Mining Act Regulations:
Recent amendments made to the Mining Act are being brought into effect as implementing regulations and policies are developed, in an ongoing roll-out of the Mining Act Modernization (MAM) initiative. These amendments and the implementation scheme balance a range of interests, provide more clarity and certainty to the mineral industry and ensure the rights of Aboriginal communities and private landowners are respected.
Proposals for some of the Mining Act’s first phase of new regulatory provisions were posted on the Environmental Registry (ER) or Regulatory Registry in November, 2010 and were implemented in Spring 2011. They included a new claim staking and recording regulation which implemented map staking in Southern Ontario, notification of staking on private lands, provisions supporting applications for withdrawal from staking of Crown mining rights under privately owned surface rights in Northern Ontario, and an exemption from mining land tax for private landowners whose lands were originally granted by the Crown for mining purposes.
The current set of regulation proposal postings (Phase II regulations) include implementation of a new graduated regulatory scheme for early exploration activities, the criteria for sites of Aboriginal cultural significance, clarifying Aboriginal consultation requirements relating to closure plans, implementing voluntary rehabilitation of abandoned sites including Aboriginal consultation requirements, changes to bulk sample permits, assessment work credits and some changes to administrative processes relating to mining claims and mining land tax notices.
Introduction to Proposed Exploration Plans and Permits Regulation:
MNDM is proposing a new Exploration Plans and Permits Regulation that would apply to early exploration activities that take place before an advanced exploration stage project and closure plan is triggered. The regulation would include requirements for notification of surface rights owners, Aboriginal consultation and rehabilitation requirements for carrying out exploration as well as rehabilitation of exploration sites when the activity is completed. The Ministry proposes to phase-in the provisions for Exploration Plans and permits and to make them mandatory within six months after the regulation is approved.
The regulatory proposal would include general requirements for carrying out early exploration activities throughout the province, including early exploration activities not subject to Exploration Plans or Permits. These requirements would ensure that:
• exploration sites be maintained in a safe and clean condition,
• roads and trails be free from obstructions,
• removal of refuse, fuel containers, equipment and other materials after an activity is completed or before an exploration plan or permit expires.
The regulatory scheme would be graduated, covering early exploration activities undertaken on mining claims, mining leases and licences of occupation for mining purposes, that are classified as requiring either Exploration Plans (for low impact activities) or Exploration Permits (low to moderate impact activities). The level of Aboriginal consultation and the requirements imposed on carrying out the exploration activities and rehabilitation of the project site would be graduated to reflect the potential level of impact of activities on the environment and Aboriginal and treaty rights.
In this proposal, the holders of mining claims, mining leases or licences of occupation for mining purposes are referred to as “exponents”.
Activities that would be subject to an Exploration Plan
The regulation would set out in a schedule the low impact early exploration activities that would require an Exploration Plan. Examples are as follows:
• geophysical surveys that require a power generator
• the cutting of survey grid lines up to 1.5m wide.
• drilling using drill equipment up to 150 kg in weight
• mechanized surface and overburden stripping for a combined surface area up to 100 square metres – located within a 200 metre radius.
• test pitting and trenching of rock: 1 to 3 cubic metres in total volume, and a maximum depth of 15 centimetres – located within a 200 metre radius
Exploration Plans would be templated forms that the exponent completes. Exploration Plans would include a summary of the proposed early exploration activity including the timing of the activity and a map of the general location of the proposed activity. The exponent would send a copy of the Exploration Plan to surface rights owners whose property is within the mining claim or lease area that will be explored to notify them.
The Exploration Plan would include a consultation report, where the exponent would provide information about any aboriginal consultation that has been conducted prior to submitting the Exploration Plan. The ministry would encourage consultation be undertaken well in advance of undertaking exploration work, and if the exponent does begin consultation early, he or she would contact the Director of Exploration to obtain direction on which Aboriginal communities are to be consulted, along with appropriate contact information for those communities.
The exploration plan would then submitted to the ministry. The ministry would provide a copy of the submitted exploration plan to the appropriate Aboriginal communities and list the exploration plan on the ministry website. Comments on the plan would to be made to the Director and the exponent.
Reflecting the low impact of these activities, the work could begin 30 days after the exploration plan is provided by the Director to the potentially affected Aboriginal communities. During that 30 day period, the exponent could make adjustments to the exploration plan in response to feedback from surface rights owners or Aboriginal communities. If the Director of Exploration determines it is necessary to impose specific terms and conditions on certain activities in order to respond to concerns about the impact on Aboriginal or treaty rights, the Director may require that an exploration permit be obtained instead of following the exploration plan process.
An Exploration Plan will be effective for a period of two years.
The following link shows how Exploration Plans would be processed.
Activities that would be subject to an Exploration Permit
The regulation would set out in a schedule the low to moderate impact early exploration activities that would require an Exploration Permit. Examples are as follows:
• the cutting of survey grid lines greater than 1.5m wide
• drilling using drill equipment greater than 150 kg in weight
• mechanized surface and overburden stripping for a combined surface area exceeding 100 square metres – located within a 200 metre radius.
• test pitting and trenching of rock greater than 3 cubic metres in total volume – located within a 200 metre radius.
Note that if activities exceed the threshold for advanced exploration (as defined in the Mining Act, Part VII and O. Reg. 240/00), they will be subject to the Closure Plan requirements in the Act.
Exploration Permits would be instruments issued by Ministry and therefore permit proposals would be posted on the Environmental Registry for public comment for 30 days and would follow the process under the Environmental Bill of Rights, 1993, including posting of a notice of decision for each permit, indicating how any comments received were considered in the permit decision.
The exponent would prepare an Exploration Permit application on an approved form and submit it to the Ministry. The application would include a summary of the proposed exploration activity and a record of any Aboriginal consultation that has been conducted prior to submission of the permit application.
Ministry would identify the Aboriginal communities that should be consulted.
Claimholders would circulate exploration permit applications to surface rights owners while the ministry would circulate permit proposals to the appropriate Aboriginal communities and would post the proposal on the Environmental Registry. Exploration permits would be subject to the standard requirements for permit activities set out in the Provincial Standards (see below). The Ministry may add site-specific terms and conditions to a permit based on the review of the application and comments received.
An exploration Permit could be approved anytime from 31-50 days after being circulated to Aboriginal communities and posted on the ER. If Aboriginal consultation has been conducted prior to submission of the permit application, and issues have been resolved, the permit could be processed more quickly. The regulation will have a “stop the clock” provision, if additional time is required for facilitation involving Ministry staff, or if third party mediation to resolve a dispute is required. The clock may also be stopped if more time is required to align with other ministry processes (e.g. bulk sample permission processing, or a proposal to impose a surface rights restriction on a mining claim).
A Permit would be effective for a period of three years
Dispute resolution process for exploration permits
The regulation would include provisions for dispute resolution between an exponent and an Aboriginal community in cases where there are outstanding concerns related to consultation or on impacts to Aboriginal or treaty rights. Provisions for dispute resolution would enable the Ministry or a third party to be engaged in resolving a dispute before a permit decision is issued.
The proposed dispute resolution process would be based on a model that provides facilitation and mediation between the parties through the use of an independent third party. The Ministry would also be available to participate in the process where required. The process would be designed to facilitate dialogue between the parties of the dispute and the person conducting the process would be required to submit a report with recommendations to the Minister of Northern Development and Mines within 30 days. The report and recommendations would become part of the record of the Minister in consulting with Aboriginal communities on a Permit.
The Ministry would cover the costs of the person conducting the dispute resolution process and the costs associated with undertaking the process but not the costs of the parties to participate the dispute.
The following link shows how Exploration Permits would be processed.
Provincial Standards: Requirements for carrying out early exploration activities:
The ministry is proposing to set out the requirements for carrying out activities that are subject to an exploration plan or exploration permit in a set of Provincial Standards for early exploration. The standards document would be incorporated by reference into the exploration plans and permits regulation, so the standards or requirements can be enforced as if they were set out in the regulation. The advantage of having the requirements set out in a separate Standards document is that it is an evolving document which can be added to or amended easily to reflect changes in technology, best management practices and feedback on how the existing standards are working in practice. Exponents would be required to comply with the most recent, updated version of the standards, and these updates need not wait for a new regulation to be made before they will be effective.
The requirements for early exploration activities and site rehabilitation on completion of the work that are currently proposed for the Provincial Standards include:
Exploration Plan Activities (while exploration is ongoing):
• posting warning signs of a potential electrical hazard related to the use of geophysical surveys that require a power generator
• survey line cutting be carried out by hand-held tools only
Exploration Permit Activities: (ongoing exploration and rehabilitation)
- generally, whenever drill is moved to a new location, any drill holes
where drill casings are left in place, would be clearly marked and visible in all seasons.
- all drilling fluids, cuttings and mud, are contained and not left within 30 metres of a water body
- all drill hole locations where casings are not removed are marked with durable reflective markers which are clearly visible in all seasons.
- drill core would be stored at least 61.5 metres away from the shore of any permanent water body.
Additional requirements for drill holes that: produce water (artesian), encounter underground mine openings or solution cavities or are greater than 15 centimetres in diameter:
- while exploration is ongoing, drill holes may be capped with screw on or bolted on caps
- rehabilitation on completion of the exploration project - these drill holes must be sealed be sealed from the surface to a length of 30 metres into the bedrock.
• Stripping overburden and trenching rock:
All stripped topsoil, overburden and waste rock would be stockpiled on site in a safe and stable manner during exploration.
Any pit wall or vertical rock face greater than three metres in height during exploration would require:
- a high visibility barrier fence at least one metre in height situated at least 3 metres from the rock face or pit wall,
- clearly visible warning signs posted in suitable locations, and
- pits to be sloped to provide at least one ramp as a point of egress.
- all pit walls or vertical rock faces greater than three metres in height are backfilled or contoured to a stable angle of repose. Pits would have at least one ramp as a point of egress.
- all waste rock and disturbed overburden is contoured to a stable angle of repose.