Community Coalition Against Mining Uranium (CCAMU)
Citizens’ Inquiry on the Impacts of the Uranium Cycle
Home Scope of the Inquiry Participants How to participate Counties & Municipalities
About CCAMU CCAMU Supporter Registration Location & Dates Supporting Organizations
   

Free Entry & The Mining Act

Marilyn Crawford

May 1, 2008

This cover letter is related to two submissions to Citizens’ Inquiry into the Impacts of the Uranium Cycle. These submissions fall within the scope of the Inquiry under claim staking and exploration.

One of the submissions relates to the System of Free Entry and describes pertinent sections of the Mining Act. References from the Mining Act and associated regulations are included. The paper also includes assumptions and implications, land use issues and conflicts and recommendations for needed reform of the Act to ensure responsible claim staking and exploration practices.

The second submission is a letter to the Ontario Auditor General, Mr. Jim McCarter, dated September 29, 2006. This letter requests an investigation of issues and concerns relating to prospecting and mineral exploration, mining claim assessment reports, and rehabilitation. The investigation would determine if the Min¬istry of Northern Development and Mines has adequate and effective policies and procedures in place to ensure the safety of the public and health of the environment, and compliance with legislation and its internal policies, and to determine the Ministry’s accountability of value for money. A response from the Auditor General indicates that some of the issues raised relate to a review of recommendations made in the 2005 Auditor General Report. Other issues may be included when the next AG report on Mines and Mineral Development is undertaken. Reports are done every 5 or more years. I am including this letter as a submission to the Citizens’ Inquiry as it outlines issues and gives examples of the impact of exploration and the inability of MNDM to adequately administer the Mining Act and associated regulations to ensure well managed government programs and better accountability to the Legislature and the public.

Thank you for undertaking the Citizens’ Inquiry and providing an opportunity to make a submission to this important forum.

Sincerely,

Marilyn Crawford

________________________

Facts about the Ontario Mining Act: The System of Free Entry

________________________

Office of the Auditor General of Ontario
20 Dundas Street West, 15th Floor
Box 105
Toronto, Ontario M5G 2C2
Telephone: (416) 327-2381
Facsimile: (416) 327-9862
e-mail: comments@auditor.on.ca

September 29, 2006

Dear Mr. Jim McCarter,

This letter provides information related to the Ministry of Northern Development and Mines, Mines and Minerals Program/Division. I am requesting that your office investigate the following issues and concerns relating to prospecting and mineral exploration, mining claim assessment reports, and rehabilitation. The details are based on relevant legislation, conversations and correspondence with MNDM, and a sample review of three assessment reports. Suppositions are included to accentuate potential problems.

The purpose of your investigation would be to determine if the Min¬istry has adequate and effective policies and procedures in place to ensure the safety of the public and health of the environment, and compliance with legislation and its internal policies, and to determine the Ministry’s accountability of value for money. It is requested that you undertake an investigation as soon as possible. Record breaking statistics for increases in claim staking and exploration, and the proposed introduction of paper staking in the fall of 2006 bring these issues to a critical point where an investigation is needed.

Ontario is enjoying record breaking claim staking and exploration. This, juxtaposed with departmental cutbacks and inadequate administration, enforcement and monitoring, may have jeopardized the ability of MNDM staff:
1) To supervise the critical review of assessment reports in a timely manner to ensure compliance with regulations.
o Reports are reviewed primarily to determine the reasonableness of expenditures.
o Regulations do not require a tally on assessment reports, and MNDM does not track volume, area or tonnage of exploration to determine when a threshold for advanced exploration has been reached.
o The Mining and Lands Commissioner can issue, and has issued an order allowing claim holders to operate outside of the regulations requiring reporting. For example, Pending Proceedings Order dated Oct. 20, 2004 for Lydia Diamond Exploration of Canada Ltd.
As a result, assessment work may be applied to the wrong claim. For example, assessment report for physical work, claim SO 840570 and 840571, Sept. 2004. Compliance with regulations is not, or cannot be determined. For example, Lydia Diamond Exploration of Canada Ltd. October 24, 2003 Work Report Summaries and Assessment Reports show extensive trenching, stripping and pitting, use of high pressure water pump, proximity to water bodies (which may reduce the allowable volume or area to 2 500 square or cubic metres). Thresholds for Advanced Exploration may be exceeded. It appears Assessment work can be performed prior to sending a Certificate Confirming Notice of Intention to Perform Assessment Work and later approved. (Example Claim No 1195181 work done from April 1999 to Feb. 2000 and Notice of Intent sent April 14, 2000.)

2) To adhere to the purpose of the Mining Act to encourage exploration for the development of mineral resources.
o It is not a requirement to report all exploration work.
o The Mining and Lands Commissioner can issue, and has issued, an order where reporting is not required.
o MNDM relies on voluntary reporting when a threshold for Advanced Exploration, a closer step to the development of mineral resources, has been reached.
o Volume, area or tonnages of exploration are not tracked to determine when a threshold for advanced exploration has been reached.
As a result, claim holders may file reports to maintain claim(s) in good standing and stop filing when the threshold for advanced exploration is approached or exceeded. In this way, the requirements for closure plan, public notices and rezoning can be avoided.
o Allowing a bank of mining claims to be maintained indefinitely by doing work on a single claim.
o Allowing banked work credits to be applied indefinitely.
o The Mining and Lands Commissioner can issue, and has issued, an order where reporting is not required.
As a result, claims may remain idle for indeterminate periods of time, yet remain in good standing. For example, one hundred and fifty-nine claims held by Lydia Diamond Exploration of Canada Ltd. are maintained in good standing, regardless of the fact that due dates dating back to 2004 have be passed in all except one claim.

3) To adhere to the purpose of the Mining Act to minimize the impact of exploration on public health and safety and the environment through rehabilitation.
o During preliminary or ‘grassroots’ exploration, there is no requirement to rehabilitate and return the land to its former state.
o Exploration sites can be left without an attempt to clean up the site or restore the damage.
o MNDM relies on complaints when landowners want land restored.
o MNDM relies on voluntary rehabilitation by claim holders.
o Assessment reports may not report depths of excavations and/or are not reviewed for potentially hazardous depths.
o If hazards exist as a result of exploration (deep trenches, pits, surface stripping, clear cutting etc.), natural rehabilitation is practiced. Natural rehabilitation may not eliminate hazards.
o There is difficulty in determining hazards on private property in a cost efficient and equitable manner. For example, three inspections have taken place as a result of complaints from Marty Cadieux, landowner in Burgess.
o Each case involving complaints by landowners is treated in isolation, hence creating the potential for inequitable actions.
o Certificate Confirming Notice of Intention to Perform Assessment Work is only required once, prior to the first ground work.
o Assessment reports are not reviewed to identify potential hazards, such as depth of trenches.
o Identified hazards on private properties may be placed in a triage when funds are available to restore land.
o MNDM may be unable to practice prescribed standards for rehabilitation on abandoned sites. Example: abandoned mine set in Bedford district has marginal fencing and inadequate signage for a 5 metre open shaft. An inspection dated 83.06.08 lists the status as “good.”
o Inspections of exploration sites are not mandatory.
o Requests from the public to inspect mining lands for hazards can be, and have been, denied.
o Complaint procedures for restoration on privately owned land are unclear.
o The Mining Act has no definition for a ‘body of water’, yet uses it to determine a reduced threshold for Advanced Exploration.
o The ‘ribbon of life’ around bodies of water is not protected from exploration. Exploration may take place up to the high water mark of a body of water. This contravenes Municipal Official Plans that set restrictions on site alteration and prohibited activities near bodies of water.
o There appears to be no assertion whether historic or successive claim holders are held responsible for restoration of preliminary assessment work after a claim is transferred and restoration is required.
o There is no consideration to require financial assurance to cover costs of restoration by claim holders prior to the commencement of exploration.

As a result, landowners may face exploration activities, such as trenches, surface stripping, drilling, blasting and pits on their land indefinitely and without notification. Physical disturbances may eventually be placed in the Ministry information and ranking system when and if funds become available. It may be that the land is never restored, given that trenches may be considered a low priority compared to other sites. Trenches may fill with standing water, creating safety and health concerns or create a new water course.
The onus is on the landowner to bring situations to the attention of the Ministry. Landowners may be left unaware that they can request an inspection with the potential of having lands restored. It is difficult to prove a mine hazard exists on private property which has no inadvertent access by the public. Landowners must be persistent in their complaints, establish that excavations should be considered hazardous and convince MNDM to make inspections. Inspections and mediating between claim holders have the potential for considerable ‘red tape’ and can be costly and time consuming for an understaffed Ministry. The Ministry may be liable for damages, injuries and/or restoration costs if claims lapse and historic claim holders cannot be found. The Ministry may be liable for injuries and damages on active claims if claimholders do not voluntarily restore sites. There appears to be no provision to hold claim holders accountable if claims holders refuse to eliminate hazards.
Landowners cannot restore land on active claims without permission from the claim holder. There appear so be no effective disciplinary measures, such as denying assessment credits, to ensure restoration, compliance with legislation and to re-enforce the understanding that mining companies may be liable for environmental damage and personal injuries at every step in the mineral extraction process.

4) To establish clear criteria to determine a mine hazard that requires restoration.
o It appears that the Occupational Health and Safety Act, Mines and Mine Development Regulation 854 does not apply to Surface Rights Only (SRO) land under preliminary exploration or when workers are not present. It is unclear why a depth of 3 metres, as found in the OHSA, is used by MNDM to determine a hazard, when the OHSA does not apply.
o It is unclear how Part V11 of the Mining Act, Rehabilitation of Mining Lands relates to preliminary exploration activities.
As a result, a definition for a mine hazard does not appear to be harmonized with other legislation. It is unclear what responsibility and liability for damages and injuries is assumed by the Ministry because it licenses prospectors, encourages exploration activities and does not require restoration.

5) To review the Mining Act and associated regulations for consistency and congruency. Discrepancy exists in:
o Claim Staking Reg. 7/96
o Assessment Work Reg. 6/96
o Minister’s required fees Policy GA 301-9
Discrepancies were brought to the attention of the MNDM in April 2003 showing that claims have been recorded and continue to be recorded based on applications that have been filed with misleading information, fees have been collected outside of the regulations and incorrect assessment values have been assigned. Regulatory changes in 2006 have not corrected the discrepancies and there appears to be no movement to resolve the inconsistencies.

6) To regulate and monitor prospectors to ensure public safety. A prospector’s licence is available to any natural citizen over the age of 18 for $25.50.
o Training and certification are not required.
o Proof of liability insurance is not required.
o Criminal record check is not required.
o Financial review is not done to determine ability to restore land after exploration.
As a result, prospectors are permitted to enter private property, without notification, to prospect, prior to staking. Prospectors are encouraged to stake mining claims and have the right to enter, occupy (including erecting buildings and building roads) and use the land to search for minerals. All of this can take place without liability insurance, without being required, or determining the financial ability of claim holders to restore land. Without criminal record checks, the Ministry creates vulnerability for the public with the potential of exposing landowners to criminal elements.

While new legislation to be adopted in the fall of 2006 may require consent from land owners prior to ground exploration in certain defined areas with improvements or developments, such fails to deal with the described issues.

Please consider the above points and review the attached related information. It is anticipated that an investigation by the Office of the Auditor General will contribute to better-managed government programs and better accountability to the Legislature and the public.

Please contact me if you require additional information or clarification. I would appreciate receiving a response to indicate the direction and timeline that you will be undertaking to address these issues.

Sincerely,
Marilyn Crawford

Link to Announcement re: Proceeds Pending Order, Lydia Diamond Exploration of Canada:
http://www.lydiadiamonds.ca/pdf/Lydia%20Press%20Release-Nov-19-2004.pdf
Link to Mining Claim Abstract Claim 1195181 and

http://www.mci.mndm.gov.on.ca/Claims/Cf_Claims/clm_csr.cfm
Link to Client Report Client Report Lydia Diamond Exploration of Canada:
http://www.mci.mndm.gov.on.ca/Claims/Cf_Claims/clm_clr.cfm
Appendixes are available upon request
Appendix B March 2006 letter to MNDM (and response from MNDM)
Appendix C1 Open letters to Minister Rick Bartolucci
Appendix C2 Nov. and May 2006 letters to the Premier
Appendix C3 Marty's intro to binder
Appendix D1 letter to MNDM Sent by email April 13, 2003 (and response from MNDM)

cc Premier McGuinty
Minister Bartolucci, MNDM
Deputy Minister Suzanne Hebert, MNDM
Minister Laurel Broten, Minister of Environment
Minister Leona Dombrowski, MPP
Scott Reid, MP
John Tory, Leader of the Opposition