Norton Rose Fulbright Canada LLP
The Quebec Mining Act has been substantially amended and modernized by Bill 70, which the Quebec National Assembly adopted on December 9, 2013. This fourth attempt to update Quebec’s mining legislation follows on the heels of the defeat of Bill 43 and that of Bills 79 and 14 in previous legislative sessions. The amended Act came into force on December 10, 2013, saving a few sections which will come into force at a later date.
The Act now contains three provisions that relate specifically to aboriginal communities, including a provision that the Minister is to draw up an aboriginal community consultation policy specific to the mining sector. The Act also states that it is to be construed in a manner consistent with the obligation to consult aboriginal communities and requires the Minister to consult aboriginal communities separately if the circumstances so warrant. What those circumstances might be, however, has not been clarified.
As proposed in Bills 43 and 14, the Act will require claim holders to notify the landowner concerned that they have obtained a claim, within 60 days after registering the claim. The procedure for such notification will be set out in a regulation. Where the claim is on the territory of a local municipality, the claim holder must also inform the municipality and the landowner at least 30 days before performing work. Claim holders will also have to submit to the Minister an annual plan of work and an annual report on all work performed.
An application for a mining lease will have to be accompanied by a project feasibility study as well as a scoping and market study as regards processing in Quebec.
The Minister will have the power, before mining operations begin and 20 years after they begin, on reasonable grounds, to require maximization of the economic spinoffs within Quebec of mining the mineral resources authorized.
On each anniversary date of a mining lease or mining concession, the lessee or grantee will have to send the Minister a report showing the quantity of ore extracted during the previous year, its value, the duties paid under the Mining Tax Act during that period and the overall contributions paid.
The lessee under a mining lease must also establish a monitoring committee whose role is described in rather vague terms as “fostering the involvement of the local community in the project as a whole.” The committee will apparently have power to consider the economic, social and environmental aspects of the mining project to which the lease pertains.
The grantee under a mining concession will have to start mining operations by December 10, 2018. Before starting such work, the grantee will have to prepare a scoping and market study for processing within Quebec. Where there are reasonable grounds for doing so, the Government may require maximization of the economic spinoffs within Quebec of exploiting the resources extracted from the concession.
The Act, which is guided by the principle of sustainable development, sets out certain additional environmental conditions that must be satisfied prior to the grant of a mining lease. Mining leases will in future require the prior approval of a rehabilitation and restoration plan and the issue of a certificate of authorization under the Environment Quality Act, unless the time needed to obtain a certificate is unreasonable. In addition, the applicant for a mining lease for a metal mine project where the mine has a production capacity of less than 2,000 metric tons per day will have to hold a public consultation. The report on the consultation will have to be sent to the Minister.
The Minister must make rehabilitation and restoration plans public and register them in the public register of real and immovable mining rights for public information and consultation purposes. This forms part of the environmental impact assessment and review procedure provided for in the Environment Quality Act.
Rehabilitation and restoration work must begin within three years after operations cease. Exceptionally, the Minister may require work to begin within a shorter period, or authorize one or more extensions. In the case of an open pit mine, the rehabilitation and restoration plan must include a backfill feasibility study.
Public interest criterion
In a change from Bill 43, the Minister may not refuse an application for a lease or terminate a lease for public interest reasons. This limits the Minister’s power to interfere in applications for mining leases.
Leases to mine surface mineral substances
As contemplated in Bill 43, a public consultation will be required for the grant of a peat lease or a lease to mine surface mineral substances that is necessary to carry on an industrial activity or to engage in commercial export. The Minister may impose additional measures if the public consultation is not held in accordance with the regulations. The Minister may also attach conditions to the lease to avoid conflicts with other uses of the territory and to follow up on comments received during the public consultation.
In the public interest, the Minister may refuse an application for a sand and gravel lease. Since the concept of public interest is quite broad, the Minister will have considerable discretion in granting such leases. The Minister may also, for similar reasons, revoke a sand, gravel or stone lease or modify its limits. The Minister must pay compensation to the lessee if a lease on a substitute parcel of land is not or cannot be offered for any reason.
Limit on power of expropriation
Under the previous act, the holder of mining rights or the owner of mineral substances (except in cases where land was leased by the State) was entitled to expropriate any property in order to access the land or for mining exploration or operations.
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