The Quebec Mining Act has been substantially amended and modernized by Bill 70, which the Quebec National Assembly adopted on December 9, 2013. This fourth attempt to update Quebec's mining legislation follows on the heels of the defeat of Bill 43 and that of Bills 79 and 14 in previous legislative sessions. The amended Act came into force on December 10, 2013, saving a few sections which will come into force at a later date.
The Act now contains three provisions that relate specifically to aboriginal communities, including a provision that the Minister is to draw up an aboriginal community consultation policy specific to the mining sector. The Act also states that it is to be construed in a manner consistent with the obligation to consult aboriginal communities and requires the Minister to consult aboriginal communities separately if the circumstances so warrant. What those circumstances might be, however, has not been clarified.
As proposed in Bills 43 and 14, the Act will require claim holders to notify the landowner concerned that they have obtained a claim, within 60 days after registering the claim. The procedure for such notification will be set out in a regulation. Where the claim is on the territory of a local municipality, the claim holder must also inform the municipality and the landowner at least 30 days before performing work. Claim holders will also have to submit to the Minister an annual plan of work and an annual report on all work performed.
An application for a mining lease will have to be accompanied by a project feasibility study as well as a scoping and market study as regards processing in Quebec.
The Minister will have the power, before mining operations begin and 20 years after they begin, on reasonable grounds, to require maximization of the economic spinoffs within Quebec of mining the mineral resources authorized.
On each anniversary date of a mining lease or mining concession, the lessee or grantee will have to send the Minister a report showing the quantity of ore extracted during the previous year, its value, the duties paid under the Mining Tax Act during that period and the overall contributions paid.
The lessee under a mining lease must also establish a monitoring committee whose role is described in rather vague terms as "fostering the involvement of the local community in the project as a whole." The committee will apparently have power to consider the economic, social and environmental aspects of the mining project to which the lease pertains.
The grantee under a mining concession will have to start mining operations by December 10, 2018. Before starting such work, the grantee will have to prepare a scoping and market study for processing within Quebec. Where there are reasonable grounds for doing so, the Government may require maximization of the economic spinoffs within Quebec of exploiting the resources extracted from the concession.
The Act, which is guided by the principle of sustainable development, sets out certain additional environmental conditions that must be satisfied prior to the grant of a mining lease. Mining leases will in future require the prior approval of a rehabilitation and restoration plan and the issue of a certificate of authorization under the Environment Quality Act, unless the time needed to obtain a certificate is unreasonable. In addition, the applicant for a mining lease for a metal mine project where the mine has a production capacity of less than 2,000 metric tons per day will have to hold a public consultation. The report on the consultation will have to be sent to the Minister.
The Minister must make rehabilitation and restoration plans public and register them in the public register of real and immovable mining rights for public information and consultation purposes. This forms part of the environmental impact assessment and review procedure provided for in the Environment Quality Act.
Rehabilitation and restoration work must begin within three years after operations cease. Exceptionally, the Minister may require work to begin within a shorter period, or authorize one or more extensions. In the case of an open pit mine, the rehabilitation and restoration plan must include a backfill feasibility study.
Public interest criterion
In a change from Bill 43, the Minister may not refuse an application for a lease or terminate a lease for public interest reasons. This limits the Minister's power to interfere in applications for mining leases.
Leases to mine surface mineral substances
As contemplated in Bill 43, 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 may impose additional measures if the public consultation is not held in accordance with the regulations. 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.
In the public interest, the Minister may refuse an application for a sand and gravel lease. Since the concept of public interest is quite broad, the Minister will have considerable discretion in granting such leases. The Minister may also, for similar reasons, revoke a sand, gravel or stone lease or modify its limits. The Minister must pay compensation to the lessee if a lease on a substitute parcel of land is not or cannot be offered for any reason.
Limit on power of expropriation
Under the previous act, the holder of mining rights or the owner of mineral substances (except in cases where land was leased by the State) was entitled to expropriate any property in order to access the land or for mining exploration or operations.
As Bill 43 also proposed, the Act now limits the right of expropriation to the mining operation phase exclusively. The parties must first try to reach agreement. Failing agreement and only where necessary for its mining operations, the holder of mining rights or the owner of mineral substances may acquire the property by expropriation. Where a mining operator wishes to acquire a residential immovable or an immovable used for agricultural purposes and situated on farm land, the holder of mining rights will be obliged to provide financial support to the owner when negotiating the expropriation of up to 10% of the municipal valuation of the property. A residential immovable may not in any circumstances be moved or demolished until a mining lease is issued. Moreover, the holder of mining rights must obtain authorization in writing at least 30 days before accessing the site.
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 will be made public.
The following information will be published for all mining leases, mining concessions 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;
- the overall contributions paid by the holder;
- the rehabilitation and restoration plan approved by the Minister; and
- the total amount of the financial guarantee required.
However, the data contained in an agreement entered into between the holder of a mining lease or a mining concession and a community will not be made public and may only be used for statistical purposes. The exploration work reports involving amounts beyond the allowances that may be claimed under the Mining Tax Act will remain confidential for five years after the date of the work.
More severe penalties
The Act now provides for much more severe penalties, with fines of up to $6,000,000, which is consistent with Quebec's scheme of environmental penalties.
Designation of "mining-incompatible territories"
The Act respecting land use planning and development has been amended by the Act to allow regional county municipalities to delimit any "mining-incompatible territory" in their land use and development plan. Any mineral substance that forms part of the domain of the State and that is found in a parcel of land on which a claim may be obtained and that is included in a "mining-incompatible territory" will be withdrawn from prospecting, mining exploration and mining operations from the time the territory is shown on the maps kept at the office of the registrar of mines, provided the withdrawal is consistent with government policy directions.
A "mining-incompatible territory" is a territory in which the viability of activities would be compromised by the impacts of mining.
Provisions relating to uranium
It will be mandatory to report the discovery of mineral substances containing 0.1% or more of triuranium octaoxyde within 90 days after the discovery.
As proposed in the previous bill, the Act as amended requires holders of mining rights who conduct 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 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.
Regulation respecting environmental impact assessment and review
Lastly, the Act amends the Regulation respecting environmental impact assessment and review in order to require an environmental impact assessment for all ore processing plant construction projects, all mine opening and operation projects where the processing or production capacity of the plant or the mine is 2,000 metric tons or more per day and all projects for processing of rare earth ore, regardless of the processing or production capacity of the project.
The adoption of Bill 70 brings to an end several years of uncertainty about mining legislation in Quebec. The new rules address a number of environmental concerns, foster greater transparency in the mining industry and promote greater social acceptability of mining projects. The public will be consulted more and regional land use planning and development agencies will have more power to define "mining-incompatible territories" as long as they are consistent with government policy directions. Thus, although the rules that govern the mining industry have been tightened up, they provide clarity, which should facilitate the design and planning of mining projects. It remains to be seen how the various social, economic, environmental and government players who have a stake in the Quebec mining industry will react to this new legislative environment.
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.