Regulatory Submissions

Canadians are seeking environmentally-friendly products and services due to concerns about the environment and climate change. However, misleading environmental ads and claims, known as greenwashing, can mislead consumers and hinder competition and innovation.

Bill C 59 - The Fall Economic Statement Implementation Act, 2023 took effect on June 20, 2024, which included changes to the Competition Act specifically to target greenwashing. Businesses are now required to have testing or substantiation, with internationally recognized methodology, to support certain environmental claims.

The Competition Bureau is assessing the impact of these requirements. It expects to provide guidance that will offer transparency and predictability for the business and the legal communities in the enforcement of the law. On July 22, 2024, the Competition Bureau launched a public consultation on these new provisions aimed at greenwashing, which will inform its future enforcement guidance about environmental claims.

The Impact Assessment Act’s Physical Activities Regulations, commonly known as the Project List, was required for review in fall 2024 as part of a five year prescribed review period. The Project List identifies the types of activities that are considered “designated projects” and therefore subject to an Impact Assessment.

Mining projects currently make up 50% of all projects subject to Impact Assessments through the Act; mines and minerals specifically are represented 2.4 times more than the next highest sector (oil and gas). Despite Canada’s critical mineral alliances and national strategy, and the 388 new mines needed by 2030 to meet international EV pledges, new mine development continues to be disproportionately affected, and impeded, by the IA process. PDAC provided recommendations to reduce the over-representation of mines and minerals in the IA designation process, and to support a process that respects provincial and territorial jurisdiction, realistically reflects the potential for adverse project effects in federal jurisdiction, and does not overburden proponents, Indigenous communities, and government resources.

In August 2024, Finance Canada published for consultation various legislative proposals to address Budget 2024 measures, including two proposals to amend the legislation related to tax incentives that support the mineral sector.

One proposal aims to offset an increase in Alternative Minimum Tax (AMT) and the capital gains inclusion rate by amending parts of the AMT. Specifically, the key proposed change eliminates (For AMT calculation) the requirement to add back deductions obtained by purchasing flow-through shares (FTS).

The second proposal amends the legislation related to the Clean Technology Manufacturing Investment Tax Credit (CTM-ITC) – a new incentive that provides a refundable 30% tax credit for capital investments in various eligible activities to extract and process six qualified materials that are essential for clean technologies (Copper, nickel, lithium, cobalt, graphite and rare earth elements). Under the original legislation, qualified materials should account for at least 90% of production to be eligible for the credit. PDAC and other industry stakeholders recommended that due to the polymetallic nature of deposits in Canada, such a high threshold would preclude the vast majority of projects from receiving the credit, and Finance responded by reducing the threshold to only 50% of production.

On June 19^th, 2024, at the recommendation of the Minister of Environment and Climate Change, the Government of Canada began work on an emergency order to address perceived threats to Boreal Caribou populations in Val-d’Or, Charlevoix, and Pipmuacan, Quebec. A discussion paper on the Proposed Scope of the order was released on August 7^th, 2024, and outlined proposed provisional areas for protection and prohibitions which would apply to those areas.

PDAC identified the risk this proposed scope posed to the mineral exploration and development sector in some of Quebec’s most prolific mining regions, including investment uncertainty, lost economic opportunities, and infrastructure challenges. The discussion paper and subsequent meetings with ECCC further highlighted misconceptions about industry and jurisdictional overreach which needed to be addressed. PDAC responded to the discussion paper on September 13^th, 2024.

As part of its strategy to pursue the low carbon economy and achieve national net-zero goals for Canada, in Budget 2023 the Federal Government announced various tax incentives related to a range of emission reduction technologies.

One incentive that is relevant to the mineral sector is the Clean Technology Manufacturing Investment Tax Credit (CTM-ITC), which will provide a refundable 30% tax credit for capital investment in various eligible activities to extract and process six critical minerals that are essential for these clean technologies – copper, nickel, lithium, cobalt, graphite and rare earth elements.

On December 20, 2023, Finance Canada published the draft legislation for the CTM-ITC, on which PDAC responded with a commentary letter to convey some concerns regarding the proposed legislation and to improve the effectiveness of this incentive.

On June 13, 2023, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received royal assent. The Bill outlined amendments to the Canadian Environmental Protection Act which was enacted in 1999. The goal is to contribute to sustainable development through pollution prevention and to protect the environment, human life and health from the risks associated with toxic substances.

The Government is developing an implementation framework “the Framework” to set out how the right to a healthy environment will be considered in administering the Canadian Environmental Protection Act. These elements include the scope and limits of the right, related principles as well as procedural duties.

PDAC addressed a written submission to the Minister of Environment and Climate Change and the Minister of Health to provide perspective on the definition of healthy environments in Canada with a particular focus on the context of early-stage mineral exploration and development projects.

The Government of Canada created the “2030 Emissions Reduction Plan” to describe steps required to reduce emissions across the entire economy to reach our emissions reduction target of 30 percent below 2005 levels by 2030 and put us on a path to achieve net-zero emissions by 2050. This complements the Pan-Canadian Framework on Clean Growth and Climate Change, the Canadian Net-Zero Emissions Accountability Act, the Clean Fuel Standard and Canada’s international obligations under the Paris Agreement.

The government released a 2023 Progress Report on the 2030 Emissions Reduction Plan and invited Canadians to share their views on Canada's Climate Future through a virtual public engagement platform. The input gathered from this process will be one of several factors considered when setting the 2035 target. The implications of the 2035 target may manifest through taxation, capital markets, regulatory affairs, and access to talent, or other avenues.

PDAC encouraged their members to participate in the virtual engagement platform and submitted a commentary letter outlining the relationship between critical mineral demand through 2035 and emission projections over the same period.

As part of NRCan’s commitment to triennial updates to Canada’s Critical Minerals List, a consultation was initiated regarding the criteria used to develop and update the List. The proposed changes to the criteria, intended to clarify the original assessment of minerals for criticality, would require that a mineral be:

• Essential to Canada’s economic or national security; or
• Required for our national transition to a sustainable low-carbon and digital economy; or
• A sustainable and strategic source of critical minerals for our international allies.

While meeting both of the following mandatory criteria:

• Mineral supply is threatened; and
• Has a reasonable likelihood of being produced in Canada.

In addition to the presented submission, PDAC participated in virtual consultation engagements with NRCan. It should be noted that the consultation’s scope was limited to the Critical Minerals List criteria; commentary on the inclusion of specific minerals on the List or as part of funding programs or tax incentives has therefore not been provided.

In December 2022, Canada hosted the United Nations Convention on Biological Diversity (CBD COP15) which saw nearly 200 countries adopting the Kunming-Montreal Global Biodiversity Framework (GBF).  This framework outlines a set of global goals to halt and reverse biodiversity loss by 2030 and maintain positive momentum such that by 2050 “biodiversity is valued, conserved, restored and wisely used.”

Within this commitment, counties are expected to update their National Biodiversity Strategy and Action Plans (NBSAP) to align domestic policy with the global goals outlined in the GBF. Revised national strategies must be completed before COP16 in 2024.

On May 15, 2023, Environment and Climate Change Canada (ECCC) hosted a National Biodiversity Symposium which kicked off the formal engagement on developing Canada’s 2030 National Biodiversity Strategy. With this, ECCC developed a discussion paper entitled “Towards a 2030 National Biodiversity Strategy“ to gather ideas, information, and perspectives on biodiversity conservation in Canada and to inform the development of the Biodiversity Strategy. 

PDAC participated in a virtual natural resources sectors engagement session hosted by NRCan and ECCC, additionally, PDAC has formally submitted a response to the discussion paper to outline how mineral exploration can contribute to the realization of biodiversity targets.

In early 2024, PDAC followed up with a written submission to ECCC’s Milestone Document which contained the draft biodiversity strateg

On Oct 13th, 2023, the Supreme Court of Canada ruled the "designated projects" portion of the federal Impact Assessment Act (the Act) as unconstitutional; this decision was made on the basis that the Act is not directed at regulating effects within federal jurisdiction, and that the defined term "effects within federal jurisdiction" does not align with federal legislative jurisdiction.

The Act, which replaced the Canadian Environmental Assessment Act (CEAA 2012) in August 2019, is a planning and decision-making tool through which the federal government assess various potential environmental and social/economic effects of major projects. The Act as currently written has significant implications for the mineral development sector.

In February 2024, PDAC submitted feedback on the opportunities presented by this ruling to address both the unconstitutionality of the designated projects list and other issues identified by our members that have occurred during the Act’s implementation.

In December 2022, the Ministry of Transportation introduced amendments to the Canadian Aviation Regulations (CARs) aimed at restricting commercial pilot flight time. While well intentioned, the amendments lack clarity and may significantly affect mineral exploration by reclassifying much of the industry’s aerial work as “air taxi” operations. This change has major financial and logistical consequences for explorers, as an operation may now need two pilots where one was previously sufficient. More importantly, they pose a notable safety risk, as the reduction in flight hours could limit pilot capacity to participate in evacuations or other emergencies. 

Canadian Aviation Regulations Advisory Council (CARAC) Notice of Amendment NPA-2023-006 indicates that the amendments pose safety risks in the face of an unprecedented wildfire season. As a result, the Ministry of Transportation issued further amendments to the aerial work regulations to clarify the impacts of the changes on forest firefighting operations and launched a one-month consultation period in May 2023.

As the risks to pilots and firefighters arising from the amendments are similar to those foreseen to arise in exploration operations, PDAC’s submission aims to elucidate this relationship and provide key recommendations. 

In late 2022 the federal government announced projected changes to its foreign investment policy, which are aimed at addressing various national security concerns. Following that, in February 2023 bill C-34 to amend the Investment Canada Act (ICA) was tabled at the house of common. 

The bill focuses on high-tech companies, but it also addresses mining and exploration companies with critical mineral aspects. In essence, the bill introduces changes that will pose practical limitations on the ability of these companies to be funded by certain foreign investors, and may increase uncertainty and reduce market transparency. 

We have various concerns regarding this bill, and in May 2023 we submitted a commentary letter to the House of Commons’ standing committee on Industry, Science and Technology, in which we laid out our concerns and recommendations. 

In 2018, Prime Minister Justin Trudeau announced Canada’s commitment to protecting 25% of Canada’s lands and waters by 2025, and the intention to increase that protection to 30% by 2030, and 50% by 2050. Over the next three years, a number of specific funds and programs were announced through which these lands and waters can be designated protected, yet there had been little direct consultation with the provinces and territories around selection criteria and timelines. 

In 2022, Environment and Climate Change Canada (ECCC) solicited responses to “Key Conservation Questions from the Canadian Wildlife Service’s Protected Areas Directorate” to stimulate discussion on advancing protected area gains such that Canada meets its protection goals This consultation sought strategies on linking biodiversity conservation with climate change initiatives; strategic challenges that conservation can be a solution for; and using innovative financial tools for nature conservation.

PDAC’s response includes solutions to these inquiries and goes further to outline the need to ensure the designation of protected areas includes an accurate environmental assessment of the mineral potential of the land at the outset, operates within transparent processes, and prioritizes coordination with respective jurisdictions.