The proposed amendments to the regulation are part of the Phase II regulatory provisions that are being phased in to support the recent amendments to Ontario’s modernized Mining Act.
Proposals for some of the Mining Act’s Phase I regulatory provisions were posted on the Environmental Registry (ER) or Regulatory Registry in November, 2010, and were implemented in Spring 2011.
As part of Phase II of the implementing regulations under the Mining Act, MNDM is proposing to amend the Mine Development and Closure Regulation to clarify requirements for Aboriginal consultation relating to Closure Plans (and amendments) for advanced exploration and mine production stage projects and to implement the voluntary rehabilitation of abandoned mine hazards under section 139.2 of the Mining Act, together with requirements for Aboriginal consultations for these types of rehabilitation projects.
The proposed amendments:
• Clarify the requirements for Aboriginal consultation and the roles of the proponent and the ministry, including clarification that consultation is to be conducted prior to submitting a certified closure plan
• Provide for dispute resolution for Aboriginal consultation issues, via independent third party mediation
• Implement voluntary rehabilitation (already established in the Act) by providing details for obtaining approval of rehabilitation plans, for reporting on the work done, and for Aboriginal consultation
Changes for Advanced Exploration and Mine Production Closure Plans:
The changes proposed are to formalize what is currently being done in most cases, with respect to Aboriginal consultation on Closure Plans. These are far more limited in number than are early exploration projects, as they represent a more advanced stage of the mining sequence. As such, they are very much considered on a case by case basis, tailored to the circumstances of each project.
One of the key changes proposed is to clarify that Aboriginal consultation is to be carried out before a certified Closure Plan is submitted. This means that the existing process for submitting a “Notice of Project Status”, (which alerts the Ministry that a project is moving to a stage where a Closure Plan will be required), or for a “Notice of Material Change” (notifies the Ministry for material changes to an existing Closure Plan) will be changing.
These Notices would require additional information about the project or the proposed changes to the project, so the Ministry has earlier notice, and can determine what level of Aboriginal consultation will be required. The Director of Mine Rehabilitation would direct the proponent of the project with respect to the required consultation, including which Aboriginal communities should be consulted. The proponent would prepare a plan of consultation setting out what will be done to consult with the potentially affected Aboriginal communities. The Director may provide direction on the consultation plan, require interim reporting by the proponent, and can provide the proponent with additional direction as the consultation process is ongoing. This would allow the Ministry to better monitor the consultation process, including learning when issues have arisen that may require facilitation efforts by Ministry staff. In some cases, if the ministry’s facilitation efforts do not result in a resolution of these Aboriginal consultation issues, dispute resolution may be appropriate (see below).
Once the consultation plan and any further direction from the Director has been carried out, the proponent could submit the certified Closure Plan (or amendment).
The proposal would include provisions for dispute resolution between a proponent of a Closure Plans or Closure Plan amendments and an Aboriginal community in cases where there are outstanding concerns related to consultation or on impacts to Aboriginal or treaty rights. The proposed dispute resolution process would be undertaken prior to the submission of a certified Closure Plan or amendment to a Closure Plan.
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 Closure Plans.
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.
Section 139.2 of the Mining Act provides for a person to voluntarily rehabilitate an existing mine hazard and, provided that the person was not responsible for creating the mine hazard, the person can undertake that rehabilitation work without being made liable under environmental legislation for all reclamation issues on the site.
The regulation would have the Director of Mine Rehabilitation direct the applicant for the voluntary rehabilitation project with respect to the required consultation, including which Aboriginal communities should be consulted and the process will generally be similar to that outlined for Closure Plans, again determined on a case by case basis and taking into account that the work being done is intended to rehabilitate an existing mining hazard.