Commentary: Ontario’s Mining Act amendments: trading priority for clarity?

Ontario’s Mining Amendment Act, 2009, introduced by Northern Development and Mines Minister Michael Gravelle on April 30, tilts the field away from traditional industry rights in favour of aboriginal rights and surface rights holders.

Contrary to popular opinion, the Mining Act as it now stands does not give absolute licence to prospecting and staking, but the proposed amendments greatly expand the restrictions.

Industry can take comfort, though, from the clarity and certainty that should — depending on regulations not yet drafted — be the result.

In particular, the bill introduces map staking to Ontario, bringing the province into the modern era and in line with most other provinces. This should reduce potential for confrontation in the field. Ground staking will remain an option.

By abolishing the century-old free-entry system for staking and exploration, Bill 173 plays to two constituencies: First Nations, and rural and cottage land owners.

Though, as Susan Kirwin reports (T.N.M., May 11-17/09), some First Nations may want more (e.g. a veto over any prospecting on traditional lands), the very substantial changes proposed in the bill should please both.

Indeed, the stated purpose of the Mining Act is to “encourage. . . development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights. . . including the duty to consult. . .”

Here are the highlights of the act:

Southern Ontario

South of the French and Mattawa rivers, free entry is abolished: Mining rights on private lands are to be “withdrawn” from prospecting, staking, sale and lease (existing claims, leases and licences are to be unaffected unless lapsed).

This is the culmination of the Frontenac Ventures case concerning the blockade of a uranium-mining site north of Kingston.

There, an alliance of local landowners with the Ardoch Algonquin non-status Indian group opposed Frontenac’s exploration efforts, and the locals’ fears of uranium exacerbated the issue, despite a disinterested engineering opinion from Queen’s University denying risk.

It got rancorous: The company sought $100 million in damages, a respected Algonquin supporter and Queen’s lecturer and counsellor was jailed for contempt, and posters denouncing free-entry sprouted across eastern Ontario.

The North

North of North Bay, the regime is less draconian. A surface rights owner may apply to have mining rights withdrawn, and the Minister is then to consider the “mineral potential of the lands” and any other prescribed criteria.

Again, existing claims, leases and licences would be unaffected, and mining rights once withdrawn may be reopened on application.

The “Far North” is to have special protection. Ontario’s Far North Planning Initiative was announced last July, and the Minister of Natural Resources is expected to table legislation shortly.

The Far North lies above the current northern limit of commercial forestry operations and land-use planning direction, running east to west roughly from 50º N, north of Hearst, to about 51º30’N, well north of Red Lake (see map at www.mnr.gov.on.ca).

Covering over 40% of the province, the Far North includes most of Treaty 9 and portions of Treaties 3 and 5, and contains 31 mostly Nishnawbe-Aski communities comprising 24,000 people, and two non-aboriginal communities.

A new mine may be opened in the Far North only if a “community based land use plan” exists for the area and the mine is not inconsistent with it. Cabinet may override this “if the project is in the social and economic interests of Ontario.”

Existing claims, leases, patents and licences are grandfathered.

Oil & gas

The geographical patchwork in Part IV of the Act, dealing with oil and gas, is removed; the entire responsibility for these will be that of the Ministry of Natural Resources.

With natural gas and petroleum no longer dubbed “minerals,” the need to stake a claim for these in the mid-north (French-Mattawa rivers to 51º N) is eliminated.

Prospectors’ obligations

Owners of surface rights on lands on which claims are staked are to be notified by the licensee within 60 days.

Of note, applicants for a prospector’s licence must successfully complete a new “prospector’s awareness program” and current licensees must complete this program within two years of proclamation of this provision.

Modules will engage aboriginal, social and environmental issues, and will likely draw on the Prospectors and Developers Association of Canada’s e3 Plus guidelines (see www.pdac.ca/e3plus/).

Exploration plans

Listed exploration activities will require an Exploration Plan; those of higher impact will need an Exploration Permit.

This is to be overseen by one or more Directors of Exploration, to be appointed. A principal function of the Exploration Plan is to ensure that appropriate Aboriginal consultation has occurred.

Regulations are key

The bill is but a skeleton, awaiting the flesh of regulations. Virtually all of the bill’s main provisions are to come into effect independently by proclamation (i.e., by cabinet action, on a date later than the bill becoming law).

Before they are drafted, areas sensitive for both First Nations and industry will require extensive consultation. References to staking methods, withdrawal of mining rights from private lands, aboriginal communities, and the Far North must therefore await later proclamation.

The Supreme Court of Canada laid down the “duty to consult” in 2004-05. Under the bill, the duty is to be codified by regulations “governing all types of consultation under this Act, including. . . providing for the delegation of certain procedural aspects of the consultation.”

To all this, let me add the following comments:

1. The introduction of map staking is a significant advance; had it been in place previously, confrontations may have been avoided.

Ground staking presents particular difficulties on traditional aboriginal lands. For obvious reasons, staking is not an activity that can be advertised in advance, yet encounters between aboriginal hunters and licensees engaged in staking are likely to sour the climate for future consultation.

Any activity on the ground, however tentative, or even announcement of plans without prior consultation, is likely to create apprehension and hostility. Suspicion thus aroused may pervade all future dealings.

The advent of map staking in Ontario is a major step to removing this irritant. It will advance the building of trust, which is consultation’s fundamental element.

Consultation should start at the earliest possible moment in the sprit of relationship building, as first impressions colour the entire relationship.

2. Except for the Algonquin of the Ottawa Valley, currently negotiating a claim agreement, all Ontario First Nations have treaties or pre-confederation surrenders.

The consultation obligation here is triggered by exploration activity’s potentially adverse effect on a treaty right such as hunting.

It is not triggered by mere entry onto traditional lands, and First Nations claiming consent rights or a veto over benign prospecting do not find support in the case law.

That said, legalities and trust do not mix well; early trust-building will reap greater rewards than standing on rights.

In the event of a dispute respecting consultation, or established or asserted aboriginal or treaty rights, a resolution process with broad scope is provided for.

Though First Nations have dominated the consultation agenda, it is to be remembered that “aboriginal” includes the Métis. We can expect to hear more on this front, and as their rights are not treaty-based, the issues will be more nebulous.

3. A quick read of the bill might lead one to think it is industry that is obliged to consult. As the Supreme Court made clear in 2004, the obligation is the Crown’s, and only “procedural aspects” may be delegated.

So, while relationship building by a proponent from day one is essential, it cannot supplant Crown consultation.

And the dilemma continues: The obligation rests with the Crown, but the impact of its discharge falls on the proponent. This is inevitable.

But proponents can hope that clear standards and direction from regulation will bring efficiency, clarity and certainty to this field — the ultimate objective of which, as the Supreme Court has said, is reconciliation.

— The author is a lawyer in Ottawa with an interest in constitutional, resource and energy issues. He is a member of the Ontario and British Columbia bars, and may be reached at jedmond@sympatico.ca.