this Regulation Proposal Notice is to advise the public that the province is proposing to amend O. Reg. 240/00 under the Mining Act for Mine Development and Closure to clarify requirements for Aboriginal consultation provisions on Closure Plans and to implement the voluntary rehabilitation of abandoned mine hazards.

Proposal for amendments to the Assessment Regulation (O.Reg. 6/96) under the Mining Act
The purpose of this Regulation Proposal Notice is to advise the public that the province is proposing to amend O. Reg. 6/96 under the Mining Act for Assessment Regulations to add new items that are eligible for assessment work credits including Aboriginal consultations and other general provisions.

Proposal for amendments to the regulation "Proceedings Commenced by Certificate of Offence" (RRO 1990, Regulation 950) under the Provincial Offences Act
MNDM is proposing to request an amendment to the Regulation under the Provincial Offences Act to add a Schedule of short form wordings for lesser offences relating to the proposed Exploration Plans and Permits scheme.

(a) Sites of Aboriginal Cultural Significance:

The amended section 35 of the Mining Act, when proclaimed in force, refers to the withdrawal of sites that meet the criteria for sites of Aboriginal cultural significance and these same sites are referred to in subsection 51(4) of the Act, which when proclaimed in force, will provide for restrictions to be imposed on a mining claim holder's right to use the surface of the claim for exploration activities. The proposed regulation amendment will set out the criteria for sites of Aboriginal Cultural Significance.

The proposed criteria for a Site of Aboriginal Cultural Significance are:

  • Strongly associated with an Aboriginal community for social, cultural, ceremonial or sacred reasons or because of its traditional use by that community, according to Aboriginal traditions, observances, customs of beliefs,
  • Has a fixed location that can be delineated on a map, and
  • Is documented and supported by the community as having cultural significance to them.

This kind of withdrawal is intended for sites where mining claims or leases do not already exist and would prevent mining claim staking and mineral exploration on the site. The withdrawal would be a rectangular area of a minimum size of 4 hectares encompassing the site, with a maximum size of 24 hectares. An area larger than this may still be considered for withdrawal, but would follow the existing withdrawal process. A surface rights restriction would be considered where the site is located on an existing mining claim, if other means of protecting the site, such as voluntary agreement with the claim holder, or the imposition of specific terms and conditions on the exploration activities via an exploration permit, are not adequate to protect the site.

The process for processing requests and provisions for implementing withdrawals and surface rights restrictions will be set out in policy.

(b) Prospector's Awareness Program:

The new prospectors' licencing provisions in the Mining Act, when proclaimed, will require persons applying for or renewing a prospector's licence to first complete a prescribed prospector's awareness program. The Act will also provide that all existing licensees must complete the program within 2 years after the new requirement is in force, including existing permanent, or "lifetime" prospectors. Following consultations with stakeholder groups, the ministry is proposing to expanded the requirement for taking the program to include individuals in charge of early exploration projects and the regulation would designate the program as the "Mining Act Awareness Program".

The program would provide basic information on the mining sequence, staking claims, early exploration and Aboriginal consultation requirements at the various stages of the process, with an emphasis on the changes to mineral exploration due to MAM. This is not a certification process that has a pass or fail, but is educational and is intended to be an on-line process (with alternative formats, as necessary). Transition provisions would cover licence renewals that will be caught up in the change to these new rules, allowing those prospectors time to complete the program.

(c) Bulk Sample Permission (extracting mineral samples for testing)

Section 52 of the Mining Act has been amended slightly and when in force, will be accompanied by a revocation of the existing regulation that deals with bulk sample permission (O. Reg. 192/06) and revised provisions for bulk sample permission being added to the General Regulation.

The new provisions would clarify in regulation, rather than by policy, what the threshold is for requiring a bulk sample permission to extract minerals for testing. A mining claim holder has no ownership of the land or the Crown's minerals and therefore needs the Crown's permission to extract minerals from a mining claim and to deal with those minerals once removed from the ground. The bulk sample permission is the claim holder's authorization to take and deal with the Crown minerals. The activity of extracting that sample (e.g. by trenching, pitting or drilling) would be subject to the requirements of the Exploration Plans and Exploration Permits regulation.

(d) The new Exploration Plans and Permits Regulation that would apply to early exploration activities that take place before an advanced exploration stage project and closure plan is triggered.

The regulation would include requirements for notification of surface rights owners, Aboriginal consultation and rehabilitation requirements for carrying out exploration as well as rehabilitation of exploration sites when the activity is completed. The Ministry proposes to phase-in the provisions for Exploration Plans and permits and to make them mandatory within six months after the regulation is approved.

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.

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Dianne Saxe
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