Time to update Ontario’s Mining Act


Time to update Ontario's Mining Act


Madelaine Drohan

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The KI-6 may not be household names in Canada, but the six imprisoned residents from the First Nations community of Kitchenuhamaykoosib Inninuwug in Northern Ontario may well force the provincial government to finally update its 135-year-old Mining Act.


Their six-month jail sentence, imposed by an Ontario Superior Court judge on grounds they were preventing mining exploration on land they claim north of Thunder Bay, has done more to publicize the unfairness and antiquity of the current mining law than all the peaceful protests that came before.


With the head of the Anglican Church in Canada comparing it to the action of colonizers, a group of high-profile Canadians, including Margaret Atwood and Stephen Lewis, demanding their release, and hundreds of aboriginal protesters gathering on the lawns of Queen's Park this week, Premier Dalton McGuinty was forced to acknowledge publicly that the Mining Act has to be modernized.


The government has known this for some time and started two years ago to do some preparatory work for a full-scale review. The question now is whether the Premier will follow through and demand that the ministers involved (Aboriginal Affairs, Environment, Economic Development and Trade, and Northern Development and Mines) set aside their differences and agree to an actual timetable with a real deadline to ensure what is now just a vague promise becomes a concrete reality.


In his comments to reporters, Mr. McGuinty alluded to some of the reasons why updating the legislation has remained on the government's backburner. Mining and mining finance is big business in the province. Ontario produces more non-fuel metals and minerals than any other province in Canada, more than $10-billion worth in 2007. With some auto makers and other manufacturers in difficulty and the financial sector in turmoil, there is little inclination to make major changes that would affect another major industry.


It does not help that mining happens out of sight of Toronto. It takes place mostly in Northern Ontario, where there are few voters and even fewer government MPPs. The combination means that the concerns of the north do not resonate loudly in the hallways of Queen's Park. Just ask the northern residents who want to separate and join Manitoba on grounds that they might have more clout in a smaller province.


Further dampening any inclination to act is that aboriginal affairs is primarily a federal responsibility. The Constitution dictates that First Nations deal on a government-to-government basis with Ottawa, not with provincial governments. These jurisdictional layers make it easier to do nothing than to come to grips with the problem.


This has allowed some mining companies, including the one working near Kitchenuhamaykoosib Inninuwug, which is called Platinex, to stake claims and proceed with exploration against the wishes of the community, while still remaining within the terms of the Mining Act. Something similar has occurred near Sharbot Lake, near Peterborough, where Frontenac Ventures was exploring for uranium over community protests. Bob Lovelace, a retired Algonquin chief and university professor, was also jailed for six months for protesting against this project.


The status quo will not hold, and not just because of the negative publicity generated by jailing peaceful protesters – although that has certainly turned up the heat on the provincial government. There are also two relatively recent Supreme Court rulings involving cases in British Columbia that have changed the lay of the land completely and put extra pressure on the Ontario government.


In the decisions, which involved a forestry project and a mine in B.C., the Supreme Court ruled that the federal and provincial governments had a duty to consult aboriginal groups and to accommodate their concerns even before aboriginal title or rights claims had been decided. This is an important missing piece in the Ontario Mining Act. It does not require these consultations.


Some mining companies do them regardless, knowing that it is better to work in a community where people feel their concerns have been addressed than to steam ahead with a mine development and risk protests later that will cost money and time. Indeed, although there are some outliers, the trend in the industry is to work more closely with aboriginal groups, not just in Canada, but also around the world.


If done well, it works for both parties: The communities get development and jobs and the companies get access to minerals and workers. The Mining Association of Canada is working with the Assembly of First Nations to craft an agreement on wide-ranging collaboration.


While a positive step, this is not a substitute for modern mining legislation. With prices for metals and minerals high and still rising in some cases, mining activity in Ontario is set to increase. Unless the government gets the lead out and updates its Mining Act, confrontations between aboriginal groups and mining companies will continue to increase.


The Mining Act, as it is currently written, is not in keeping with our standards and expectations and values that we share today,” Mr. McGuinty said this week.


The onus is on the Premier and his ministers to do something about it now.