August 2007

Eye on Business

Access roads to mining sites

By I. Xenopoulos and J. Gagné

For most mine development projects, access by road to a mine site is often an important aspect at the feasibility and impact study (including on environmental aspects), consultation (in particular, with Native communities), and implementation stages. This is particularly so for a mining site located on lands of the domain of the State of the Province of Quebec (State Lands) with no direct access to an already existing public road.

The following paragraphs provide a brief overview of the rules applicable to certain types of roads, more particularly, relevant to access to such a mine development project, focusing mainly on mining and forest roads. For the purposes hereof, we assume that the mining company involved in the development of a mining project has obtained the appropriate mining leases from the Minister of Natural Resources and Wildlife (MNRW) for those lands where the mine and mining facilities will be located.

Act Respecting the Lands in the Domain of the State (State Lands Act)

State Lands in Quebec are generally under the jurisdiction of the MNRW, except when otherwise determined by law. The State Lands Act specifies that no one can construct or improve a road other than a forest or mining road on State Lands without prior authorization from the MNRW.

In general, roads constructed on State Lands are part of the public domain and all have access to such roads subject to the power of the MNRW to restrict or prohibit such access when justified by public interest. The State Lands Act also allows the MNRW to sell or lease lands under his authority as well as grant rights of way (10 years renewable) and servitudes.

Mining Act

Generally, the Minister of Transport (MOT) is responsible for mining roads. He may construct, improve, and maintain (or cause to be constructed, improved, or maintained) a mining road (including bridges or other structures) for the purposes of facilitating the carrying on of mining activities. The MOT may have the owners of mineral substances or holders of mining rights, at whose request the work is being done, pay part of the costs or delegate its construction or improvement and subsequent maintenance to such owners or holders, at their expense (or shared with other interested stakeholders).

Mining roads, even if paid by a mining company, form part of the public roads network accessible to all, subject to MOT’s power to restrict or prohibit access for public interest reasons, and are subject to application of the Highway Safety Code unless exemptions are granted by the MOT. A local municipality or a Native community may also be authorized by the MOT to maintain and repair a mining road, or part thereof, in its territory.

Secondary mining roads are those designated as such by the government of Quebec and are under the responsibility of the MNRW rather than the MOT, with the same powers as those discussed above for mining roads. Plans and standards of construction, improvement, and maintenance of such roads must also be approved by the MOT.

Secondary mining roads are also open to the public, subject to MNRW’s power to restrict or prohibit access when required by the public interest. However, the traffic and safety provisions of the Quebec Highway Safety Code do not generally apply to such roads unless the Government of Quebec, by regulation, decides otherwise. A user of such a road may not sue for damages on grounds of faulty construction, improvement, or maintenance of such a road.

Typically, a mining company will enter into negotiations with either the MOT or the MNRW, present its plans and standards for the road, obtain approval from the MOT, or, in the case of a secondary mining road, from MNRW and MOT, and sign an agreement whereby the company will agree to construct or improve and maintain the road at its expense and at terms and conditions set forth in the agreement, which may include provision with respect to recuperating part of the costs from other stakeholders who wish to use the road or with respect to restrictions to access.

The governmental authorities have certain technical requirements that need to be complied with in order to obtain approval of the plans, and such requirements may be more stringent than those for forest roads referred to below. Thus, in some circumstances, construction of a forest road rather than a mining road may be preferred.

Forest Act

A forest road is a road constructed or used for purposes of forest management activities, which include the installation and maintenance of infrastructures (including roads) and all other activities of a holder of a management permit under the Forest Act affecting productivity of a forest area. One of the classes of forest management permits allows cutting and harvesting timber for purposes of exercising mining rights held under the Mining Act. Accordingly, it is possible for a mining company to obtain specific authorization in such permit from the MNRW to construct or improve a forest road. As in the case of a mining road, a municipality may see to maintenance and repair of all or part of a forest road in its territory when authorization is obtained from the MNRW.

Note that access to forest roads is granted to all unless the MNRW imposes restrictions or prohibitions when required by public interest. Claims for damages resulting from a defect in the construction, improvement, or maintenance of the road may not be made by any person using a forest road.

The Forest Act adds that prior authorization from MNRW for roads (for example, a mining road) other than forest roads constructed in a forest area is required for the width of the road’s right of way and the destination of timber harvested in connection with the road’s construction. A holder of such an authorization must comply with prescribed forest management standards and measuring of harvested timber.

Conclusion

Other laws or agreements, for example, the Quebec Environment Quality Act, the Canada Navigable Waters Protection Act, and the Quebec James Bay and Northern Quebec Agreement, may also apply.

Furthermore, various other factors will need to be taken into account, for example, distance from the closest public road or other relevant facility, various Native people issues, including when applicable, category of lands to be crossed, rights and property of others on the parcels of State Lands to be crossed, as well as the needs and, when possible, participation of other stakeholders either at time of construction or improvement or while a company is maintaining the road.

It is important to study and properly structure this aspect of a mine development project, as the decisions taken will have repercussions throughout the life of the mine.


Ianny Xenopoulos and Jean Gagné work for Fasken Martineau DuMoulin LLP.

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