Blog by Joseph F. Castrilli, Counsel, Canadian Environmental Law Association
Among the more unfortunate results of current economic policies south of the border, is their spill-over impact on environmental law north of the border.
Canada’s new nation building law (Bill C-5) and Ontario’s new special economic zones law (a spin-off of Bill 5), both seek to trump the impact of American tariffs on Canadian goods. Ontario proposes to do this with what may amount to law-free inducements to “trusted proponents” to industrialize areas of the province favoured by the government. In such special economic zones, project proponents will be subject not to existing laws, but only to such requirements as may be imposed under the new law, as a means of expediting the lessening of economic dependence on the United States. However, a laudable intention is not saved by a doubtful policy prescription and problematic implementation.
Ontario Focus on Mining Development
A particular focus of government inducements is mining development. Much talk has centred on ramping up mining activity in the Ring of Fire region of northern Ontario, located 500 kilometres northeast of Thunder Bay, in search of minerals critical to the development of clean energy and other technologies. So-called “critical minerals” include lithium, nickel, cobalt, and rare earth elements.
However, other parts of Ontario, such as the Red Lake District in northwestern Ontario, are already experiencing a mining boom; this one focused on gold. While gold is not viewed as a “critical mineral”, both existing and proposed environmental regulation of gold mines suggests that the government is prepared to take a relaxed approach to regulatory control of this sector as if gold were a critical mineral. In the process, the province may potentially turn the area into a sacrifice zone, as well as deny vulnerable members of the public access to justice.
Sulphate Discharges and Methylmercury Formation
In this regard, it is instructive to view how the Ontario government currently environmentally regulates gold mining to get a sense of how “law-free” the current situation is even in the absence of designating the Red Lake District as “special”.
There are new gold mines planned, others already operating, and old ones re-starting in the Red Lake District, an historic area for gold mining in Canada going back over 100 years. They all have several things in common.
First, the Red Lake District is home to numerous First Nations, whose traditional territories overlap, abut, or are downstream from areas where mining claims have recently been staked.
Second, gold mining activities discharge sulphate to local bodies of water which can travel great distances through the region’s inter-connected series of rivers, lakes, and streams.
Third, the release of sulphate can cause existing biologically inert mercury already in the water body or in sediments (present naturally or due to previous industrial activity) to become biologically active methylmercury, a potent human neurotoxin, which can impact fetal development and impair central nervous system function. Methylmercury is infamous for causing environmental health havoc around the world (e.g., Minamata, Japan; Grassy Narrows, Ontario). It can biomagnify and bioaccumulate up the food chain contaminating fish in area waters and harming the health of First Nation people consuming the fish.
Lenient Regulatory Objectives for Sulphates Lead to Major Concentrations Downstream
The methylation process is aided and abetted by extraordinarily lenient concentration objectives and non-existent discharge limits for sulphate in gold mining effluent authorized by Ontario pursuant to approvals issued under provincial laws.
This last point is readily illustrated in recently proposed, as well as recently issued, approvals by the province to Red Lake District area mines. Concentration objectives in approvals for sulphate in treated mine effluent have been set at levels as high as 1716 mg/L. Independent experts have characterized these objective levels as “egregiously high”, a license to pollute, and wholly non-protective of the health of fish consumers in the region in light of the ability of sulphate to trigger the production of methylmercury in these waters.
However, in the abstract 1716 mg/L itself may not mean much to anyone until one sees the downstream concentrations of sulphate that can result in comparison to average natural background levels. Sulphate discharges from some mining operations have resulted in concentrations in downstream receiving waters ranging from 80-200 mg/L; a level grossly higher than background levels that average 2 mg/L, according to experts. Put another way, such sulphate concentrations in downstream receiving waters represent a 3,900 to 9,900 percent increase over background levels. These kinds of percentage increases do not appear consistent with the commitments of the Ontario Ministry of Environment, Conservation and Parks under its Environmental Bill of Rights Statement of Environmental Values to use a precautionary, science-based, approach in its decision-making to protect human health and the environment. This inconsistency appears particularly to be the case when the result of such sulphate increases can trigger the production of methylmercury in area waters.
Where Regulatory Leniency is not Enough, there is Always Outright Exemption from Permit and Approval Requirements
In Ontario’s zeal to expedite mining development, it has most recently gone a step further; it now proposes to exempt certain early exploration activities and aspects of advanced exploration projects from requiring ministry permissions (e.g., a permit to take water (“PTTW”) under the Ontario Water Resources Act (OWRA), or an environmental compliance approval (“ECA”) under the Environmental Protection Act (EPA)). The triple-barreled rationale proffered by Ontario for this initiative is that this will: (1) support economic development and make Ontario more competitive; (2) only apply to certain “low risk” activities; and (3) still protect human health and the environment by relying on the province’s permit by rule regime (otherwise known as EASR – Environmental Activity and Sector Registration – which dispenses with the need for permits or approvals in favour of compliance with pre-stipulated regulatory requirements – See ERO 025-1363 Proposal – Streamlining environmental permissions for mineral exploration).
There are those who would beg to differ about this being a good idea. A case in point is the March 2025 decision of the Ontario Land Tribunal (Grassy Narrows First Nation v. Ontario (Environment, Conservation and Parks), 2025 CanLII 21796) which granted leave to appeal the issuance of a 1-year PTTW for dewatering, industrial, and water supply purposes during the construction phase of an advanced exploration project for a proposed new gold mine in the Red Lake District. In deciding to grant leave to appeal, the Tribunal found that there was scientific uncertainty regarding the environmental impacts of the PTTW because: (1) the sulphate load to area waters caused by the activities that were subject to the PTTW could result in enhanced formation of methylmercury, cumulatively contributing to an already mercury impaired ecosystem; and (2) neither the PTTW’s conditions nor a proposed mobile water treatment unit with an existing ECA had treatment criteria for reducing sulphate and would not adequately protect against methylmercury production.
Had the Ontario streamlining proposal been the law when this mining exploration proposal first came forward: (1) there would have been no requirement for any permit or approval; (2) no opportunity to seek leave to appeal the issuance of any permit since none would be required; and consequently (3) no opportunity for a hearing to identify and correct potential environmental impacts. Multiply this scenario times the many other mining proposals or re-starts currently occurring in the Red Lake District, and it quickly becomes apparent that in short order we’d have a 21st century gold rush sans any meaningful environmental controls.
“No Environmental Assessment, No Problem”: A Strategy That Leads to Further Problems
To add insult to injury, advanced exploration activities are also not subject to environmental assessment laws at the federal and provincial levels. In fact, mines are not subject at all to Ontario’s Environmental Assessment Act having been excluded from the Act’s designated projects regulation. And while mines (over certain thresholds) currently trigger the application of the federal Impact Assessment Act, Canada and Ontario have just signed a cooperation agreement that would curtail the federal role [CELA Submission on Draft Co-operation Agreement between Ontario and Canada on Environmental and Impact Assessment]. The agreement allows the federal government to forgo an impact assessment of a mine’s impacts on areas of federal jurisdiction by deferring these impacts to assessment under Ontario’s narrowly focused permitting statutes (e.g., EPA, OWRA) (keeping in mind that an ECA or a PTTW under these laws may not even be required if the streamlining proposal proceeds respecting advanced exploration activities, as discussed above). Environmental assessment has historically been understood as allowing decision-makers to “look before they leap”. However, the regime being nailed into place by Ontario to facilitate mining, seems primed to do the opposite; ensuring that decision-makers leap first and look after. It is a strategy that seems ill-suited for addressing critical issues like avoiding: (1) methylmercury production; (2) resulting contamination of fish; and (3) consequential harm to humans consuming the fish.
Ontario’s Regulatory Approach Neither Protective of Health nor Environmentally Just
To describe lax regulatory control of sulphate as less than optimum, does not begin to characterize how inexcusable it is given the environmental consequences flowing from unleashing methylmercury in the region’s waterways.
Whether this regulatory approach has been taken as part of a strategy to thwart foreign threats to our economic sovereignty, or simply masks a domestic policy preference, it is not consistent with principles of environmental justice and constitutes a fundamental disservice to disadvantaged communities that are most in need of environmental health protection.
Finally, Ontario’s policy of adopting lax standards, shrinking the scope of opportunity to require permits or approvals, and not applying environmental assessment measures, seems tailor-made for material interference with First Nation people simply trying to pursue their traditional and constitutionally protected rights to fish without being harmed.
They deserve better. We all do.
Blog – Gold Mining, Sulphate Discharges, and Methylmercury: Is Environmental Policy Already Treating Parts of Ontario as Law-Free Special Economic Zones?
Blog by Joseph F. Castrilli, Counsel, Canadian Environmental Law Association
Among the more unfortunate results of current economic policies south of the border, is their spill-over impact on environmental law north of the border.
Canada’s new nation building law (Bill C-5) and Ontario’s new special economic zones law (a spin-off of Bill 5), both seek to trump the impact of American tariffs on Canadian goods. Ontario proposes to do this with what may amount to law-free inducements to “trusted proponents” to industrialize areas of the province favoured by the government. In such special economic zones, project proponents will be subject not to existing laws, but only to such requirements as may be imposed under the new law, as a means of expediting the lessening of economic dependence on the United States. However, a laudable intention is not saved by a doubtful policy prescription and problematic implementation.
Ontario Focus on Mining Development
A particular focus of government inducements is mining development. Much talk has centred on ramping up mining activity in the Ring of Fire region of northern Ontario, located 500 kilometres northeast of Thunder Bay, in search of minerals critical to the development of clean energy and other technologies. So-called “critical minerals” include lithium, nickel, cobalt, and rare earth elements.
However, other parts of Ontario, such as the Red Lake District in northwestern Ontario, are already experiencing a mining boom; this one focused on gold. While gold is not viewed as a “critical mineral”, both existing and proposed environmental regulation of gold mines suggests that the government is prepared to take a relaxed approach to regulatory control of this sector as if gold were a critical mineral. In the process, the province may potentially turn the area into a sacrifice zone, as well as deny vulnerable members of the public access to justice.
Sulphate Discharges and Methylmercury Formation
In this regard, it is instructive to view how the Ontario government currently environmentally regulates gold mining to get a sense of how “law-free” the current situation is even in the absence of designating the Red Lake District as “special”.
There are new gold mines planned, others already operating, and old ones re-starting in the Red Lake District, an historic area for gold mining in Canada going back over 100 years. They all have several things in common.
First, the Red Lake District is home to numerous First Nations, whose traditional territories overlap, abut, or are downstream from areas where mining claims have recently been staked.
Second, gold mining activities discharge sulphate to local bodies of water which can travel great distances through the region’s inter-connected series of rivers, lakes, and streams.
Third, the release of sulphate can cause existing biologically inert mercury already in the water body or in sediments (present naturally or due to previous industrial activity) to become biologically active methylmercury, a potent human neurotoxin, which can impact fetal development and impair central nervous system function. Methylmercury is infamous for causing environmental health havoc around the world (e.g., Minamata, Japan; Grassy Narrows, Ontario). It can biomagnify and bioaccumulate up the food chain contaminating fish in area waters and harming the health of First Nation people consuming the fish.
Lenient Regulatory Objectives for Sulphates Lead to Major Concentrations Downstream
The methylation process is aided and abetted by extraordinarily lenient concentration objectives and non-existent discharge limits for sulphate in gold mining effluent authorized by Ontario pursuant to approvals issued under provincial laws.
This last point is readily illustrated in recently proposed, as well as recently issued, approvals by the province to Red Lake District area mines. Concentration objectives in approvals for sulphate in treated mine effluent have been set at levels as high as 1716 mg/L. Independent experts have characterized these objective levels as “egregiously high”, a license to pollute, and wholly non-protective of the health of fish consumers in the region in light of the ability of sulphate to trigger the production of methylmercury in these waters.
However, in the abstract 1716 mg/L itself may not mean much to anyone until one sees the downstream concentrations of sulphate that can result in comparison to average natural background levels. Sulphate discharges from some mining operations have resulted in concentrations in downstream receiving waters ranging from 80-200 mg/L; a level grossly higher than background levels that average 2 mg/L, according to experts. Put another way, such sulphate concentrations in downstream receiving waters represent a 3,900 to 9,900 percent increase over background levels. These kinds of percentage increases do not appear consistent with the commitments of the Ontario Ministry of Environment, Conservation and Parks under its Environmental Bill of Rights Statement of Environmental Values to use a precautionary, science-based, approach in its decision-making to protect human health and the environment. This inconsistency appears particularly to be the case when the result of such sulphate increases can trigger the production of methylmercury in area waters.
Where Regulatory Leniency is not Enough, there is Always Outright Exemption from Permit and Approval Requirements
In Ontario’s zeal to expedite mining development, it has most recently gone a step further; it now proposes to exempt certain early exploration activities and aspects of advanced exploration projects from requiring ministry permissions (e.g., a permit to take water (“PTTW”) under the Ontario Water Resources Act (OWRA), or an environmental compliance approval (“ECA”) under the Environmental Protection Act (EPA)). The triple-barreled rationale proffered by Ontario for this initiative is that this will: (1) support economic development and make Ontario more competitive; (2) only apply to certain “low risk” activities; and (3) still protect human health and the environment by relying on the province’s permit by rule regime (otherwise known as EASR – Environmental Activity and Sector Registration – which dispenses with the need for permits or approvals in favour of compliance with pre-stipulated regulatory requirements – See ERO 025-1363 Proposal – Streamlining environmental permissions for mineral exploration).
There are those who would beg to differ about this being a good idea. A case in point is the March 2025 decision of the Ontario Land Tribunal (Grassy Narrows First Nation v. Ontario (Environment, Conservation and Parks), 2025 CanLII 21796) which granted leave to appeal the issuance of a 1-year PTTW for dewatering, industrial, and water supply purposes during the construction phase of an advanced exploration project for a proposed new gold mine in the Red Lake District. In deciding to grant leave to appeal, the Tribunal found that there was scientific uncertainty regarding the environmental impacts of the PTTW because: (1) the sulphate load to area waters caused by the activities that were subject to the PTTW could result in enhanced formation of methylmercury, cumulatively contributing to an already mercury impaired ecosystem; and (2) neither the PTTW’s conditions nor a proposed mobile water treatment unit with an existing ECA had treatment criteria for reducing sulphate and would not adequately protect against methylmercury production.
Had the Ontario streamlining proposal been the law when this mining exploration proposal first came forward: (1) there would have been no requirement for any permit or approval; (2) no opportunity to seek leave to appeal the issuance of any permit since none would be required; and consequently (3) no opportunity for a hearing to identify and correct potential environmental impacts. Multiply this scenario times the many other mining proposals or re-starts currently occurring in the Red Lake District, and it quickly becomes apparent that in short order we’d have a 21st century gold rush sans any meaningful environmental controls.
“No Environmental Assessment, No Problem”: A Strategy That Leads to Further Problems
To add insult to injury, advanced exploration activities are also not subject to environmental assessment laws at the federal and provincial levels. In fact, mines are not subject at all to Ontario’s Environmental Assessment Act having been excluded from the Act’s designated projects regulation. And while mines (over certain thresholds) currently trigger the application of the federal Impact Assessment Act, Canada and Ontario have just signed a cooperation agreement that would curtail the federal role [CELA Submission on Draft Co-operation Agreement between Ontario and Canada on Environmental and Impact Assessment]. The agreement allows the federal government to forgo an impact assessment of a mine’s impacts on areas of federal jurisdiction by deferring these impacts to assessment under Ontario’s narrowly focused permitting statutes (e.g., EPA, OWRA) (keeping in mind that an ECA or a PTTW under these laws may not even be required if the streamlining proposal proceeds respecting advanced exploration activities, as discussed above). Environmental assessment has historically been understood as allowing decision-makers to “look before they leap”. However, the regime being nailed into place by Ontario to facilitate mining, seems primed to do the opposite; ensuring that decision-makers leap first and look after. It is a strategy that seems ill-suited for addressing critical issues like avoiding: (1) methylmercury production; (2) resulting contamination of fish; and (3) consequential harm to humans consuming the fish.
Ontario’s Regulatory Approach Neither Protective of Health nor Environmentally Just
To describe lax regulatory control of sulphate as less than optimum, does not begin to characterize how inexcusable it is given the environmental consequences flowing from unleashing methylmercury in the region’s waterways.
Whether this regulatory approach has been taken as part of a strategy to thwart foreign threats to our economic sovereignty, or simply masks a domestic policy preference, it is not consistent with principles of environmental justice and constitutes a fundamental disservice to disadvantaged communities that are most in need of environmental health protection.
Finally, Ontario’s policy of adopting lax standards, shrinking the scope of opportunity to require permits or approvals, and not applying environmental assessment measures, seems tailor-made for material interference with First Nation people simply trying to pursue their traditional and constitutionally protected rights to fish without being harmed.
They deserve better. We all do.
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