Exclusion of Time: For Performing and/or Filing Assessment Work

Notice:

If you are having difficulty meeting assessment work obligations during the COVID-19 crisis, you can take advantage of our Extension of Time Policy and the Exclusion of Time Policy.

If you have questions, email us at pro.ndm@ontario.ca, or call 1-888-415-9845. Voicemail messages left after hours will be returned the next business day.


The ministry is in the process of reviewing and updating its policies to reflect recent changes to the Mining Act as they relate to the implementation of online mining claim registration and an electronic Mining Lands Administration System (MLAS). Until further notice, visitors should consider this content to be in transition and subject to modifications.

Purpose

The purpose of this policy is to provide direction to claim holders and decision-makers with respect to how a Recorder or the Minister will consider requests for an exclusion of time pursuant section 67 of the Mining Act (the Act), which authorizes a Recorder or the Minister to grant an order excluding a period of time within which work on a mining claim must be performed or reported.

Background

Claim holders must satisfy annual required units of assessment work to keep their claims in good standing. They must perform eligible assessment (exploration) work and submit an assessment work report through the Mining Lands Administration System (MLAS). The Minister reviews the report and assigns assessment work credits as set out in the Assessment Work Regulation (O. Reg. 65/18). The assessment work credits must be applied to a mining claim on or before the claim’s “due date” to satisfy the required units of assessment work and prevent the claim from forfeiting.

Claim holders can use the MLAS application to apply assessment work credits from the reserve for a mining claim or allocate assessment work credits from the reserve for contiguous mining lands to satisfy the annual required units of assessment work. Under certain conditions, claim holders may make payments in place of assessment work and apply those payments to satisfy the annual required units of assessment work.

Claim holders are responsible for keeping their mining claims in good standing by satisfying the annual required units of assessment work for their mining claims, or by requesting a discretionary order for an exclusion of time. In certain circumstances, an order for an extension of time under section 73 of the Act may be requested, which is not covered in this policy (please refer to the Extension of Time Policy).

An order for an exclusion of time removes a period of time from the computation of time within which the required units of assessment work must be satisfied (e.g. the time for performing assessment work, reporting it and using the assigned credits to satisfy the annual required units of assessment work). This results in a new anniversary date being set for the mining claim. An exclusion of time order also relieves the claim holder of the requirement to carry out assessment work that would otherwise be required to satisfy the required units of assessment work for the period of time that is excluded in the order. This type of order is discretionary and will only be granted when claim holders have been prevented from performing or reporting assessment work due to exceptional circumstances outside of their control.

Claim holders must demonstrate all available options to keep the claim in good standing have been exhausted. The claim holder must consider the following options before an application for an exclusion of time will be evaluated:

Types of Exclusion of Time Orders

There are two different types of exclusion of time orders:

  1. orders by Recorder or the Mining and Lands Tribunal as per subsection 67(3) of the Act; and
  2. orders by the Minister as per subsection 67(4) of the Act.

This policy applies to both types of orders; those sought from the Recorder and from the Minister. For more information about obtaining an order excluding time from the Mining and Lands Tribunal, please contact the Registrar, Office of the Mining and Lands Tribunal.

Order by the Recorder

Under subsection 67(3) of the Act, a Recorder may make an order excluding the following periods of time:

NOTE: situations where the claim holder has chosen to delay or defer work will not be considered for a Recorder’s exclusion of time order; however, a Minister’s exclusion of time order may be considered where there are special circumstances.

The claim holder must provide satisfactory evidence of the refusal, prohibition, deferral or delay that prevented the assessment work from being performed. This evidence may include written statements, orders or other documents produced by the Ministry of Energy, Northern Development and Mines, Ministry of Natural Resources and Forestry or any other relevant ministry.

The claim holder must demonstrate that an assessment work program was planned but could not be performed due to one of the circumstances noted in subsection 67(3) of the Act. The planned activity must have been directly impacted by the refusal, prohibition, deferral or delay described by the claim holder (e.g. a three-week summer restriction under the Forest Fire Prevention Act would not justify an exclusion of time for a project designed for winter months).

The Recorder will review the evidence and determine, in accordance with the limits in subsection 67(3) of the Act, the period of time to be excluded.

Order by the Minister

Under subsection 67(4) of the Act, the Minister may make an order for an exclusion of time, if the Minister is satisfied that special circumstances exist, which prevented the claim holder from performing and/or reporting work on a mining claim. Claim holders must submit a request in writing that substantiates the special circumstances that prevented work from being performed and/or filed.

An application for an exclusion of time under subsection 67(4) of the Act can only be made within the 30-day period prior to the due date of the claim. In the interest of keeping land packages together, the claim holder may include contiguous claims for consideration in the request for an order excluding time, providing the claim holder intends to allocate assessment credits from the proposed work program to the contiguous mining claims, and the contiguous mining claims are due within 30 days of the application.

Special circumstances where exclusions of time may be granted include:

Natural Disasters and Health Concerns

The Minister may make an order excluding a period of time if a natural disaster, illness, injury or other medical condition has prevented planned work activities from being performed. The claim holder must provide evidence that demonstrates the condition or event that prevented the work from being performed, the duration of the condition or event, and the previously-planned work program that was obstructed by the condition or event.

An illness, personal injury or medical condition must have caused a physical inability that rendered the claim holder incapable of carrying out the assessment work or making decisions about alternatives to work, payment in place of work or distributing credits from reserves. Medical and health issues will generally only be considered in the context of an unanticipated critical event. If the medical or health issues are chronic or long-standing, the claim holder may reasonably be expected to make other arrangements to complete the assessment work (e.g. hire a contractor).

Aboriginal Engagement/Consultation:

The Mining Act regulates early exploration activities through an exploration plan and exploration permit system, which includes requirements for Aboriginal consultation. The Exploration Plans and Exploration Permits regulation sets out processes that represent a reasonable and appropriate way to ensure meaningful Aboriginal consultation occurs at the early exploration stage.

If a claim holder has not followed the exploration plans and permits process that is required to perform certain assessment work needed to keep a claim in good standing, then apart from certain exceptional situations, an exclusion of time order based on difficulties with Aboriginal consultation will not be available.

In very exceptional circumstances, the Minister may make an order excluding a period of time if the claim holder has not submitted an exploration plan or an exploration permit application. The decision to make an order under these conditions will be determined by the Minister on a case by case basis in extremely rare situations, where following the exploration plan and exploration permit process would have serious negative repercussions. For example, if it is reasonably likely that the submission of an exploration plan or an exploration permit application could cause irrevocable harm to the relationship between the claim holder and an Aboriginal community, jeopardizing the immediate or long-term feasibility of a project on a claim.

Supporting an Exclusion Request

A claim holder seeking an exclusion of time must be prepared to support the request.

An application for an exclusion of time must describe:

Reasonable Efforts to Meet Assessment Work Requirements

The Minister will consider supporting documents and other evidence submitted to demonstrate that the claim holder has made good faith efforts to complete the assessment work required to satisfy the annual units of assessment work.

Evidence that may be considered by the Minister includes:

Status of Mining Claim Pending the Review of an Application for Exclusion of Time

During the period that a request for a Minister’s exclusion of time is under consideration, subsection 67(6) of the Act provides that the claim holder’s interest in the mining claim does not cease and the claim does not forfeit under section 72 of the Act. Where the Minister does not order an exclusion of time, and the decision is made after the anniversary date of the claim, the claim holder’s interest in the claim will cease and the claim will forfeit pursuant to section 72 of the Act.

Due Date and Anniversary Date

When issuing an exclusion of time order, the Minister or Recorder will set a new due date and change the anniversary date of the claim to correspond with the new due date. Pursuant to subsection 67(2) of the Act, the anniversary date may be set to a later date up to, but not exceeding, the number of days that have been excluded.

The Recorder or Minister will not set a new due date that is more than two years from the date the order is granted.

Example 1

Claim due date:
September 15, 2018
Claim anniversary date:
September 15th of each year
Assessment year:
September 16, 2017 to September 15, 2018

Recorder or Minister excludes a total of 45 days from the time within which work on the mining claim must be performed and reported and sets a new anniversary date:

New claim due date:
October 30, 2018
New claim anniversary date:
October 30th of each year
Next Assessment year:
October 31, 2018 to October 30, 2019

Example 2

Claim due date:
May 1, 2016
Claim anniversary date:
May 1st of each year
Assessment year:
May 2, 2015 to May 1, 2016

The Director of Exploration put a temporary hold on the process to obtain an exploration permit for the mining claim from May 1, 2015 to November 1, 2017. On November 1, 2017, the Recorder grants an order excluding the period of time the permit application was on temporary hold (2 ½ years) from the time within which work on the mining claim must be performed and reported and sets a new due date and anniversary date:

New claim due date:
November 1, 2019
New claim anniversary date:
November 1st of each year
New assessment year:
November 2, 2018 to November 1, 2019

Circumstances that do not Support an Exclusion of Time Order

The following circumstances do not support an exclusion of time order:

Submitting an Application

If the claim holder is applying for an exclusion of time order because a Director of Exploration has put a temporary hold on the process to obtain an exploration permit that is required to carry out assessment work on a mining claim to meet the required units of assessment work, the claim holder may apply for an order excluding time through MLAS. The application process is described in the ministry’s Claim Management Directive.

In all other circumstances, applications for an exclusion of time order from a Recorder or the Minister pursuant to subsections 67 (3) and (4) of the Act must be submitted in writing to the Provincial Recording Office.

Contact Mining Lands Branch

For any inquiries about exclusions of time, please contact:

Ministry of Energy, Northern Development and Mines
Mining Lands Section, Technical Services Unit
B-3, 933 Ramsey Lake Road
Willet Green Miller Centre
Sudbury ON, P3E 6B5
Toll Free Telephone: 1-888-415-9845
Toll Free Fax: 1-877-670-1444
Email: pro.ndm@ontario


Authority Detail

Mining Act

Exclusion of Time and Work

67(1)   A holder may, in accordance with this section, obtain an order,

Anniversary Date Changed

67(2)   Where a period of time for doing something under this Act is excluded, the next anniversary date after the exclusion in respect of the mining claim involved may be a date that falls after the anniversary date that would have occurred, except for this provision, by up to the number of days that equal the number of days of the exclusion, and all subsequent anniversary dates shall be adjusted accordingly. 2009, c. 21, s. 35.”

Order by recorder or Tribunal

67(3)   The recorder of the Tribunal may make an order prescribed in subsection (1) if the holder provides the recorder or Tribunal with satisfactory evidence of a refusal, prohibition, deferral or delay referred to in this section but the order may exclude only the following periods of time:

Minister’s order

67 (4)   The Minister may make an order described in subsection (1) if the holder applies to the Minister within 30 days before the anniversary date and the Minister is satisfied that special circumstances exist. 2009, c. 21, s. 35.”

When order may be made

67 (5)   The Minister may make an order under subsection (4) before or after the anniversary date. 2009, c. 21, s. 35.”

Claim Holders Interest Continues

67 (6   If a holder applies for an order under subsection (4) within the required time, then the holder’s interest in the mining claim shall not cease and the claim shall not forfeit under section 72 unless and until the Minister decides not to make the order. 2017, c. 6, Sched. 2, s. 44.”

Notice

67 (7)   If the Minister decides not to make an order under subsection (4), the Minister shall notify the claim holder in writing and, if the decision is made after the anniversary date of the mining claim, the claim holder’s interest in the mining claim shall be deemed to have ceased under section 72, and the mining claim shall be deemed to have been forfeited under that section, as of the anniversary date of the mining claim. 2017, c. 6, Sched. 2, s. 44.”


Terms and Definitions

Mining Act

Anniversary Date”, when referring to a mining claim means,

Ontario Regulation 65/18: Assessment Work

Due Date”, in relation to a mining claim, means the date by which a claim holder is required to distribute assessment work credits to a mining claim for the purposes of the system of assessment work credits described in Part IV, as that date is determined under section 10.