Legal Updates

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Update

Wednesday, November 29, 2017

Read online or download the full update here.

Background

The Mining Act (Ontario) (the “Act”) is the provincial legislation that governs and regulates prospecting, mineral exploration, mine development and mine rehabilitation in Ontario. The purpose of the Act is to encourage prospecting, staking and exploration for the development of mineral resources.

Since 2009, the Ontario government and the Ministry of Northern Mines & Development (“MNDM”) have been in the process of modernizing the Act, which involves the implementation of significant legislative amendments. The goals of the modernization process are to: (i) promote mineral exploration and development in a manner that recognizes Aboriginal and treaty rights; (ii) introduce processes that are respectful of the interests of private landowners; and (iii) minimize the environmental impact of mineral exploration and development. 

The modernization process is proceeding in three distinct phases. The first two phases, which have now been completed, focused on the rights of private landowners, increasing clarity and certainty for the mining industry and engagement with Aboriginal communities.

Modernization Phases I and II

Key elements of the third phase of modernization of the Act that are applicable to transactions involving mining claims and registration matters are summarized below. The first two phases of modernizing the Act were in respect of the following:

Phase I was implemented in 2011 and focused on the rights of private landowners: it required notice of claim staking be provided to the private land owner by the prospector and, in Northern Ontario, gave private landowners the ability to apply to have their lands withdrawn from staking. Phase I also included a less intrusive claim staking process (map staking) for most of southern Ontario.

Phase II provided for the following:

  • An exploration plan, mandatory effective April 1, 2013 for certain prescribed activities, must be submitted and notification provided to any surface rights owner(s) before undertaking certain early exploration activities.
  • Effective April 1, 2013, some early exploration activities require an exploration permit, which are only allowed to take place once the permit has been approved by MNDM. Surface rights owners must be notified when applying for a permit.
  • Phase II implemented additional requirements to consult with Aboriginal Communities at various stages of the exploration/development process.
  • Aboriginal communities have been able to apply to have sites of Aboriginal cultural significance withdrawn from claim staking to prevent mineral exploration in these areas since November 1, 2012.
  • Completion of a Mining Act awareness program is now required to obtain or renew a prospector’s licence and for those supervising early exploration projects.

Other changes brought about by Phases I and II include:

  • Persons may now apply to voluntarily rehabilitate an existing mine hazard that they did not create on Crown-held land, without becoming liable for pre-existing environmental issues on the site. 
  • GPS geo-referencing data has been required on the application to record certain mining claims since November 1, 2012.
  • The process for obtaining permission to test mineral content changed for applications made after November 1, 2012 and thresholds have been set for the amount of material that will be considered a bulk sample. A bulk sample permission and an exploration permit are now both required to extract a sample from a mining claim to test its mineral content.

Modernization Phase III: Online Administration and Conversion

90-Day Pre-Conversion Hiatus Period

The principal components of the third phase of modernization of the Act are to: (i) convert Ontario’s mining lands administration systems from ground/paper map staking to online registration; and (ii) establish the online Mining Land Administration System (MLAS) to enhance data access and file management. The implementation of the third phase will commence in January 2018 with the commencement of the “pre-conversion period”, and MLAS is scheduled to be fully implemented by April 10, 2018.

On January 8, 2018, traditional paper claim staking will end in Ontario. The 90-day pre-conversion hiatus period (the “Hiatus Period”) will begin on January 9, 2018. During the Hiatus Period, claim recording activity and transactions such as transfers and filings of reports will not be permitted. However, the Ministry of Northern Development and Mines (“MNDM”) will continue to update the existing online mining claims system known as “CLAIMaps” to reflect the location of existing claims.

In anticipation of the restrictions during the Hiatus Period, prior to January 8, 2018, parties with mining claims should:

  1. confirm the mapped locations of mining claims with the MNDM by geo-referencing the claim posts with GPS data;
  2. complete any staking of mining claims;
  3. complete and file assessment work reports and distributions; and
  4. complete any other transactions (e.g., transfers) affecting a mining claim.

Implementation of Online Mining Lands Administration System (MLAS)

At the end of the Hiatus Period, Ontario’s new MLAS will be operational and publicly accessible. As of April 10, 2018, the online mining claim registration process will be launched, which will permit online transaction of all mining lands administration matters.

The end of the Hiatus Period is also the effective date of conversion, which is the process of taking mining claim holders’ existing ground or map-staked mining claims (the legacy claims) and transforming them into one or more cell claims or boundary claims on the provincial grid in CLAIMaps. As of April 10, 2018, for all active unpatented claims, the physical location of posts will no longer be valid and the current CLAIMaps’ positions of the claims will become their recognized positions.

Following April 10, 2018, legacy claims will not be cancelled but will continue as cell claims or boundary claims that result from conversion. However, dispositions (such as leases, patents and licences of occupation) will not be converted; they will be viewable, and certain transactions will be managed, within MLAS.

Conclusion

Prior to the commencement of the Hiatus Period on January 9, 2018, claim holders should review and verify the position of their unpatented mining claims on the ground with respect to their mapped position as shown in CLAIMaps by geo-referencing with GPS. For those that are pursuing or contemplating transactions involving mining claims, it is strongly recommended that any such transfers be completed as soon as possible prior to the commencement of the Hiatus Period. As well, any transactions involving unpatented mining claims occurring over the Hiatus Period should be based on the CLAIMaps descriptions of the claims, which will become definitive following conversion.

If you have any questions with respect to the matters discussed above, please contact Al Wiens by email at awiens@wildlaw.ca or Jonathan Born by email at jborn@wildlaw.ca.

This update is intended as a summary only and should not be regarded or relied upon as advice to any specific client or regarding any specific situation.

If you would like further information regarding the issues discussed in this update or if you wish to discuss any aspect of this commentary, please feel free to contact us.