MNDM Releases Draft Mining Class Environmental Assessment For Comment

Article by David Hunter, Nalin Sahni and George McKibbon (McKibbon Wakefield Inc.)

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, 2012.1 The Mining Class EA replaces two declaration orders on discretionary land tenure decision‐making and mine rehabilitation.2 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...