By Lloyd Dolha
Anishinabek Nation leader John Beaucage applauded the new legislative process undertaken by Ontario to amend its century-old Mining Act. “The Mining Amendment Act will be the first piece of provincial legislation that expressly recognizes and affirms First Nations Treaty and aboriginal rights,” said the Grand Council Chief, who is currently campaigning for leadership of the Assembly of First Nations (AFN). He called the new collaborative approach “innovative,” and said, “It is respectful to the recognition of our rights and indicative of the province’s commitment to working with First Nations on a government-to-government basis.”
Introduced April 30th, the Mining Act includes provisions to protect First Nations from mining development on lands that have culturally significant sites. Beaucage said the new legislation means the Crown, industry, and all stakeholders must recognize and affirm the treaties. “Ministers Gravelle and Duguid deserve credit for their vision and have shown real leadership at the Cabinet table,” said Beaucage. “We hope this process is reflected in the development of all future laws that may have an impact on First Nations.”
Proposed changes to Ontario’s Mining Act could make significant strides in Aboriginal consultation, provide clear rules for industry, and reduce the environmental impact of mineral exploration. The proposed legislation promotes balanced development that benefits all Ontarians. If passed, it would modernize the way companies stake and explore their claims in order to be more respectful of private landowners and Aboriginal communities. At the same time, it would support a vibrant minerals industry that could help many communities realize their economic and social aspirations.
According to Michael Gravelle, minister of Northern Development and Mines, the legislation includes a number of ground-breaking provisions that could make Ontario a national leader in mineral resource stewardship, including incorporating aboriginal consultation in mining legislation and regulations and the introduction of a dispute-resolution process for Aboriginal-related issues in mining. The new act also requires Aboriginal awareness training for mining companies in order to obtain a prospector’s license. Mining is Canada’s largest private sector employer of Aboriginal people and provides Ontario with a trade surplus of about $3.3 billion annually. The 2009 Ontario budget has committed $40 million over three years for initiatives to support Mining Act modernization.
During six months of consultations, more than 1,000 people and groups participated in public and stakeholder sessions across the province. The Environmental Bill of Rights Registry provided their input, and the Ministry of Northern Development and Mines carried out comprehensive Aboriginal consultations to ensure the broadest possible aboriginal participation. Ontario could become the first jurisdiction in Canada to expressly recognize Aboriginal and treaty rights in its mining legislation and enable a regulated dispute resolution process for Aboriginal-related mining issues. “Working together with our aboriginal partners has helped contribute significantly to improving the Mining Act. By listening to our partners we can help build stronger aboriginal communities, making for a stronger Ontario,” said Minister of Aboriginal Affairs Brad Duguid.
Prospectors and companies would be required to notify aboriginal communities of plans for significant exploration activities within their traditional lands and provisions to enable restrictions on prescribed prospecting and exploration activities. The proposed legislation would address conflicts between mineral exploration companies and surface rights holders who do not hold the mineral rights on their lands. For instance, Ontario would broaden the list of lands not open to staking and require enhanced notification of private land owners, after claim staking and prior to exploration. In addition, a map staking system would mean prospectors won’t need to enter a property to stake mining claims, meaning sensitive areas can remain undisturbed.
Ontario’s proposed legislation would increase clarity for the mineral industry by outlining requirements for consultation (and accommodation as appropriate) with Aboriginal communities, while maintaining fair and competitive access to minerals. Lower-impact activities would be encouraged, and activities with higher environmental impact would require exploration permits. The proposed legislation would set out a clear framework for responsible management and sustainable development of Ontario’s mineral resources and foster better relationships between Aboriginal communities and mining companies. New legislation can help ensure that no new mines will open in the Far North unless there is an approved community-based land use plan.
“Consultation and accommodation of First Nations interests on our traditional territories is absolutely necessary,” said Beaucage. “However, we have to move beyond basic consultation towards engagement and signing of impact-benefit agreements between mining companies and First Nations.” An Anishinabek Nation consultation process produced 31 specific recommendations of over 100 submitted by First Nations, but some of Ontario’s First Nations leaders were not as impressed with the pending legislation. The Grand Council of Treaty 3 said the proposed changes are a good start, but they don’t go far enough to ensure First Nations communities’ rights.
While encouraged by provisions aimed at protecting First Nations rights, the ministry has to continue working with the communities while it develops regulations falling under the proposed legislation. Sarah Mainville, a lawyer and consultant to the Grand Chief’s office said in an interview, “The real substantive focus is now on the regulations. What is the definition of culturally significant sites? We have to develop and define that together. Withdrawal policies, this dispute resolution mechanism, all of that should be developed together.”
Chief Isadore Day of the Serpent River First Nation is not convinced changes to the act are dealing with all the important issues. “We are not seeing uranium exploration and development issues being swept under the rug,” said Chief Day. The Serpent River First Nation is located on the shores of Lake Huron and due south of Elliot Lake, once called the Uranium Capital of the World. “Uranium is such a critical discussion, and Ontario and Canada are showing no responsible collaboration during this process,” said Day. “We are home to a major lake basin that has been historically impacted by radioactive mineral waste from spills and run-off from mine tailings between the 1950’s and the 1960’s. It concerns me a great deal that Ontario refuses to acknowledge that uranium mining needs special triggers within the act that explicitly define, determine, and direct appropriate requirements as it pertains to uranium exploration,” said the chief.
For some, there seems to be a disconnect between provincial regulations on uranium exploration and federally regulated jurisdictions on production and waste management of uranium. This legislative gap between jurisdictions will mean huge problems should the industry wish to proceed in the future. “Its clear that there is a need for harmonization triggers that ensure there is a responsible and consistent thread of due diligence between Canada and Ontario,” said Chief Day. “It’s very discouraging to watch two governments work in a silo mentality on such a major issue that has extreme environmental concerns attached.”