COMMENTARY: Modernizing Ontario’s Mining Act

–The following are exerpts from a discussion paper on revisions to the province’s mining legislation, called Modernizing Ontario’s Mining Act, produced by the government of Ontario. The report, published in August, is aimed at providing transparency during the process.

Regulation of mining in Ontario began in 1845, when the province was still known as Upper Canada, through a collection of statutes that regulated exploration rights, licensing, reporting requirements and land tenure, and established revenue streams, such as taxes, royalties and fees.

In 1864, these statutes were consolidated through the Gold Mining Act, which governed “quartz” and gold mining. It also introduced mining inspectors to administer and enforce the act.

After Confederation, the Gold and Silver Mining Act of 1868 added provisions that addressed exploration on private and Crown lands, and implemented a more comprehensive mineral royalty system. This was quickly succeeded by the Mining Act of 1869, which expanded the scope of provincial legislation to include regulations on the broader array of ore and mineral commodities discovered in Ontario around that time.

A major revision of the Mining Act in 1906 introduced several key features of the current act, including efficient processes to secure interests in mining claims through work requirements and a dispute resolution mechanism.

The Mining Act was periodically amended throughout the 20th century.

Changes included enhancements to the authority of the mining and lands commissioner; introduction of a domestic processing requirement following the First World War; and various exclusions and withdrawals of land pertaining to resources such as timber, aggregates, hydroelectric generation and other purposes in the public interest.

Major amendments to the Mining Act in the early 1990s saw the addition of Part VII, the requirements for mine closure and reclamation. Further amendments in 2000 included requirements for aboriginal consultation on closure plans.

In 2007, the government established the framework for Ontario’s emerging diamond industry by augmenting the Mining Act with the province’s first diamond regulations to enable the valuation of diamonds in Ontario, as well as the payment and administration of diamond royalties.

The “Good Samaritan” amendment to the Mining Act was also passed in 2007 to allow the private sector to conduct voluntary mine rehabilitation on certain Crown-held abandoned mine sites without exposure to undue liabilities.

What we’ve learned so far

In February 2007, the Ministry of Northern Development and Mines released a discussion paper, Toward Developing an Aboriginal Consultation Approach for Mineral Sector Activities, and initiated a collaborative engagement process with the goal of developing an improved aboriginal consultation approach.

The ministry held community-based discussions across Ontario, met with several political territorial organizations and tribal councils, as well as the Mtis Nation of Ontario, and held several facilitated workshops. Through these discussions, we learned that aboriginal communities have a variety of views on mineral sector activities, and when and how they want to be consulted.

Aboriginal communities told us:

• They want to be consulted and accommodated at all stages of the mining sequence, including preliminary exploration;

• They desire meaningful participation in decisions around land use and economic development;

• They desire a measure of control over development within their traditional territories, including proposed activities before exploration work begins; and

• They require assistance to build capacity that would allow them to participate fully.

Based on what we have heard, the ministry has implemented a transitional approach to consultation that includes a pilot project to protect sites of significant spiritual and cultural value from staking; notifying new mining claim holders on when and how to engage aboriginal communities; and providing quarterly maps and reports to First Nations showing any recent claims recorded in their general vicinity.

The ministry has also worked on building relationships with First Nation communities, leading to memoranda of understanding or communication with three aboriginal communities in the Far North. It has pursued further collaboration under the Far North Geological Mapping Initiative with several others.

The ministry has consulted on issues of concern to private property owners, with particular focus on southern Ontario.

Based on advice from the minister’s Mining Act advisory committee, which includes representation from the mineral industry, surface rights stakeholders, tourist operators, environmental organizations and aboriginal organizations, the ministry posted proposed Mining Act changes on the environmental registry in July 2007. Proposals for areas where surface rights are privately held included provisions that would place greater restrictions on areas open to staking, stronger notification requirements after staking and prior to exploration, as well as the introduction of map staking. Input received is reflected in this discussion paper.

The ministry undertook extensive consultations across the province on Ontario’s Mineral Development Strategy. Input was received from 38 organizations, Northern Development Councils, First Nation and Mtis leadership, several First Nations communities, tribal councils and political territorial organizations.

Participants stressed the need for stronger relationships between aboriginal communities and the mineral sector, as well as enhanced communication among all groups.

The ministry has also considered comments received through other engagement vehicles, including current discussions on the development of the Growth Plan for Northern Ontario. Northerners have told us of the importance mining plays in the economic prosperity of their communities.