Canada: Phase II Amendments To Ontario Mining Act Now In Effect

The previously announced amendments to the Ontario Mining Act (the "Act"), which came into force on November 1, 2012, will have a substantial impact on the activities of exploration stage mining companies. The Phase II amendments contemplate considerable consultation and cooperation between exploration stage mining companies and Aboriginal groups and open the door for companies to undertake voluntary rehabilitation projects without assuming liability for pre-existing environmental issues. Highlights of the amendments include:

  1. Duty to Consult. Amendments clarify that the purpose of the Act is to promote mineral exploration and development in a manner that recognizes and affirms Aboriginal and treaty rights and to facilitate ongoing engagement by industry members with Aboriginal communities. Accordingly, the rules impose a mandatory duty to conduct Aboriginal consultation in connection with most stages of early exploration, including when developing an exploration plan and when applying for an exploration permit (discussed below). The rules are also aimed at building positive relationships with other surface rights holders; therefore, proponents have a duty to notify rights holders of proposed or planned activities in these stages as well.
  2. Compulsory online education program. Effective immediately, every person holding or applying for a prospector's license, and every person classified as a "qualified supervisor" for the purposes of exploration plans and permits, is required to complete a compulsory online education program known as the Mining Act Awareness Program ("MAAP") within certain time periods.
  3. Requirements for identifying sites of Aboriginal Cultural Significance. Prior to staking, prospectors must check the Minister of Northern Development and Mines ("MNDM") online CLAIMaps application to determine whether an area has been withdrawn from staking as a result of the area being classified as a site of Aboriginal cultural significance.
  4. Amendments to the claim staking process. All applications to record a ground staked mining claim in unsurveyed territory on or after November 1, 2012 must include GPS georeferencing data.
  5. Introduction of exploration plans. Effective April 1, 2013, proponents conducting specified early exploration activities will be required to prepare and submit an exploration plan unless the activities fall below minimum thresholds. The plan must summarize the early exploration activity and timing, provide a map of the general location where proposed activity is to occur and confirm that the qualified supervisor for the plan has completed the MAAP. Once the plan is complete, the proponent must conduct Aboriginal consultation and notify surface rights holders. Exploration plans must be submitted to the MNDM but are not subject to Ministry review.
  6. Exploration permit requirements. Other early exploration activities will require an exploration permit. Additionally, a Director may require an exploration permit where the Director is of the opinion that a permit is necessary to address Aboriginal or treaty rights or where the activity is to take place on lands for which the Minister has issued notice of an intent to order surface rights restrictions. In order to apply for a permit, the proponent must notify all surface rights holders and is required to consult with Aboriginal groups. The Director is required to make a decision on whether to issue the permit, with or without specific terms and conditions, within 50 days of Aboriginal consultation (the "circulation date"). Permits are effective for a period of 3 years, and all activities under the permit must be performed in accordance with the new Provincial Standards for Early Exploration (available on the MNDM website).
  7. Amendments to bulk sampling rules. Under the new rules, samples of materials under 100 tonnes do not require permission for bulk sampling under the Act. All bulk samples greater than 1,000 tonnes require an Advanced Exploration Closure Plan under Part VII of the Act.
  8. Amendments to assessment work credit claims. Assessment work credits may be claimed for reasonably incurred expenses relating to Aboriginal consultations, the submission of GPS data on certain mining claims in unsurveyed territory and payments in lieu of actual assessment work.
  9. Amendments to rules governing closure plans. All projects initiated after November 1, 2012 will require Aboriginal consultation prior to the submission of a certified closure plan or certified closure plan amendment. Proponents submitting closure plans or amendments for advanced exploration and mine production stage projects are required to submit a Notice of Project Status (or Notice of Material Change) to the MNDM in advance of submission of a closure plan. The MNDM will review the notice and provide written direction as to which Aboriginal communities are to be consulted and whether interim consultation reports will be required. The proponent must prepare a consultation report and file it along with the certified closure plan or amendment. Financial assurance for the plan must be submitted to the Financial Assurance Coordinator
  10. Protection from liability for voluntary rehabilitation projects. The new rules shield companies and individuals who undertake voluntary rehabilitation of mine hazards not created by them from liability for pre-existing environmental issues on the site, subject to compliance with certain requirements including: completing a voluntary application form, notifying surface owners and claim holders and conducting Aboriginal consultation prior to commencing rehabilitation work.

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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