Canada: Exploration Plans And Permits, And The Duty To Consult With Aboriginal Communities

Prior to any work commencing, certain prescribed, lower-impact exploration activities require the prospector to send a notice of intent to submit an exploration plan to the MNDM and to all affected surface rights owners. Exploration plans must summarize the proposed exploration activity, where it will take place and the timing of the activity.

The following activities require the submission of an exploration plan (but do not require an exploration permit):

  • geophysical surveys requiring a generator;
  • line cutting where the width of the line is 1.5 metres or less;
  • mechanized drilling to obtain rock or mineral samples where the weight of the drill is 150 kilograms or less;
  • mechanized surface stripping where the total combined surface area stripped is less than 100 square metres within a 200-metre radius; and
  • pitting and trenching of rock where the total volume of rock is between one and three cubic metres within a 200-metre radius.

The regulations do not set out any requirements for, or restrictions on, less intensive exploration activities that fall below the thresholds set out above. For those activities that are more intensive than the thresholds set out above, an exploration permit must be approved by the MNDM. The MNDM encourages prospectors to consult with potentially affected Aboriginal communities prior to submitting an exploration plan or permit application. Once a notice of submission of exploration plan is received by the MNDM, it will provide the prospector with a list of potentially affected Aboriginal communities. If any advance consultation is undertaken by the prospector, an Aboriginal consultation report may be required to be included with the exploration plan when submitted. It is hoped that early consultation will lead to dialogue with affected parties and assist juniors to identify and address potential issues, allowing prospectors to make a more informed decision on the contents of their exploration plan or permit application. It may even allow prospectors to make a more informed decision on the overall viability of the project if significant issues do come to the fore early on.

In any event, following receipt of an exploration plan, the MNDM will notify and invite comments from affected Aboriginal communities. Affected Aboriginal communities may provide written comments to the MNDM within a 30-day window following receipt of the exploration plan from the MNDM and, in response to any such comments, the MNDM may require the prospector to undertake further consultations with the Aboriginal communities.

If no significant issues are raised by affected Aboriginal communities, the prospector can commence the exploration activities set out in the submitted exploration plan at the end of the 30-day period. If, however, significant issues are raised by Aboriginal communities, the prospector may choose to withdraw the plan while further consultation or dispute resolution procedures takes place or make adjustments to the submitted exploration plan to address the comments. In addition, the regulations provide the MNDM with the discretion to require a prospector who has submitted an exploration plan to instead go through the more onerous and uncertain exploration permit application process (even though the exploration activities to be undertaken are of the lower-impact nature), giving the MNDM more control over when, and if, the submitted exploration activities may commence. The regulations indicate that such discretion could be exercised if significant issues are raised by Aboriginal communities in response to a submitted exploration plan. The regulations governing applications for exploration permits contain similar notification and consultation requirements, as set out above, for the exploration plan process. In deciding whether to approve an application for an exploration permit, the MNDM will consider comments from Aboriginal communities and various stakeholders and has the power to order further consultations, to temporarily put a pending application on "hold" (with no specified time limit contained in the regulations) or deny a permit altogether. The MNDM will issue a decision on an application for an exploration permit within 50 days of the date the application is circulated to affected Aboriginal communities. No exploration activities can commence until the permit application has been approved. The regulations provide that the MNDM, in its sole discretion, may refer a dispute related to an application for an exploration permit to a third party for dispute resolution, and certain costs relating to which will be borne by the MNDM.

Other Key Features of the New Regulations

  • At any time, upon application by an Aboriginal community, the MNDM may withdraw from prospecting, staking, selling and leasing certain identified sites of Aboriginal cultural significance, such as traditional burial grounds or ceremonial sites less than 25 hectares in area, on land where new mineral exploration is being proposed. The new rule does not apply to land previously staked or leased; however, a restriction on the use of surface rights, pursuant to section 51 of the Act, could be imposed on land already leased or staked where an Aboriginal community seeks to recognize a site of cultural significance.
  • Prospectors are required to complete a short online education program, called the Mining Act Awareness Program (Program), prior to applying for or renewing a prospector's licence. By November 1, 2014, all individuals holding a prospector's licence, including a lifetime licence, will be required to successfully complete the Program.
  • It is now mandatory to undertake Aboriginal consultation prior to submitting a certified closure plan or certified closure plan amendment and, once a closure plan is submitted, pursuant to direction from the Director of Mine Rehabilitation.
  • Expenses associated with Aboriginal consultation and GPS claim data now qualify for assessment credit, and cash payments are allowed in lieu of assessment work in certain circumstances.
  • New early exploration requirements were set out to help minimize the impact on the environment, including the requirements to keep roadways clear and to remove all material that was brought onto the land for early exploration activity.

What Will These Changes to the Act Mean for Exploration Companies?

The new rules require early exploration companies to complete significant activities and negotiations before beginning substantive, physical exploration. While it has yet to be seen how onerous some of these requirements will be in practice, one thing is clear: the new rules mean significant time and money will be spent away from actual mineral exploration and, instead, on participating in consultations and preparing notices, reports, plans and permit applications, among other compliance requirements. Also, it remains to be seen whether the perceived benefit of having clear processes surrounding the involvement of surface rights owners and Aboriginal communities in early-stage mineral exploration materializes. While part of the intent of the new regulations was to clarify requirements surrounding Aboriginal consultation upfront, and thereby to decrease the likelihood of significant related issues arising during the later stages of exploration projects, the regulations create potential uncertainty in the upfront consultation and permitting process, particularly with regards to timing and discretion exercised by the MNDM, and could result in significant delays and costs to exploration projects. Both exploration plans and permits will be mandatory as of April 1, 2013. Exploration plans are effective for a period of two years and exploration permits valid for a period of three years.

Ultimately, the merits of the early consultation requirement can only be realized if the MNDM takes a balanced and practical approach that rewards good faith consultation and removes leverage from those who do otherwise.

To view original article, please click here

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions