Canada: Quebec Takes Another Stab At Reform Of The Mining Act

On May 29, 2013, Martine Ouellet, Quebec Minister of Natural Resources, tabled Bill 43, which would partially replace the existing Mining Act. This is the third attempt to reform the Act, both of the earlier attempts by the previous Liberal government (Bill 79 in 2010 and Bill 14 in 2011) having died on the order paper.

Bill 43 includes measures to achieve certain objectives that the provincial government identified in its proposed new mining tax regime, which we discussed in our May 2013 Legal Update, such as the desire to have more ore processed in Quebec and to achieve greater transparency in mining operations. The other amendments contained in Bill 43 are very similar to those contained in the previous government's Bill 14.

Highlights of Bill 43

Aboriginal communities

Bill 43 contains only one provision relating specifically to aboriginal communities, which simply states that the Act must be construed in a manner consistent with the obligation to consult aboriginal communities. This provision is lifted directly from Bill 14. No further guidance is provided, so that interested parties will have to rely on the courts' interpretation of this obligation. The Bill also requires the Minister to consult aboriginal communities separately, having regard to all the circumstances; however, it fails to specify what those circumstances might be.

Mining claims

Like Bill 14, Bill 43 provides that a claim holder must give notice of its claim to the owner, the lessee of land in the domain of the State or the holder of an exclusive lease to mine surface mineral substances, within 60 days after registering the claim and in the manner prescribed by regulation. If the claim is on the territory of a local municipality, the claim holder must also inform the municipality of the work to be conducted at least 90 days before the work is to begin.

Bill 43 innovates by allowing mining claims to be acquired by purchase at auction as well as by staking and map designation. The mineralization index or the exploration target must meet criteria determined by the Minister before the Minister can put the claim up for auction.

Mining leases

Economic spinoff agreement

The Bill gives the Minister the power to require that when a mining lease is entered into, an agreement also be entered into with the lessee in order to maximize the economic spinoffs within Quebec of mining the mineral resources authorized under the lease.The Bill does not provide further details on the proposed content of such an agreement.

Environmental considerations

All mine development and operation projects will be subject to an environmental impact assessment.

The grant of mining leases will be subject to the issue of a certificate of authorization under the Environment Quality Act and the approval of a rehabilitation and restoration plan.

Economic spinoff monitoring and maximization committee

The lessee under a mining lease must form a monitoring committee, as Bill 14 also required. Under Bill 43, the committee will have the additional responsibility of maximizing economic spinoffs. The committee will monitor the work performed under the mining lease and endeavour to maximize jobs, contracts and other economic spinoffs for local communities.

The committee will have to be established within 30 days after the lease is issued and be maintained until all the work provided for in the rehabilitation and restoration plan has been completed. The lessee will determine how many members the committee will have and who they will be, provided there is at least one representative of the municipal sector, one representative of the economic sector and one member of the public, all from the region in which the mining lease is located. A majority of the committee members must be independent from the lessee.

Public interest criterion

The Bill gives the Minister the power to refuse an application for a lease or to terminate a lease at any time for public interest reasons. In case of termination of a lease, however, the Minister must grant the lessee a lease on another parcel of land or compensate the lessee for the loss suffered. For the same reasons and subject to the same conditions, the Minister may reduce the area of the parcel of land subject to the lease.

Lease to mine surface mineral substances - public consultation

A public consultation will be required for the grant of a peat lease or a lease to mine surface mineral substances that is necessary to carry on an industrial activity or to engage in commercial export. The Minister will decide on the adequacy of the consultation and may impose any additional measure. The Minister may also attach conditions to the lease to avoid conflicts with other uses of the territory and to follow up on comments received during the public consultation.

Limit on power of expropriation

Under the current Mining Act, the holder of a mining right or the owner of mineral substances may acquire by expropriation any property permitting access to or necessary for the performance of exploration work or mining operations, except in certain circumstances.

Bill 43 limits the use of expropriation. The parties must first try to reach agreement. Failing agreement and only where necessary for its mining operations, the holder or owner of the right may expropriate the property. Expropriation would accordingly no longer be available for the performance of exploration work and will continue to require government approval.

If the property to be acquired by expropriation is a family residence, when negotiating the expropriation, the holder of a mining right will have an obligation to provide financial support to the owner of up to 10% of the municipal valuation of the property. A residential building may not in any circumstances be moved or demolished until a mining lease is issued.

Rehabilitation and restoration measures

Bill 43 states that the Minister must make public the rehabilitation and restoration plan as submitted for approval and register it in the public register of real and immovable mining rights for public information and consultation purposes and as part of the environmental impact assessment and review procedure provided for in the Environment Quality Act.

In the case of an open pit mine, the rehabilitation and restoration plan must include a backfill feasibility study.

Rehabilitation and restoration work must begin within three years after mining activities cease. However, the Minister may exceptionally require that the work begin within a shorter period, or authorize one or more extensions. The first extension may not exceed three years and additional extensions may not exceed one year.

Financial guarantee

The Bill requires the holder of a mining right who conducts exploration work or mining operations (including with respect to mine tailings) to provide a financial guarantee covering the anticipated cost of all of the work provided for in the rehabilitation and restoration plan to the extent and in accordance with the standards prescribed by regulation.

Such work must include the rehabilitation and restoration of accumulation areas, geotechnical soil stabilization, the securing of openings and surface pillars, water treatment and road-related work.

A holder of a mining right who conducts exploration work must provide the guarantee to the Minister before the work begins. In the case of mining operations (including with respect to mine tailings) and a person operating a concentration plant, the guarantee must be paid in three instalments, with the first instalment of 50% of the total amount of the guarantee being made within 90 days after approval of the plan is received and the second and third instalments of 25% each being made on the anniversary of the approval date of the plan. This is what the government proposed earlier in the draft regulation we discussed in our February 2013 Legal Update.

Municipalities

The Bill also amends the Act respecting land use planning and development to allow municipalities to delimit any mining incompatible territory or any conditionally mining compatible territory in their land use and development plan. In the first case, the mineral substance will be withdrawn from prospecting, mining exploration and mining operations. In the second case, the Minister will determine any conditions and obligations that may be imposed on the holder of the mining right.

For example, municipalities may withdraw certain zones from mining operations and the developer will then have to negotiate with each of them. Bill 14 also provided for such powers to be given to municipalities. However, the power delegated to municipalities for the management of mining on their territory is more restricted than it would appear at first sight. In fact, Bill 43 provides that this power remains subject to government policy direction to be defined at a future date. Although these proposed provisions appear at first sight to grant significant powers to municipalities for the management of mining activities on their territory, the proposed amendments to the Act respecting land use planning and development specify that the Minister of Natural Resources will have ultimate responsibility for deciding whether or not to allow mining activities to be conducted on a specific part of the territory. The Minister will thus be able to request amendments to a plan in order to revise a municipality's delimitation of a mining compatible territory or a conditionally mining compatible territory.

Mineral processing provisions

One of the significant changes introduced by the Bill is that no mining lease may be granted until an ore processing feasibility study has been conducted.

As for mining companies that already have a mining lease, the Bill provides for the obligation to produce an ore processing feasibility study when the lease is renewed.

The same obligation will apply to the mining claim holder before the mining operations begin and every 20 years thereafter.

Information obtained from holders of mining rights to be public

Subject to certain restrictions on access to information under the Act respecting Access to documents held by public bodies and the Protection of personal information, documents and information obtained by the Minister from the holders of mining rights would be made public.

The following documents and information will be published for all mining leases, mining claims and operating leases for surface mineral substances:

  • the quantity and value of the ore extracted during the previous year;
  • the royalties paid during the previous year;
  • any agreement entered into between a holder of a mining lease or a mining concession and a community; at first sight this would appear to cover agreements in principle and impact benefit agreements between mining companies and aboriginal communities;
  • the rehabilitation and restoration plan approved by the Minister; and
  • the total amount of the financial guarantee required.

The lessee of a mining lease will have to submit a report each year indicating the quantity and value of the ore extracted during the previous year, failing which a penal sanction may apply.

More severe penalties

The Bill provides for much more severe penalties for offences, with fines of up to $6 million.

Provisions relating to uranium

Bill 43 includes rules regarding the exploration and discovery of uranium. Like Bill 14, it provides that:

  • the holder of a mining right must take the safety measures prescribed by regulation and any other measure the Minister may impose;
  • the claim holder must report to the Minister of Natural Resources and the Minister of Sustainable Development, Environment, Wildlife and Parks any discovery of mineral substances containing 0.05% or more of triuranium octaoxide within 60 days after the discovery;

However, three additional obligations have been added to Bill 43:

  • a claim holder must notify the municipality and the landowner that he has acquired his right.
  • all drilling work done by the holder of the mining right while exploring for mineral substances containing uranium must be authorized by the Minister; and
  • a hydrogeological study must be submitted to the Minister in connection with such drilling work.

Provisions relating to oil, natural gas, brine and underground reservoirs

The provisions relating to oil, natural gas, brine and underground reservoirs contained in the existing Act are to be maintained in a separate act to be known as the Mining Act (Petroleum, Natural Gas, Brine and Underground Reservoirs).

h3>Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Lawson Lundell LLP
Norton Rose Fulbright Canada LLP
McCarthy Tétrault LLP
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lawson Lundell LLP
Norton Rose Fulbright Canada LLP
McCarthy Tétrault LLP
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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