Ontario Amends the Mining Act to Streamline Closure Planning and Mineral Recovery Requirements

On May 18, 2023, the Province of Ontario granted Royal Assent to various amendments to the Mining Act through Bill 71, the Building More Mines Act, 2023 (“Bill 71”). The government’s stated purpose of these amendments is to create conditions that allow mines to be built and operated more efficiently in Ontario.

Bill 71 was introduced on March 2, 2023, and was open for comment until April 16, 2023. Although some technical amendments were made during its passage, Bill 71 largely passed as initially proposed.

We expect the amendments will accomplish the government’s goal by expediting approvals of closure plans, increasing certainty for companies engaging in mineral recovery operations, and providing the Minister of Northern Development and Mines (the “Minister”) with greater authority in the approval and decision-making process for mine development and operation.

Background

The province enacted Bill 71 as part of its strategy to promote Ontario’s “critical mineral” industry and thereby reduce Canada’s reliance on the current small number of foreign suppliers of such minerals. Bill 71 follows the government’s 2022 release of its Critical Minerals Strategy, which identified 33 key minerals used in electric vehicle production, information communication technology, clean technology, and medical equipment. The Ring of Fire, an area in Northern Ontario, contains largely undisturbed reserves of nickel, copper, platinum, and chromite (i.e., some of the critical minerals) and its timely development would support the Critical Minerals Strategy.

The passing of Bill 71 and amendments to the Mining Act should support the Critical Minerals Strategy by reducing the regulatory burden on the mining industry and, hopefully, speeding the development of mines in the Ring of Fire. Bill 71 further supports the province’s commitments in its Critical Minerals Strategy of streamlining the Mining Act to create a regulatory framework that it deems to be more efficient, flexible, and proportionate.

Changes to Closure Planning

The Mining Act requires proponents to submit a closure plan to the Director of Mine Rehabilitation (the “Director”) before undertaking advanced exploration activities or commencing mineral production. A closure plan is a technical document that requires a proponent to plan for the ongoing and complete rehabilitation of a mine and associated lands and features at all stages of the mine’s life. Previously, a proponent had to “rehabilitate” lands subject to mining activities to their former condition. In addition, the Ministry of Northern Development and Mines was previously required to review and approve a submitted closure plan before commencing any operations . This technical review would often take significant time to complete, leading to delays in mine development and production.

Before Bill 71, proponents were also required to estimate and post financial assurance with the closure plan to secure all of the proponent’s rehabilitation obligations. The Mining Act required the proponent to post the full amount of financial assurance, even if operations or mine features were not scheduled to commence until years into the future.

The Mining Act also granted the Director with powers to ensure rehabilitation is undertaken in accordance with the closure plan. In various circumstances outlined in the Mining Act, including changes in ownership or changes to the form of financial assurance, a proponent was required to issue a Notice of Material Change to the Director. This notice allowed the Director to then order that amendments be made to the closure plan.

Bill 71 introduces significant amendments to the closure planning framework that aim to address the delay in approving closure plans, requirements to post full financial assurance for closure plan obligations before beginning mine operations, and the triggering of revised closure plan obligations upon filing administrative Notices of Material Change. These changes include:

• Decision-making. Bill 71 eliminates the Director’s role in closure planning and instead vests those powers with the Minister. The Minister is now also given the same powers as the Director of Exploration, who is empowered to grant exploration permits and review a proponent’s exploration plan.

• Qualified Person Certification. Bill 71 provides the province with power to make regulations that allow closure plans to be certified by a “qualified person” or other persons specified in the regulations. While more details are required, it is expected these regulations will allow a proponent and the Minister to rely on the qualified person’s certification of a closure plan, rather than the current technical review process and approval of closure plans by the Ministry of Northern Development and Mines.

• Conditional Filing Orders. The Minister now has wide-ranging order-making powers to waive the requirement to file a complete closure plan or to file amendments to an existing closure plan, provided the Minister determines that such waiver is consistent with the purposes of the Mining Act. A Minister’s order will need to require that the proponent file the outstanding items within a prescribed time period and will include any other terms and conditions the Minister deems necessary. The province will likely pass regulations that provide further guidance on the process to apply for a Minister’s order, the circumstances in which a Minister’s order will be granted, and terms and conditions for receiving a Minister’s order.

• Phased Financial Assurance. A proponent who submits a closure plan may now submit phased financial assurance that is tied to a construction schedule for mine features, rather than having to submit the full estimated amount of financial assurance for the lifespan of the mine with the closure plan.

• Notice of Material Changes. Bill 71 also simplifies a proponent’s obligation to file notices of material change. Proponents must now only promptly notify the Minister of a change if it has or will likely occur and could reasonably be expected to have a material effect on the adequacy of the proponent’s closure plan. This change will likely exempt proponents from having to file notices of material changes related to various non-material and administrative changes, such as changes to the form of financial assurance or changes in ownership.

• Regulatory Standards and Exemptions for Remediation. Bill 71 allows the province to establish standards for restoring lands following mining activities in regulations. These standards may allow a proponent to “rehabilitate” a mine feature or take “protective measures” to restore lands in accordance with prescribed standards, rather than to simply restore the lands to their former condition. The province stated that the intent of this change is to provide proponents with flexibility to pursue alternative rehabilitation and post-closure planning.

Changes to Recovery of Minerals

In 2021, the province proposed a recovery permit framework in the Mining Act that allowed a proponent to apply for a permit to recover minerals from mine tailings and wastes. The recovery permit was subject to the condition that the permit holder would be required to “improve” either public health or safety or the environment by remediating the lands where the tailings or wastes were located. Proponents expressed concern about the ambiguity of this condition and that it could be interpreted as requiring a level of remediation that was not feasible in many circumstances.

Bill 71 clarifies this ambiguity by requiring a proponent recovering minerals from mine tailings or waste to remediate the lands to be “comparable or better than” their condition before the recovery of minerals, as determined by the Minister.

Next Steps

Bill 71 is not yet in force, as the province is expected to enact additional implementing regulations. The province may also introduce other legislative amendments to further implement its Critical Minerals Strategy. We will continue to monitor the province’s progress and provide additional updates as they arise.

For further information, please contact any member of our Environmental Law Group.