Ontario Mining Act and Far North Act upsets Aboriginal groups…any many others – by Gregory Reynolds

This article appeared in the Winter 2010-11 issue of Mining Life & Exploration News (Canada’s Quarterly Mining Magazine)

Ontario has a new Mining Act and also a special law intended to protect 225,000 square kilometres of the Boreal Forest, the Far North Act. Then why are so many people unhappy with these pieces of legislation?

Basically because many Aboriginal organizations, environmental watchdogs and mining groups believe when the verbiage is stripped from the core of the two laws, they leave total control in the hands of the government.

Many argue both the mining sector and Aboriginals are worse off today than before the process started to protect the industry while respecting constitutional rights and Treaty obligations involving natives. There is a saying, the legislature passes laws but the devil is in the regulations created by bureaucrats.

It is the process that will lead to the regulations under the acts that have many organizations concerned today and worried about tomorrow.

The Mining Act (Bill 173) passed Oct. 29, 2009 is seen as a set of good intentions completely lacking in substance and loopholes in the Far North Act make consultation and land planning a waste of time as the final say in all matters belongs to the minister of natural resources.

The Nishnawbe Aski Nation (NAN)will not recognize the Far North Act (Bill 191), despite being passed Sept. 23 in the Ontario legislature.

Shortly after the bill was passed, NAN Deputy Grand Chief Mike Metatawabin said the Ontario government cares little for the concerns of First Nations and Northern Ontarians.

“It is a disappointing day for all of us who spent tireless hours opposing Bill 191 as our opposition was obviously ignored,” Metatawabin said.

“As we have stated time and time again, NAN First Nations and tribal councils do not and will not recognize this legislation on our homelands. We will continue to uphold our Aboriginal and treaty rights and jurisdiction over our land. The real fight is just beginning.”

Metatawabin said in a Sept. 22 press release that NAN communities will not compromise their rights as treaty people.

“The law can be passed by the Province of Ontario, but this does not promise industry free access to our lands,” Metatawabin said, noting that NAN will maintain its former statements that uncertainty and unrest are imminent.

NAN said its First Nations have not been properly consulted on Bill 191, despite the Ontario’s continued attempts to state otherwise.

Despite the opposition, the Ministry of Natural Resources (MNR) touted the legislation, saying First Nation approval of land use plans is now required by law, a first in Ontario history. An MNR press release said First Nation communities can now identify and approve the areas in the Far North that require protection as well as those areas suitable for economic development.

“With the Far North Act, we have accomplished something ambitious, something exceptional,” said Natural Resources Minister Linda Jeffrey. “Together we are entering a new era of social prosperity, economic certainty and environmental protection in the Far North.

It is our responsibility as global citizens to make wise land use decisions for this vast and unique part of the province and the world.”

The government said land use plans are key to developing the Far North, including the region known as the Ring of Fire, which contains one of the world’s largest deposits of chromite.

The Ontario Prospectors Association on Oct. 2 expressed strong opposition to Bill 191, saying “the OPA believes the present form of the Far North Act will cripple exploration and related economic development in Ontario’s Boreal Forest lands, an area recently demonstrated once again to hold vast deposits within the Ring of Fire, chromite (stainless steel) and copper, nickel and platinum group elements (auto pollution controls) discoveries.”

In his recent annual report, Gord Miller, the Environmental Commissioner of Ontario, makes it clear that there are serious flaws in how Ontario currently oversees the mining industry. The report’s chapter on mining focuses on the new Mining Act and the problems occurring in the area of Northern Ontario that industry has dubbed the Ring of Fire.

While recognizing improvements under the new Mining Act, the commissioner said that the environmental concerns of non-governmental organizations and the public are not adequately reflected in the new law.

Under Bill 173- the Mining Amendment Act, 2009, Minister of Northern Development, Mines and Forestry, Michael Gravelle, has stated that his ministry will consult on the development of the regulations and policies dealing with Aboriginal consultation throughout the mining sequence, including the criteria and the process for withdrawing sites of aboriginal significance; exploration plans and permits, including terms, conditions and requirements for early exploration; clarifying the existing consultation process for closure plans for advanced exploration and mine development projects; and a dispute resolution process for Aboriginal-related mining issues.

As of November 2010 there were consultations for regulatory development in the following eight key areas:

1) Prospectors Awareness Program

2) On-line Staking

3) Exploration Plans and Permits

4) Assessment Work

5) Protection of Sites of Aboriginal Cultural Significance;

6) Aboriginal Consultation

7) Dispute Resolution

8) Private Surface Rights.

It is expected that the different sections of the Act will be proclaimed and come into force as they are developed.

Gravelle has referred to Bill 173 as a “balanced piece of legislation” resulting from “comprehensive consultation” and says that, “Bill 173 is aimed at bringing our mining legislation into harmony with the values of today’s society while, at the same time, promoting strong, vibrant and competitive minerals industry.”

Opponents note that Under Section 2, it states that the purpose of the new Mining Act is, “to encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult and to minimize the impact of these activities on public health and safety and the environment.”

Many groups think the province is committed to the first part about encouraging mineral developments but remains determined to avoid the issue of recognizing Aboriginals treaty rights.

During debate on Bill 171, Timmins-James Bay MPP Gilles Bisson said the Far North Act remains deeply flawed.

“The act gives the government blanket powers to override local First Nations’ land use decisions and does not respect Aboriginal rights to accommodation,” Bisson said.

Bisson said the problems with Bill 191 go beyond the issues with First Nations.

“Chambers of commerce, prospectors and developers, mayors, and business owners have all spoken out against the Far North Planning Act. So if everyone is against it, why are they proceeding with it?”
Nishnawbe Aski Nation (NAN) represents 49 First Nation communities within the territory of James Bay Treaty 9 and the Ontario portions of Treaty 5.

Nishnawbe Aski Nation (known as Grand Council Treaty 9 until 1983) was established in 1973 as the regional organization representing the political, social and economic interests of the people of Northern Ontario.

MiningWatch counts among the Mining Act flaws:

  • Broad ministerial discretion
  • No requirements for revenue sharing with First Nations
  • Provincial override on community land use planning designations
  • No provincial authority to cancel mining claims or leases
  • Ability to stake mineral claim in world heritage sites, conservation areas, endangered species habitats and provincially significant wetlands and woodlands