[author: David Hunter]
This article was prepared by David Hunter, Nalin Sahni and George McKibbon (McKibbon Wakefield Inc.)
Many of our mining clients do not appreciate the role of the Ministry of Natural Resources (“MNR”) and the regulation of Crown land through the Public Lands Act. While licenses for advanced prospecting and mine development are secured through the Mining Act, this is not the case with other critical infrastructure. Miners need to manage the requirements of the Public Lands Act that cover the approval of new access roads, electricity generation sites, transmission lines, and other infrastructure indispensible for developing mining operations on Crown land.
Common areas of governmental regulation that miners deal with such as securities, mining and environmental law have well worn rules contained in statutes, regulations or highly prescriptive guidance documents. This is not the case with the MNR and the Public Lands Act. The MNR relies far more on setting broad policy directions through guidance documents and on the discretion of staff in each field office than on prescriptive rules. There are also no appeal provisions under the Public Lands Act so there is no substantial body of legal decisions to help guide future decision-making. Understanding the MNR and the Public Lands Act is the key to obtaining approvals for mine infrastructure on Crown land. This will be especially true in the next few years with the MNR facing substantial staffing and budget cuts.
The MNR uses two main tools to determine what mining infrastructure is allowed in different locations:
1. the Crown Land Use Policy Atlas (the “Atlas”) and
2. the Guide to Crown Land Use Planning (the “Planning Guide”).
The Crown Land Use Policy Atlas
The Atlas sets our the land use designations, permitted uses, and Crown policies that apply to all Crown lands except for the northernmost 42% of Ontario which are governed by the Far North Act (See our July 2012 article on this issue).
The land use designations in the Atlas are divided into the following categories: Provincial Parks, Conservation Reserves, Provincial Wildlife Areas, Forest Reserves, Enhanced Management Areas, Wilderness Areas, and General Use Areas. As these names suggest, the designations represent the MNR’s various legislative and policy mandates. The exception here are General Use Areas that cover all lands not otherwise designated. Miners need to know and cope with the designation of any area where they may wish to develop infrastructure since this will dictate the uses permitted by MNR and any policies that may apply.
The Guide to Crown Land Use Planning
The Planning Guide describes how each of the different designations in the Atlas were developed and how the Atlas is to be applied in dealing with applications for access roads, transmission lines, and other infrastructure. All MNR polices must be consistent with both the Public Lands Act and the Atlas. This is particularly important since MNR staff often vigorously adhere to policies that do not have the force of law but that MNR staff view as binding.
In some circumstances there is an added complication. Regulations under the Public Lands Act require that the older MNR District Land Use Guidelines must be applied together with the Atlas in particular situations such as applications for road construction and servicing. These provisions can make it difficult for miners to know exactly what policy applies in their particular situation. These MNR practices reflect and are a continuation of past MNR policies.
Interaction with Other Legislation
In the real word where miners are applying for different approvals under different Ontario statutes, coordination between Ministries can be difficult. While there are administrative and policy mechanisms in place to enhance coordination between the Mining Act and the Public Lands Act regarding parks and conservation reserves, there is no explicit coordination for the development of access roads, transmission lines, and other mining infrastructure in areas other than the Far North. Further, unlike with municipal official plans, there is no requirement that the Altas conform to the Growth Plan for Northern Ontario. The Atlas is exempt from this requirement and does not interact in this respect with Ontario’s Planning Act.
The legislative and policy silos that exist between mining, economic development and the Public Lands Act will create difficulty for miners in obtaining the necessary approvals from each government ministry.
The FMC Mining Group will prepare a future article on how the Public Lands Act provides for the disposition, occupancy, and use of lands under various approvals such as road construction.