Reducing the Regulatory Burden: Ontario Proposes Mining Act Amendments

On March 2, 2023, the Government of Ontario introduced Bill 71, the Building More Mines Act, 2023, which seeks to amend Ontario’s Mining Act. The changes are intended to shorten timelines for starting or modifying mine production and advanced exploration projects, facilitate permitting for the recovery of minerals from tailings and waste materials, and simplify closure planning. Although the proposed changes are not specific to critical minerals, Bill 71 is part of a broader effort by the Ontario government to capitalize on growing global demand for critical minerals driven by the transition to clean energy technologies. 

BACKGROUND

According to the Government of Ontario, the extraction of critical minerals in the province is a C$3.5-billion-per-year industry and is viewed as a driver of future economic prosperity. In March 2022, Ontario published its Critical Minerals Strategy, a five-year plan for promoting the exploration, extraction and processing of critical minerals, as well as for manufacturing products that contain critical minerals in Ontario.

Through the Critical Minerals Strategy, Ontario aims to position itself as a key global source of critical minerals by expanding incentives for exploration and development, investing more public resources in the development of infrastructure, and reducing some of the existing regulatory barriers facing exploration and mining companies. Bill 71 seeks to implement part of the strategy by reducing regulatory barriers.

SUMMARY OF PROPOSED CHANGES

Closure Plans

The Mining Act requires proponents to file a mine closure plan (CP) and financial assurance with the Director of Mine Rehabilitation before proceeding with advanced exploration or mineral production. Bill 71 seeks to shorten the time needed to file a CP by making the process less onerous by:

• Strengthening the value of certifications of qualified persons in the context of CP filing: Qualified persons will be able to certify CPs for filing based on prescribed requirements rather than the current process, which requires a technical review by the Ministry of Northern Development and Mines (Ministry) that can be time-consuming. The concept of a "Qualified Person” will be established under the Mining Act, but it has not yet been defined.

• Granting the Minister of Northern Development and Mines (Minister) the power to issue conditional filing orders for a deferral of required elements in a CP:  Where the Minister determines that elements of a CP can be deferred without compromising the integrity of a CP, it may issue an order setting out conditions and timelines for providing the outstanding requirements. This would prevent delays by allowing the CP to be filed and the project to proceed, while outstanding elements can be provided at a later date.

• Eliminating the need for a Notice of Material Change for non-material site alterations: Currently, a notice is required where: (i) an expansion or alteration of a project is planned; (ii) the ownership, occupancy, management or control of the project has changed; or (iii) any other material change has occurred that could reasonably be expected to have a material effect on the adequacy of the CP. The proposed changes would have item (iii) above as the only factor for determining if a notice is necessary. This would allow certain administrative changes, such as changes to the form of financial assurance or a change in ownership, to be made to CPs without filing a notice or requiring a CP amendment.

• Recognizing that phased financial assurance is acceptable: The proposed changes will provide explicitly within the Mining Act the ability for proponents to submit phased financial assurance based on schedules tied to the construction of new mine features, rather than providing the full estimated amount of rehabilitation measures in the CP in advance.

• Establishing regulatory standards and exemptions for rehabilitation: The definitions of “rehabilitate” and “protective measures” are to be amended to allow the government to establish standards for rehabilitation and the ability to adopt regulations allowing for exemptions. According to the government, this will lead to greater flexibility and certainty for industry stakeholders by allowing them to pursue alternate rehabilitation measures and post-closure land-use strategies.

These proposed changes are intended to shorten the timeline for CP preparation and approval, decrease the up-front costs of commencing or changing mine production and reduce the frequency of required change notices and CP amendments.

Recovery of Minerals From Tailings and Waste

The Mining Act currently includes a framework that is not yet in force requiring “recovery permits” to be issued before a proponent can recover minerals from tailings and other waste materials. The existing recovery permit provisions require applicants to demonstrate that the lands would be “improved” with respect to one or both of (i) public health and safety or (ii) the environment. The government acknowledges that the term “improved” is ambiguous and may lead to uncertainty as to what degree of “improvement” is required, and that it may present an unachievable or impractical standard in certain circumstances where the land in question is already disturbed.

The proposed amendments replace the “improvement” requirement with the requirement that the land be made “comparable to or better than” its prior condition before mineral recovery took place. The “comparable to or better than” standard is intended to increase certainty and decrease the regulatory burden where projects are developed on lands that have already been disturbed through other activities.

Decision Making

The bill proposes to vest certain decision-making powers in the Minister instead of, or in addition to, bureaucrats. The decision-making power attributed to the Director of Mine Rehabilitation will be vested in the Minister, and the Minister will also have the same powers as the Director of Exploration. Granting decision-making powers to the Minister may result in streamlined decision making and could also allow decisions to factor in government policies and priorities.

KEY TAKEAWAYS

Bill 71 is intended to reduce costs and delays associated with both the planning and rehabilitation stages of a given project.

The proposed changes will allow for greater efficiency, and proponents of advanced exploration and mine production projects can look to capitalize on an expedited closure plan approval process. If implemented effectively, the proposed amendments will shorten the time it takes to commence new mining projects and reduce the up-front costs of doing so.

Easing the stringency of the permitting process for mineral recovery from tailings and waste will allow for greater certainty in the mineral recovery process, which may increase interest in such sites.

Notably, the bill does not directly address improving engagement with Indigenous groups in the mine-permitting and closure-plan-filing process to make the advancement of projects more predictable and facilitate investment decisions.
 
Bill 71 has been posted on the Environmental Registry of Ontario website and is open for public comment until April 16, 2023.

For further information, or for assistance with submitting comments on these proposed amendments, please contact:

Charles Kazaz             +1-514-982-4002
John Wilkin                  +1-416-863-2785

or any other member of our Environmental or Mining groups.