Ministère de l’Énergie et des Ressources naturelles (“MERN”) released a document entitled “Pour assurer une cohabitation harmonieuse de l’activité minière avec les autres utilisations du territoire - Les orientations gouvernementales en aménagement du territoire”[1] (the “Policy Direction” - PDF, French Only). The Policy Direction follows on the coming into force of section 304.1.1 of the Mining Act[2] (Québec) (the “Act”) on December 14, 2016. It allows any mineral substance forming part of the domain of the State and found in a parcel of land that is included in a “mining-incompatible territory” delimited in a land use and development plan (“Plan”) in accordance with the Act Respecting Land Use Planning and Development[3] (the “LUPDA”) to be withdrawn from prospecting, mining exploration and mining operations.

The Act defines a “mining-incompatible territory” as a territory “in which the viability of activities would be compromised by the impacts of mining”.[4] We would note that this new section had been introduced by the Act to amend the Mining Act[5] (the “Amending Act”) enacted by the National Assembly (44th Legislature) and assented to on December 10, 2013 (on this point, see the Fasken bulletin published on December 19, 2013), after three unsuccessful attempts to reform the Act.[6]

The government thus took three years to bring this important amendment to the Act into force, although immediately upon coming into force, the Amending Act had brought into force the amendment to section 6 of the LUPDA[7] giving regional county municipalities, cities and agglomerations that exercise certain powers of regional county municipalities (collectively, for the purposes of this bulletin, “RCMs”) the power to delimit mining-incompatible territories themselves.

The purpose of the Policy Direction is to guide the RCMs in performing this new strategic role, and it is also intended to circumscribe the new power given to the RCMs. The release of the policy direction was therefore a necessary step for section 304.1.1 of the Act to come into force.

Objectives and expectations of the government

To ensure harmonious cohabitation between mining and the other uses of the territory, the Policy Direction sets out two major objectives: (i) to protect activities whose viability would be compromised by the impacts of mining, based on the uses of the territory and the concerns of the community; and (ii) to promote the development of mineral resources by harmonizing the uses.

Three expectations stem from the first objective:

  1. Identification and delimitation of mining-incompatible territories – If the RCM wishes to exercise a power set out in section 6 of the LUPDA, it must then delimit, in its Plan, any mining-incompatible territory within the meaning of section 304.1.1 of the Act. For that purpose, the RCM may identify the urbanization perimeter, in whole or in part, as part of a mining-incompatible territory, without giving justification. In the case of a territory situated outside an RCM’s urbanization perimeters, it may be withdrawn only if it both meets the government’s expectations and meets the criteria set out in the Policy Direction; however, it must also be justified by the RCM having regard to all government land use and development policies. The Policy Direction also provides that once the incompatible territory has been defined and delimited, the RCM may also add an additional protective strip that may be 600 to 1,000 metres wide, based on the type of territory withdrawn.
  2. Knowing and taking into account the concerns of the community – There must be coordination among all actors concerned, with the aim of the RCM reconciling their various issues; the RCM must therefore take the necessary steps to properly inform and consult all of the actors concerned.[8]
  3. Knowing and taking into account mining rights – The RCM must know and take into account the existing mining rights within its territory in identifying and delimiting mining-incompatible territories. The Policy Direction invites RCMs that engage in this exercise to take into consideration the impact of withdrawing territory from mining while delimiting mining-incompatible territories, in particular because of the economic benefits associated with mining.[9]

One key expectation stems from the government’s second objective: regulating the establishment of sensitive uses near mining sites.[10] The RCM must therefore provide measures in its Plan relating to the occupation of land, to avoid such uses being established near mine sites. Examples of such measures could be maintaining a strip of woodland or a buffer zone around the territory in question.

Transitional provisions and next steps

Since the Amending Act came into force, the urbanization perimeters of municipalities reproduced on the map of mining titles and published on the MERN website, are withdrawn from mining, with the exception of land where mining titles were obtained prior to that date. An RCM that wants to exercise the power of withdrawal provided in section 6 of the LUPDA must therefore identify the territories that it wishes to withdraw from mining by delimiting them on maps and incorporating those maps into its Plan.

We would note that the exercise of an RCM identifying and delimiting mining-incompatible territories may be carried out only by adopting a by-law, following the process set out in the LUPDA, and not by adopting a simple interim by-law. In addition, the by-law amending the Plan must be consistent with the government policy directions set out in, inter alia, the Policy Direction. Under the procedure established by the LUPDA, the MAMOT must, within 60 days after receiving the by-law amending the Plan, give its opinion as to the consistency of the amendment with government policy directions.[11] An amendment will be automatically found to be inconsistent if the MAMOT has received from the Minister of Energy and Natural Resources (the “Minister”) an opinion, with reasons, stating that the withdrawal is inconsistent with government policy directions.[12]

During the process for an RCM to adopt a by-law amending its Plan, the Minister may temporarily suspend, for a period of six months, the granting of new mining titles on the territory in question.[13] In order to do this, the RCM must have submitted the files to the Minister containing geometric data for the territories it will be proposing in the public consultation provided for in the LUPDA[14] in order to proceed with adopting the by-law amending its Plan.

Protection of vested rights

Obviously, withdrawing mining-incompatible territories may have negative effects on the development of mineral resources, since withdrawal will prevent any new mining exploration right being granted for mineral substances that are part of the domain of the State. That being said, the Act provides for maintaining existing mining rights in those territories, on the condition that the requirements set out in the Act have been met.[15] When a claim was issued prior to the coming into force of the amended Plan and it lies, in whole or in part, within a mining-incompatible territory, the Act provides that the claim may be renewed only if work is performed on the claim during any term occurring after the delimitation of that territory.[16] It is also important to note that the other existing mining rights (for example, mining concessions or mining leases) that lie inside a territory withdrawn from mining activity will not be affected by the withdrawal and may be exercised by their holders with no additional obligations.

Does the Act take precedence?

It is curious to note that in spite of these significant legislative changes, the legislature did not see fit to repeal the provision of the LUPDA holding that a provision of that act, a metropolitan plan, an Plan, a by-law or interim control by-law, or a zoning, subdivision or building by‑law has the effect of preventing the staking or designation on a map of a claim, or exploration or search for or the development or exploration of mineral substances or underground reservoirs, carried on in accordance with the Act.[17] Could a holder of a mining right impacted by an amended Plan someday invoke this provision of the LUPDA to challenge the decision of an RCM? The legislature may have thought there was no inconsistency between the scheme laid down in the LUPDA and the scheme in the Act, but we will be monitoring developments on this issue closely.