Ontario gov’t seeks input on Mining Act revisions

While there was some controversy at a recent public meeting in Toronto on changes to Ontario’s Mining Act, there was also a great deal of consensus — especially on the need for consultation with First Nations. First Nations representatives also made an eloquent case for their communities to share the revenues from mining in their areas.

Part of a series of province-wide consultations, Michael Gravelle, Ontario’s Minister of Northern Development and Mines was at the meeting held in early September, seeking suggestions and comments from the public.

Addressing the crowd of about 150 before the consultation, Gravelle walked a fine line, seeking to satisfy industry, northern and rural communities and First Nations. Gravelle said the new Mining Act should support development that benefits all Ontarians, and that the province must maintain an attractive investment climate for mining companies and support a vibrant, competitive and prosperous industry — but also recognize local concerns. “We want to ensure that

this potential and this prosperity is developed in a way that respects communities. In short, our task is to find a balance, and this is where we very much need your help. . . We believe we can achieve the balance we are striving for,” he said.

The ministry has identified five policy issues that the consultation process should address. The first is the mineral tenure system, security of investment, and the free entry system. The second is aboriginal rights and interests as they relate to mining development. The third is regulatory processes for exploration activity on Crown land. The fourth is land use planning in Ontario’s Far North. And the fifth is private rights and interests relative to mining development (mineral rights versus surface rights).

The ministry will accept submissions until mid-October, and plans to bring forward the proposed legislation by Christmas. If the legislation is enacted into law, the new rules will come into effect next year, and should bring much needed clarity and certainty to the mining industry.

In an interview with The Northern Miner, Gravelle downplayed the amount of conflict that exists between mining companies and First Nations — such as recent high-profile incidents involving private uranium explorer Frontenac Ventures and Platinex (PTX-V, PANXF-o), both of which have been stopped from exploring by First Nations.

“For every bad example there are probably twenty good examples of relationships between mining companies and First Nations communities,” he said. “What’s very clear, and it’s something that our government feels very strongly about, is that there needs to be the earliest possible consultation and accommodation with First Nations before companies move forward.”

That said, both First Nations communities and the mining industry have complained about a lack of clarity surrounding the rules and obligations governing their relationship. Gravelle said those concerns would be addressed.

“Another very clear goal of the consultation process and our efforts to modernize the Mining Act is to provide clarity and certainty to the minerals sector, to the First Nations communities, and to all those involved in mining,” he said. “One of the reasons why we are moving the process forward in the fashion that we are is that we recognize how important it is to provide this clarity and certainty as soon as possible.”

In an interview with The Northern Miner, Peter Moonias, chief of the Neskantaga First Nation (population 370), located near Attawapiskat Lake, 425 km north of Thunder Bay, made it clear that a requirement of First Nations communities is that companies consult with them before exploration begins. But he went further, calling for changes to Ontario’s free entry system, which allows anyone to stake claims and explore for minerals on Crown land.

“I want to see that the Mining Act changes with regard to free entry. My First Nation does not support free entry. This is our traditional territory.”

Still, Moonias, who is also the spokesperson of the Matawa First Nations (population of 8,200) — a tribal council of nine First Nations headquartered in Thunder Bay, was optimistic that miners and aboriginals could co-operate for mutual benefit.

“We can work together by consulting First Nations, and both parties can win.”

He added: “We also want to get some recognition on revenue sharing.”

In a speech prior to the consultation, Gravelle called Ontario’s mining industry a “powerhouse.” The industry generates revenues of $10.7 billion — 28% of the total mining revenues in Canada — and provides employment to more than 100,000 people.

Gravelle said that in addition to finding a balance between conservation and development, the new act should modernize the way mining companies stake and explore their claims, so as to be more respectful of private landowners and aboriginal communities.

The Act should create a process of appropriate consultation and accommodation with aboriginal communities — something that both First Nations groups and the mining industry have been asking for. He said many mining companies are already using such a process, and are determined to deal fairly and respectfully with their First Nations and Mtis neighbours. The result is a growing number of agreements and partnerships.

Gravelle said that the industry has indicated that it does not want a protracted process. Security of mineral tenure was identified as a crucial consideration and a way to ensure healthy investment climate.

Issues that have been raised by communities include mitigating the conflict between surface and mining rights, possibly by re-unifying rights. Another issue is the safety of uranium exploration and mining. Frontenac’s exploration program has stirred calls for a moratorium on uranium mining in Ontario.

Two senior ministry officials, Christine Kaszycki, assistant deputy minister, and Susan Capling, director of the corporate policy secretariat, outlined some other issues that stakeholders have brought up so far, and which the new legislation will address.

In addition to security of mineral tenure — without which companies cannot raise capital — the ministry recognizes the key issue of land access.

In the Far North, the opening of new mines will require community land use plans supported by local aboriginal communities, according to the Far North planning initiative.

The new legislation should include a commitment to resource benefit sharing for aboriginal communities from resource development in their areas.

Since the consultation process started, the ministry heard that communities want to be consulted and accommodated at all stages of the development process. They also want meaningful participation in land use issues and in decision-making on economic development, and they want a greater measure of control over development on traditional land.

So far, the ministry has issued guidelines on when and how to engage aboriginal communities. It has initiated projects to protect areas of cultural and spiritual significance from staking, and it is providing aboriginal communities with information about claim staking and exploration activity in their areas.

To address possible conflicts related to exploration activity on private land, the new legislation may introduce map staking in southern Ontario. It may include rules on restoration of surface conditions on private land. It may also designate some private land as unavailable for staking, and introduce notification rules for exploration activity, requiring landowner consent.

Asked about the government’s announcement in July that half of Ontario’s northern boreal forest will be closed to mining, Gravelle responded that a large area is still available for development.

“(This is) 50% of a very vast tract of land. Of the entire North 500,000 square kilometres, certainly half is open to mining development.
The key will be that no mining development will go ahead without the agreement of the First Nations involved. So the opportunities that are in the North can still be developed.”

The public consultation used the format of a town hall meeting. Participants put forward their views, concerns and suggestions, and ministry officials noted them for use as inputs to the new legislation. Several key issues emerged:


David Paul Achneepineskum, CEO of Matawa First Nations, said that consent must be obtained prior to staking. Consent should be obtained at the community level, and all the community must consent, because this would oblige future community leaders. He emphasized the duty to consult, accommodate and get consent.

Achneepineskum also said he wants treaty issues to be resolved in Ontario, for example the James Bay Treaty No. 9, which covers Ontario’s Far North. Resolution of treaty issues should include land tenure and resource revenue sharing. Under the broad heading of capacity building, he wants to see opportunities for investment, business and jobs for First Nations, and he would like First Nations to be given the resources to participate effectively in the consultation process and to work with government and the industry.

Projects should be subjected to land use plans that consider mining, forestry, energy and environmental protection, as well as cultural and heritage issues, Achneepineskum said. He believes that community engagement builds the foundation for successful resource development.

Other First Nations speakers said the duty to consult should not be left to industry, as First Nations are ill equipped to negotiate effectively with companies that have more resources, and that more subcontracting work should go aboriginals.

An innovative suggestion came from a chartered accountant who said that resource revenue sharing should be done via either a mining tax or a royalty regime, providing a uniform, standard mechanism for collecting and distributing these revenues.

A number of people directed the ministry to existing resources that could be used to help put together the new Mining Act. For example, performance standards issued by the International Finance Corporation, dealing with land acquisition and involuntary resettlement, and with indigenous peoples.

Another resource is the Prospectors and Developers Association of Canada (PDAC), and its “e3” environmental excellence in exploration toolkit. The kit, available at www.pdac.ca, covers best practices in environmental and social responsibility for the mining industry. The PDAC has also developed a sustainability framework, and a draft version has been published.

Environmental issues

Concerns around uranium exploration and mining emerged as an important theme. One concern was about radon gas and radioactive dust released during bulk sampling. Another worry was about piercing and contamination of aquifers from drilling during uranium exploration. People were also concerned about pollution caused by surface runoff from tailings on abandoned uranium mines. Residents are unaware of radiation hazards, and some were worried they may pick up a radioactive rock without realizing the risk.

There were calls for uranium mining to be closely regulated in view of the potential environmental impact, and some called for a moratorium on uranium exploration and mining. The matter is exacerbated by the fact that substantial uranium exploration activity is taking place in southern Ontario, close to towns such as Haliburton.

Some speakers brought up safety and environmental issues posed by abandoned mines where reclamation has not taken place. One person requested that the province tackle these sites to eliminate risks to people and the environment.

The president of a junior exploration company responded that all exploration and mining activities are already subject to environmental regulations, and environmental rules are much tougher for mining than for other industries.

A speaker from anti-mining NGO Mining Watch asked for provincial environmental assessment throughout the mining cycle. He suggested that the mining industry not be given privileged access to land. He believes that the industry avoids certain environmental regulations, so it should be subjected to provincial environmental assessment. He said the Mining Act should be more comprehensive, so it covers more than just exploration, closure and rehabilitation and suggested that currently, municipal planning takes a back seat to mining interests. He also proposed a moratorium on uranium mining.

One speaker said that since exploration is an industrial activity, regulations that govern industrial activities should be respected. This includes environmental protection, and exploration should fall under the Ontario environmental assessment process. Regulatory oversight is insufficient, he claimed and health and safety issues are not properly addressed.

Land rights

One subject that came up repeatedly was exploration on private land. On land where surface rights belong to one landowner, while mineral rights may belong to a company, exploration may cause a conflict around rights to the property, environmental damage and taxation.

A common suggestion was to reunite surface rights and mineral rights. One speaker asked that the Mining Act treat private land and Crown land differently. Another said that owners should have the right to be consulted before mining and exploration activities start. Property rights should be respected, and communities should be able to plan for proposed mining in their vicinity.

A related issue was the potential conflict between cottagers and mineral exploration activity. This issue can arise in southern Ontario, and is related to issues of surface rights and uranium exploration. Naturally, cottagers are worried that exploration and mining activity could disturb their areas. One suggestion was to make exploration and mining subject to the regional planning process. Taking this even further, it was suggested that municipal approval mechanisms for land use planning should extend into Crown land, in other words, municipalities should have planning jurisdiction over Crown land as well as private land. Another suggestion was that the Mining Act should no longer trump the Ontario Planning Act.

Wally Rayner, president of the Ontario Prospectors Association, asked that the new law not hinder and slow down exploration, investment and mining, something that could make Ontario less desirable as a mining destination. He emphasized the importance of security of tenure.

Staking methods

A number of prospectors spoke out against map staking, saying it favours large companies at the expense of individual prospectors, and may be detrimental to the viability of the prospecting business. This would be a negative development, they suggested, because so many deposits are discovered by individual prospectors.

Submissions to the Ontario government regarding changes to the Mining Act can be made until Oct. 15. The e-mail address for submissions is miningact@ontario.ca and a copy of the discussion paper is available at www.ontario.ca/miningact. The phone number for questions and enquiries is 1-888-415-9845.

Submissions can also be made to: Ministry of Northern

Development and Mines 99 Wellesley Street West,

Room 5630 Toronto ON M7A 1W3


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