The Ministry of Northern Development and Mines (“MNDM”) has released the revised Draft Class Environmental Assessment for Mining (the “Mining Class EA”) for public comment until February 21, 2012*. The Mining Class EA replaces two declaration orders on discretionary land tenure decision-making and mine rehabilitation**. While the main purpose behind the Mining Class EA is to reduce the environmental impact of mining, those that hoped this document would help resolve competing land use issues and facilitate mining exploration and development may be disappointed.
Rather than reducing uncertainty by creating a clear set of workable rules to balance environmental protection and mining development, MNDM has left all major components of the Mining Class EA up to their discretion. Over the next few months we will release a series of articles on whether increased government discretion will advance both environmental protection and mining development, but in the meantime we wanted to discuss Mining Class EA and the basic issues of concern.
The Mining Class EA sets up a system to assess and mitigate the environmental and social impacts of mining projects that are “predictable and manageable”. The Mining Class EA only covers mine rehabilitation activities or actions that require MNDM discretion such as granting: some mining and surface rights, title to Crown lands for mining, or permission for the removal of bulk ore samples for testing. The Mining Class EA does not cover non-discretionary decisions such as prospecting, staking and the granting of mining claims and leases. It is unclear if prospecting, staking and exploration will still be exempt from the Mining Class EA when MNDM issues new regulations on Aboriginal consultation and mining exploration licensing later in 2012 (See our Jan. 12 post).
Since the Mining Class EA is limited only to MNDM discretionary decisions, the environmental assessment may not incorporate all circumstances that exist on the ground. MNDM staff may be tempted to exercise their discretion to broaden their review and look at decisions made under other legislation. This could create an additional risk for miners by bringing in land tenure decisions made under the Public Lands Act or the Planning Act (for organized municipalities) in to the environmental assessment process.
Projects covered by the Mining Class EA are categorized from A to D with environmental effects ranging from none (Category A) to significant (Category D). With larger potential environmental impacts comes a more onerous process with greater consultation requirements and the creation of a detailed Environmental Study Report.
Projects that have high enough impacts that are not “predictable and manageable” cannot be covered under the Mining Class EA. These projects are subject to the more stringent and time-consuming individual environmental assessment under the Environmental Assessment Act (Category E) and any person can request that a project be “bumped-up” from a Mining Class EA to an individual assessment.
The problem with this “predictable and manageable” standard is that mining is inherently unpredictable. Miners won’t know the environmental impact of the tailings or the value of their ore in the ground until they dig it up. It is unclear how MNDM will use their discretion to interpret this “predictable and manageable” standard but given the difference between the shorter Mining Class EA process and the potential large delays with an individual assessment there is the potential for lawsuits on this issue in the near future.
The Mining Class EA represents a real missed opportunity to create a win-win for both environmentalists and miners. This could have been accomplished by limiting government discretion, streamlining the mining development process, and by coordinating the planning and land tenure requirements between the Mining, Public Lands and Planning Acts. A more robust Mining Class EA would trade minimum environmental standards for mines (good for enviros) for an expedited process that lets mining companies get all the permits they need fast (good for miners). Instead, the Mining Class EA creates a new cumbersome process for miners that fails to address the other permits needed for basic mining infrastructure under the Planning Act, the Public Lands Act and the Far North Act.
While creating a “one-stop-shop” for miners would require better communication between MNDM, the Ministry of Natural Resources and others, it would greatly facilitate the mining development process. In the next few months, we will release a series of articles on the current mine development process and how the Ontario government could streamline the system.
*A Class Environmental Assessment for Activities of the Ministry of Northern Development and Mines under the Mining Act – Draft, January 23, 2012. Available at: http://www.mndm.gov.on.ca/mines/mineral_development_and_lands_branch/ea/default_e.asp.
**See Declaration Orders MNDM-3 for Discretionary Mining Land Grants and MNDM-4 for Abandoned Mine Hazard Rehabilitation.