Aboriginals Want The Option To Say ‘No’

Although the government of Ontario’s proposed new Mining Act has been well-received so far by the mining industry, there is still a great distance between what some stakeholders want and what they will get.

Minister of Northern Development and Mines Michael Gravelle introduced a bill to the provincial legislature on April 30 intended to provide a clearer set of rules regarding the rights of mining and exploration companies, aboriginals, and private land owners throughout the stages of development.

A key amendment to the 136-year-old law is the recognition of aboriginal and treaty rights and the implementation of a system for consultation throughout the exploration and mining processes. Under the new act, companies will be required to notify aboriginal groups after they’ve staked land. They will then have to file exploration plans for lower-impact activities and exploration permits will be required for higher-impact activities. The details of each will be decided during the next year, if the bill is passed.

But the proposed law does not meet the expectations of the Nishnawbe Aski Nation (NAN), which includes 49 aboriginal communities totalling 45,000 people across 550,000 sq. km in northern Ontario.

NAN Grand Chief Stan Beardy says prospectors should have to get the consent of aboriginal communities before staking.

“We’re not against resource development,” Beardy says, pointing out that 65% of NAN First Nations are involved in the mining industry.

“All we are saying is that somebody needs to come and talk to us before going on our land because we still hunt, trap and fish in the far north of NAN territory,” Beardy explains. “We are concerned about the environment to make sure it’s as much as possible intact when resource development does take place because we will be here long after the mining is said and done.”

NAN is also asking the government to fund technical resources so it can engage and respond to the project assessment process and for an assurance that land-use plans take precedence over mining rights.

The ministry says it’s adopting “best practices” already followed by resource companies, many of which already consult with aboriginals without official guidelines. Under the current act, all Crown land, including land subject to aboriginal title claims, is open for staking, exploration and mining without consultation. That contradicts Supreme Court rulings, however, that say aboriginals must be consulted and reasonably accommodated when it comes to activity on their traditional territories, and that the duty to consult falls on the government, rather than resource companies.

Jon Baird, president of the Prospectors and Developers Association of Canada says the province has taken a step in the right direction.

“But it’s just the start, there’s a lot of regulation required,” Baird says.

Baird says that although most of the industry gets along well with private landowners and aboriginals, something needs to be done.

“Industry is not happy with the current situation,” Baird says. “So much is positive but every now and then something goes awry, so we need a process and it looks like this amendment to the law is going to give us this process.”

Anne-Marie Flanagan, spokesperson for the Ministry of Northern Development and Mines (MNDM), says aboriginal groups won’t have veto power over development because the province needs to maintain a competitive environment for the mining industry. Such involvement could be costly and more time consuming.

“Not everybody is going to be happy,” Flanagan says. “What we’ve tried to do is find a balance between all interests and come up with the best system that takes into account everybody’s concerns.”

As a part of creating the new act, aboriginals will be allowed to with-draw significant cultural sites from mineral staking. Staking is currently not allowed on reserve land or burial grounds. Flanagan says First Nations groups will need to submit a list to the ministry of areas they would like omitted.

“Then we’ll work with them on withdrawing some of those areas,” she says.

The new act will also replace the “free entry” staking system with map staking.

And a dispute resolution process will provide a framework for disagreements over exploration permits, the filing of closure plans or other issues decided during the regulation process.

After a decade-long battle with the Kitchenuhmaykoosib Inninuwug (KI) First Nation at the Big Trout Lake platinum group elements property in northwestern Ontario, Platinex (PTX-V, PANXF-O) president and CEO James Trusler welcomes many of the new provisions. But he says he’s unsure if the new act will have any effect because of the compromises needed to make it work.

Trusler says some of NAN’s demands are impractical. “They are still a long way apart, the government and the NAN leadership,” he says.

Trusler has blamed the government for trouble Platinex has had gaining access to its claims in northern Ontario, criticizing the province for allowing his company to stake the property without consulting with local First Nations in the first place. The KI band is firmly against any exploration activity on its traditional territory (not reserve land, but territory that has traditionally been used by its members for hunting, trapping, etc.). KI has refused access to Platinex despite a Supreme Court order upholding the company’s rights to access its property.

“Right now there are laws, and people don’t obey the laws and those who are supposed to enforce them don’t enforce them,” Trusler says.

In 2008, Ontario led the country in mineral production with $9.6 billion in new wealth generation and about $6.6 billion in production coming from 27 operating mines in northern Ontario. The province also attracted more than $667 million in high-risk capital that was spent on exploration activities — about a quarter of the total amount spent across the country. The industry pays about $600 million in corporate taxes and a collective salary of $1.2 billion.

The new act will also introduce new environmental regulations, such as the rehabilitation of exploration sites. The act follows the provincial government’s commitment to protect at least 200,000 sq. km or 50% of the province’s far north from development, an initiative that was first announced in July 2008. Mining claims currently cover about 3% of the region and under the act, no new mines will be opened in the north without an approved community-based land-use plan.

The ministry expects to do a second reading of the bill before the summer break, to be followed by development of regulations with input from the industry and aboriginals over the rest of 2009 and implementation of the programs throughout 2010. The initiative to modernize the act began in early 2007.