On July 18, 2012, certain regulations under the new Canadian
Environmental Assessment Act, 2012 (the "CEAA 2012")
became effective resulting in substantial streamlining of the
federal environmental review process. These regulations relate to:
(i) the scope of projects subject to the CEAA 2012, (ii) the
prescribed information required for submission, and (iii) costs
eligible for recovery from the proponent. This update provides an
overview of the application of the new regulations and the CEAA
2012 to the mining industry.
i. Regulations Designating Physical Activities
Under the previous regime, broader criteria cast a wider net,
capturing within the environmental assessment ("EA")
process projects of varying size and varying potential
environmental impact. The application of the new criteria has
resulted in the cancellation of environmental screenings for
thousands of projects.
These new regulations set out activities that result in a
project becoming a "Designated Project", being projects
that the federal government believes have a significant potential
to cause adverse environmental effects. Designated Projects will be
subject to the CEAA 2012 requirements. The activities caught under
the new regulations are commonly associated with large projects.
Small and routine projects, which were previously often subject to
a screening-type EA are no longer captured by the federal
legislation (although may still be covered under provincial
Activities relating to the mining industry that are classified
as "Designated Projects" include the construction,
operation, decommissioning or abandonment of:
a metal mine or coal mine with a production capacity of 3,000
tonnes per day or more;
a metal mill with an input capacity of 4,000 tonnes per day or
a metal mine of any capacity that is located offshore or on the
a gold mine with a production capacity of 600 tonnes per day or
a potash mine with a production capacity of 1,000,000 tonnes
per year or more;
an asbestos mine of any capacity;
the expansion of an existing metal mine, metal mill, gold mine,
coal mine or potash mine by a production capacity of 50%, so long
as the overall total is greater than the above-stated minimums;
a salt mine, underground salt mine, gypsum mine, graphite mine,
magnesite mine, limestone mine, clay mine, stone quarry, gravel pit
or sand pit at various production capacities.
ii. Prescribed Information for the Description of a
Designated Project Regulations
The CEAA 2012 requires that the proponent of a Designated
Project submit a Project Description to the Canadian Environmental
Assessment Agency (the "Agency"). Previously, submitting
a Project Description was voluntary.
Upon receipt of a proper Project Description, the Agency must
post notice of the Project Description on its website and has 45
days, including a 20-day public comment period, to determine
whether a federal EA is required. The CEAA 2012 and the new
regulations do not describe what would occur if the Agency does not
make a decision within the 45 day review period. While this gap
creates some uncertainty, the mandated timelines are welcome.
The CEAA 2012 prohibits a proponent of a Designated Project from
undertaking any action in furtherance of its project if the action
would cause an "environmental effect". The prohibition
continues until the Agency decides that an EA is not required, or,
if an EA is required, until a decision has been reached on the
As a result, we recommend that those considering a project
submit their Project Descriptions as early in the planning process
iii. Cost Recovery Regulations
The Cost Recovery Regulations allow the Agency to recover the
government's costs for EA projects that are assessed by a
review panel. The types of costs that can be recovered include:
costs that the Agency incurs for services provided by a third
costs associated with the carrying out of the responsibilities
of the Agency and the members of a review panel.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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