Environment

Principal applicable environmental laws

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The mining industry in Canada is subject to both federal and provincial environmental laws. Municipalities have also become more involved in environmental regulation, and as such, municipal by-laws or permitting requirements within a municipal jurisdiction may also need to be considered prior to commencing a mining project.

 

The federal government has jurisdiction over environmental matters of an international or interprovincial concern, as well as fisheries, navigable waters, and any dealings with federal lands, which includes First Nation reserves and national parks. Several federal entities regulate environmental aspects of the mining industry, including (1) Fisheries and Oceans Canada, (2) Crown-Indigenous Relations and Northern Affairs Canada, (3) Environment and Climate Change Canada, (4) Natural Resources Canada and (5) Transport Canada. Certain mining projects may be subject to a federal environmental impact assessment under the Impact Assessment Act (2019) (IAA) which came into force in on June 21, 2019 and replaced the Canadian Environmental Assessment Act. The IAA is primarily administered by the new Canadian regulator, the Impact Assessment Agency of Canada, which replaced the Canadian Environmental Assessment Agency at the time of the coming into force of the IAA. Depending on the nature of the project, the Canadian Energy Regulator (which replaced the National Energy Board) and Canadian Nuclear Safety Commission may also be in charge of the assessment.

 

The provinces and territories, with the exception of Nunavut, are generally responsible for environmental matters within their own boundaries. Each province and territory has adopted laws and by-laws regulating, among other things, the extraction and transformation of natural resources, the discharge of mine effluent, atmospheric emissions, waste management, and other environmental impacts. Provinces and territories have also adopted requirements relating to mine closure and reclamation, which are administered by provincial or territorial ministries. Most provinces and territories require an environmental impact assessment to be completed prior to commencing operations. Whether a provincial or federal environmental impact assessment will be required depends on the size and type of project, what kind of approvals are required, and the significance of the potential environmental and socio-economic impacts of the project. Following the environmental assessment, regulators may impose conditions or restrictions on projects to mitigate its environmental impacts.

 

Mining activities are also subject to land use plans that apply to the area. Recently, the Ontario government issued a moratorium on new mines located in designated areas of the Far North of Ontario, which created an additional regulatory requirement of community-based land use plans. The community-based land use plans apply in at least 50 per cent of the Far North’s boreal forest area and will be developed by First Nations and neighbouring communities working alongside the Ministry of Natural Resources. Opening new mines, as well as certain mining activities, require a community-based land use plan in place prior to commencing activities.

Environmental review and permitting process

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

In Canada, environmental review and permitting processes for mining projects come from federal, provincial and territorial governments. The type and size of the project will determine the types of approvals required and whether the project is subject to an environmental assessment under federal or provincial laws. To avoid duplicate environmental assessment processes at both the federal and provincial level, the federal government has entered into cooperation agreements with eight provinces and territories (all except for New Brunswick, Nova Scotia, Prince Edward Island, Northwest Territories and Nunavut) in situations where one project is subject to both federal and provincial assessments. When a proposed project is subject to an environmental assessment in any jurisdiction, the project can not proceed until the assessment is complete and the project has been approved.

 

The federal environmental impact assessment process is provided under the IAA. The IAA came into force on 21 June 2019, replacing the previous Canadian Environmental Assessment Act. This new legislation includes a broader assessment of a projects impacts and has added several new factors to be assessed. A project will be subject to an assessment under the federal IAA if it is considered a ‘designated project’ under the IAA either by being identified as such in the Project List within the Physical Activities Regulations or by Ministerial designation. The Project List describes projects that have the most potential for adverse environmental affects in areas of federal jurisdiction. Major projects within the mining sector can be found on the Project List, and as such, most major mining operations in Canada are subject to an impact assessment under the IAA.

 

If a project is subject to an assessment under the IAA, then the process consists of five stages: (1) a planning stage, where the public and indigenous peoples are able to provide information and participate in planning the assessment; (2) the proponent of the project must submit an impact statement to the Agency; (3) the impact assessment process, which considers the potential environmental, health, social and economic impacts of the proposed project, as well as potential impacts on indigenous rights, before preparing an impact assessment report; (4) a decision is made based off of the report and whether the project’s impacts are in the public interest, and conditions are established for approved projects; and (5) the Agency will oversee compliance following the project’s approval. The impact assessment may be conducted either by the Agency or a by review panel of independent experts appointed by the Minister. The timeframe for impact assessments by the Agency is up to 300 days, while the timeframe for assessments by a review panel is up to 600 days. Additionally, the timeframe for the planning stage is up to 180 days. Meaningful public and indigenous consultation and transparency are key components throughout the impact assessment process.

 

In addition to impact assessments, mining operations must obtain relevant environmental permits. Each province has developed its own environmental permitting regime, and often several different permits are required under different statutes and by different ministries. Examples of permits that may be required include the discharge of waste and waste management, air emissions, use of water, storage of mine tailings, and mine closure plans, among others. Mining operations may also require permits that are provided for in several federal statutes in addition to the IAA, such as the Fisheries Act, the Canadian Navigable Waters Act, or the Explosives Act.

Sustainability

Do government agencies or other institutions in your jurisdiction provide incentives or publish environmental and social governance (ESG) guidelines for green projects?

The Mining Association of Canada’s Towards Sustainable Mining (TSM) Initiative supports mining companies in managing environmental and social risks through its globally recognised sustainability programme in responsible mining. The focus of TSM is on accountability, transparency, and credibility. TSM members commit to a set of guiding principles, and the TSM programme evaluates, independently validates, and publicly reports on eight critical aspects of its members social and environmental performance against 30 different performance indicators. These TSM progress reports are completed annually and are all publicly available. The eight TSM assessment protocols are (1) indigenous and community relationships, (2) safety and health, (3) crisis management and communications planning, (4) preventing child and forced labour, (5) biodiversity conversation management, (6) tailings management, (7) water stewardship and (8) energy use and greenhouse gas emissions management. TSM has allowed mining companies to transform their environmental and social commitments into action, while providing transparency and community outreach.

Closure and remediation process

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

The closure and remediation process for a mining project in Canada is subject to obligations imposed by provinces and territories. As a first step, a mine closure plan will need to be prepared and filed with the applicable province or territory. The mine closure plan should provide an estimate of closure costs as well as financial guarantee that these costs will be covered. The proper method to calculate closure costs and the acceptable forms of financial guarantee will depend on the province or territory.

Restrictions on building tailings or waste dams

What are the restrictions for building tailings or waste dams?

Tailings and waste dams are primarily regulated under provincial and territorial legislation. Alberta, British Columbia, and Quebec have adopted regulations specifically focused on dam safety, whereas other provinces have regulated dams through water management regulations.

Law stated date

Correct on

Give the date on which the information above is accurate.

1 April 2020.