Submitted by Herb Shields (Hamilton, ON) and Raymond Goulet (Montreal, QC)
In the 2012-2013 Fraser Institute Mining Survey, Ontario and Quebec virtually tied for 8-9th position in a global ranking of mining jurisdictions. Both Canadian provinces have taken a serious look at their respective Mining Acts and made significant amendments to address concerns and pressures from their constituents. What are the chief reasons for these changes and what do they mean for mineral exploration and development in each province?
- Aboriginal communities. Quebec’s Act now contains three provisions that relate specifically to Aboriginal communities. First, Quebec is to draw up an Aboriginal community consultation policy specific to the mining sector; second, the Act states that it is to be construed in a manner consistent with the obligation to consult Aboriginal communities; and third, the Act requires Quebec to consult them separately (Chapter 1 – Application, Interpretation).
Driving the Ontario Mining Act amendments was a need to enhance Aboriginal consultation approaches. Ontario’s modernized Mining Act included several regulations and subsequent policies whose objective is to implement effective consultation protocols and foster positive Aboriginal-government-industry relations. Those protocols now in effect in Ontario include a wide range of programs and policies from mandatory online education, to a graduated permitting system that includes exploration plans and permits, to more incentives for exploration companies to consult including assessment work credits related to consultation with Aboriginal communities.
- Mining economics. Quebec has taken a robust approach to managing exploration projects that could potentially turn into significant long-term economic opportunities. In Quebec, an application for a mining lease will now have to be accompanied by a project feasibility study and a scoping and market study. Quebec will have the power, before mining operations begin and for the life of the lease, on “reasonable grounds” (what those grounds are is still undefined) to require that any economic spinoffs of mineral extraction are maximized within Quebec. Additional mandatory conditions of obtaining a Quebec mining lease include establishing a monitoring committee to engage the local community in the project.
In Ontario, the traditional approach to encouraging economic growth in the mineral production sector continues to reign. Ontario does not require community monitoring committees, maximization of economic spinoffs or a detailed accounting of project feasibility to obtain a mining lease or a closure plan.
- Environmental considerations. Another area where Ontario and Quebec have parted ways is how they view the interaction between environmental regulations and their respective Mining Acts. In Quebec, the Act sets out certain additional environmental conditions that must be satisfied before granting a mining lease. In the future, mining leases will require prior approval of a rehabilitation and restoration plan and authorization under the Environment Quality Act.
In Ontario, closure plans are longstanding requirements that provide an opportunity for the mining proponent to outline how the affected land will be rehabilitated and the costs associated with doing so. A closure plan must be developed and acknowledged by Ontario before mine development can begin. Ontario has chosen not to explicitly tie filing closure plans to other environmental regulatory requirements.
- Mining-incompatible territories. Both Ontario and Quebec have seen a rash of pressure in recent years to designate certain areas and regions of their jurisdictions off-limits to mineral exploration and development. Both jurisdictions have reacted to these concerns in their own particular ways.
In Quebec, the Act Respecting Land Use Planning and Development has been amended by the Mining Act to allow regional municipalities to designate any “mining-incompatible territory” in their land use and development plan. In comparison, no Ontario municipality has the capabilities to designate mining-incompatible territory in their land use plans. Instead, Ontario has unveiled their Far North Act, which stipulates that over half of the far north of Ontario (that region in which no forestry licenses are issued) is to be withdrawn from mineral staking.
One could say the new Quebec Mining Act reflects the current politics and sentiments in that province: ongoing environmental concerns, greater transparency, decentralized planning and downloading to municipalities, and a legislative need to mandate economic concessions, while tacking on enhanced Aboriginal consultation. Will these changes make Quebec a more attractive place to conduct business? A municipality or private land owner will see enhanced land planning controls and close coordination with environmental regulations but not necessarily more business. A large mineral producer, now facing legislative mandates for market studies and potentially more delays, will be asking if these changes add clarity and certainty to conducting business.
Driving Ontario’s Mining Act changes has been a string of legal defeats and Aboriginal consultation requirements. This is reflected in the amount of attention the new Mining Act regulations and policies have focused on Aboriginal consultation enhancements and incentives to industry with less focus on environmental regulations and satisfying private property owners. Junior to mid-sized exploration companies will see Ontario as providing more certainty. Senior mineral producers, given the few new incentives in the Mining Act and the lack of infrastructure, power and certainty in the Far North of Ontario, would be hard-pressed to see a dramatic shift in clarity or certainty. The Mining Act changes are a good step forward, but Ontario should anticipate only moderately enhancing its ranking going forward.
Herb Shields is an Aboriginal Relations Specialist with Stantec. Raymond Goulet is a Principal, Environment Services with Stantec.