Huge uncertainties remain with Ontario’s new Mining Act

Thursday October 27, 2011

 

Shawn Bell

Special to Wawatay News

As the minister tasked with implementing the heart of the Ontario Mining Act takes over his new portfolio, the challenges facing that goal seem to be growing by the week.

 

The new minority Liberal government named Sudbury’s Rick Bartolucci minister of Northern Development and Mines, Oct. 20. Bartolucci replaces Thunder Bay-Superior North’s Michael Gravelle, the minister who brought in the new Mining Act.

The Sudbury MPP’s task of bringing in phases two and three of the Mining Act looks more daunting than ever after a month that has seen a new flare up over mining exploration on Kitchenuhmaykoosib Inninuwug (KI) traditional lands, a Supreme Court decision granting Grassy Narrows First Nations the right to reject mining exploration on its territory and Nishnawbe Aski Nation Grand Chief Stan Beardy’s stance on any outside incursion onto northern Ontario First Nation land.

He wants the Crown’s recognition that the First Nation peoples of his region have the sole right to decide who uses the land.

“We never gave up the right to govern ourselves,” Beardy said. “As a sovereign state we still maintain that right. We may agree to share the land from time to time, but the provincial government does not have the right to let third parties onto the land.”

Intent of the act

Even Beardy acknowledged that some form of guidelines over mining in the Far North was necessary. The previous Ontario Mining Act, in place since the 1870s, basically gave mining and exploration companies free entry to the land without any consultation with local people.
The grand chief says under the new Mining Act nothing has changed and there still remains a perception by industry that all land outside of reservations is free game for mining.

But representatives from environmental groups EcoJustice and Mining Watch Canada, while agreeing that Aboriginal people still do not have appropriate input, say the new Mining Act is a good start towards what could be a fair and equitable system.

Justin Duncan of EcoJustice co-wrote a report before Ontario’s Mining Act was created calling on the government to ensure that land owners and Aboriginal groups gave consent to mining companies before exploration and production occurred.

Duncan said that the Mining Act does set parameters to address those questions. But he cautioned that until regulations set out what mining companies are expected to do, it is impossible to tell if the act has gone far enough.

“There are all these pieces still up in the air,” Duncan said. “I don’t think anybody knows what it is going to look like. And unfortunately the current act does not impact on the ground yet – so it is basically the same system with the same uncertainty as existed before.”
Duncan added that for the Mining Act to be successful a permitting system and framework for consultations between industry and First Nations need to be in place.

The Mining Act, explained

The Ontario Mining Act passed through legislature in October 2009. Gravelle, the minister who introduced the act and steered it through its initial consultation periods, has repeatedly called the act a balance between the mining industry – a major player in the Ontario economy with roughly $10 billion in production, including over $800 million in exploration – and giving First Nation communities the ability to make decisions on their own land.

“We want to find that balance that would be appropriate … to properly respect the needs of First Nations communities to make their own decisions,” Gravelle told the Northern Miner earlier this year.

Phase one of the act has already come into play. It focuses on land owner issues in southern Ontario and modernizing existing permitting applications, but does include the claim that “engaging Aboriginal communities early and throughout the exploration process is essential.”
Yet as Ramsay Hart of Mining Watch Canada explained, there is no stipulation that the engagement between industry and First Nations has to amount to anything.

For example Hart pointed to the KI dispute with God’s Lake Resources in late September, where God’s Lake sent letters to KI Chief Donny Morris and without any reply assumed it had fulfilled its obligation to consult.

Phase two of the act, expected to be implemented over the next two years, is where it gets interesting for First Nation communities.

This phase includes a clause where First Nation communities can withdraw land from development by showing it is a site of cultural or spiritual significance, although criteria for showing either has not yet been outlined. It also sets up a dispute resolution committee to assist when consultation between industry and First Nations fails, and outlines a process where the government examines all mining exploration plans to determine whether consultation with Aboriginal groups is necessary.

One problem with those clauses for First Nation groups is that the minister of Northern Development and Mines has the ability to override all decisions made under them.

But a bigger issue for NAN’s grand chief is that Ontario is not recognizing First Nation treaty rights to make unilateral decisions on what happens on traditional lands.

“Consultation and accommodation is a minimum,” Beardy said. “We’re not against resource development, but Aboriginal rights under the Canadian Constitution mean we are a sovereign nation with a legal right to be properly consulted before anybody goes onto our land.”

‘Short window of opportunity’

Chris Hodgson, president of the Ontario Mining Association (OMA), said he believes the Mining Act contains some good measures to help industry, government and First Nations move forward on many of the issues facing the North.

The biggest advantage for the region, he said, is that most mining companies have excellent relationships with First Nations.

But he acknowledged that all players have to do much more to show First Nations the benefit of having a mining operation in their area.

“We have our work cut out for us, between industry and government, to show local communities that they’ll benefit from these projects,” Hodgson said.

One way to do that, the OMA believes, is to increase the share of tax revenues from mining operations that flow to local communities affected by a mine.

In the meantime Hodgson stressed that the window of opportunity for Ontario to maximize its profits from the abundant resources of the North is shrinking.

Once that development window closes, Ontario’s mineral wealth will be worth relatively much less, Hodgson explained, making it crucial to speed up the development of new mines to maximize the economic benefits of those projects.

But the first challenge for the new minister responsible for mining is to resolve the concerns of Matawa First Nations, who announced last week they will pull support for the Ring of Fire development without a Joint Review Panel – to oversee the strictest environmental assessment available – of the proposed chromite mine.

But in the longer term Rick Bartolucci’s ministry will have to implement phase two and three of the Ontario Mining Act – figuring out in the process what consultation with First Nations is going to look like.

If Beardy’s comments last week are any indication, that task is going to be daunting.

For as the OMA knows well, the global demand for Ontario minerals has never been higher.

But neither has the ability of First Nations to force governments to accept their demands.

Ontario’s Mining Act:

1873: Mining Act is written in Ontario, giving anyone over 18 years old with a prospector’s license the right to stake mineral claims, including Crown lands that are subject to land claims or the traditional hunting and fishing territory of First Nations.

1905-06, 1929-30: Treaty 9 is negotiated and signed by 38 First Nations, the Canadian government, and Ontario. It is the first and only time a province is a treaty signatory.

May 2000: Kitchenuhmaykoosib Inninuwug First Nation, a Treaty 9 signatory, files land claim with Ontario and Canada.

August and November 2005: KI leadership sends letters to junior mining company Platinex indicating that KI is strongly opposed to any development.

February 2006: Platinex mobilizes a drill team without consent from KI. After encountering peaceful protesters from KI, Platinex flies in a private corporate security consultant to organize the withdrawal of the drill team.

2007: Exploration spending in Ontario is $500 million, more than four times the $120 million spent in 2002.

February 2008: Ardoch Algonquin First Nation leader Robert Lovelace is sentenced to six months in jail for protesting uranium mining on the traditional Ardoch land in southern Ontario.

March 2008: Six leaders of Kitchenuhmaykoosib Inninuwug First Nation are sentenced to six months for contempt of court after they violate an injunction and protest against drilling on their traditional lands.

July 2008: Ontario agrees to reform the Mining Act.

August 2008: Province begins process of reviewing and modernizing Mining Act, which includes analyzing “potential approaches to consultation and accommodation related to mineral sector activities as they affect Aboriginal and treaty rights.”

October 2009: Bill 173 (the Mining Amendment Act, 2009) is passed, with key provisions that include the express recognition of Aboriginal and treaty rights, the notification of Aboriginal communities regarding claim staking and exploration activities, Aboriginal consultation and accommodation requirements and a process to address disputes relating to Aboriginal consultation.