Mining projects in Ontario are supposed to be subjected to two levels of Environmental Assessment: Federal and Provincial.
The federal environmental assessment process is triggered if the mining project or any parts of it will require federal permits or authorizations under the Fisheries Act, the Explosives Act, the Navigable Waters Act, etc. We have increasingly seen that federal departments are only looking at those parts of the mine project which will require the specific permit from them, and – despite the language of the Canadian Environmental Assessment Act – are not reviewing large mining projects at all. Generally the federal government assumes that the Province reviews the mine itself.
However, in Ontario, the provincial environmental assessment of mines will rarely take place at all, because of a little known and poorly understood exemption called “Declaration Order MNDM-3/3”. This Declaration Order, in place since 2003, exempts the granting (or renewal) of mining claims and licences on Crown land from the EA process.
On June 30, 2006, the Minister of the Environment approved another extension (after having already approved a 2-year extension to the 1-year interim Declaration Order in 2004) of the MNDM (Ministry of Northern Development and Mines) Declaration Order regarding Disposition of Crown Resources (also known as MNDM-3/3). The order can be found at: http://www.ene.gov.on.ca/envision/env_reg/ea/english/EAs/mndm3_3.htm.
The original exemption order (MNR 26/7) was given in 1981 and was developed during discussions about how to streamline Environmental Assessment for any disposition of Crown resources, including resource extraction licences, that were then the responsibility of the Ministry of Natural Resources (MNR).
Environmental groups at that time were more concerned about logging than about mining, and – with little public attention – mining claims and licences were covered by the exemption order. A lengthy, contested debate lead to a process whereby most logging licences are now determined by “Class EAs”; that is they are treated as a group, rather than individually.
There was no similar public process for mining, and the granting of Crown land for claims and licences remained subject to the exemption order and exempt from any environmental review (except where the conditions of the exemption, the Mining Act approvals process, or specific aspects of the project such as road and power supply, come under the jurisdiction of other ministries). However, when the Ontario Ministry of Northern Development and Mines was created and made responsible for issuing mining claims and licences, the MNR Exemption Order might no longer apply. The government responded with a special order to ensure that mining licences and claims remained exempt from individual EAs.
The Declaration Order stated: “the Crown and the public will be interfered with and damaged by the undue time and expense required to prepare environmental assessments for undertakings that are expected to have insignificant environmental effects on the environment.”
In May, 2003, the Ontario Ministry of the Environment posted a notice to the Environmental Bill of Rights registry (EBR) regarding the parts of the original exemption order that apply to mining (#RA03E0015). There were 5 comments received from the public, including from MiningWatch Canada. All objected to the Declaration Order for Mining. All stated that EAs for mining were warranted given the enormous environmental footprint that mining created.
An "interim order" for one year was granted to permit mining to continue under the status quo while MoE and MNDM would develop a long term environmental assessment strategy. It has never been completed.
The MNDM Declaration Order (MNDM-3/2) was extended on June 8, 2004 (without public consultation that we are aware of, and was not posted to the Environmental Bill of Rights [EBR] Registry) and expired on June 11, 2006. Now, the Declaration Order (MNDM-3/3) is further extended, as of June 30, 2006, for three more years. Again, there has been no public consultation and no posting to the EBR Registry.
There is provision in the Declaration Order for the Minister of the Environment to go to Cabinet and request that a mining project be subject to individual EA, despite the Declaration Order, but nothing happens automatically.
We are concerned that the environmental and social impacts of mining at all stages (prospecting, exploration, development, operations, and closure) have lasting and serious consequences, and that the issuing of mining licences and the administration of the Mining Act should be subject to individual environmental assessments. This Declaration Order perpetuates a situation where mining activity does not automatically get the appropriate scrutiny, and we object most strenuously to it. The Declaration Order understates the environmental consequences of mining and decreases government responsibility and capacity to restrain its more egregious impacts. It is outrageous.