Monday, November 23, 2009

Voices from the Northshore

Noopemig-Voices from the Northshore

I received an email from “Northshorewoman” regarding my blog-entry on the Mining Act receiving Royal Assent. The email reads as follows:

“I can see that there will be a lot of problems ahead such as, although it is definitely an improvement from the previous Act that allowed free access to lands for any Jack, Joe, Jill or corporation, the language seems such that much damage can still occur on traditional lands. Problematic to me is that claims prior to this amendment are outside of its legal arm. Also problematic for me, is that the language is such that while consultation of First Nations communities is required, their conclusions are not definitive or binding on decisions made. Is this true? Does the new Act still make First Nations voices a player in the power relations but not a player with veto?”

Upon introducing the Bill 173, Minister of Northern Development, Mines and Forestry Michael Gravelle stated: “The point, … is that this comprehensive consultation, and the discussion it engendered, has produced a balanced piece of legislation.”

“The initial process of engaging with the aboriginal communities and stakeholders about the province’s minerals industry prepared our government well for the extensive and comprehensive consultation we undertook to prepare for amending the Mining Act.”

The Act states that “a dispute resolution process is established for disputes relating to Aboriginal consultation occurring under the Act, and it calls 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.”

The Supreme Court of Canada (SCC) in its various rulings stated that the duty to consult and accommodate becomes engaged, “when the Crown has some knowledge of the existence of an aboriginal right to title and contemplates conduct that might adversely affect it.” It has also said that the duty to consult arises, “if the conduct might adversely affect aboriginal rights to land covered under treaty.” Along with these triggers, the SCC has referenced “good faith negotiations, upholding the honour of the Crown, meaningful consultation and reconciliation,” amongst other noble terms.

In the Mikisew Cree decision of 2005, the Supreme Court said, “it is not consistent with the honour of the Crown, in its capacity as fiduciary, for it to fail to consult with a First Nation prior to making a decision that infringes on constitutionally protected rights.” In another ruling, the court has said that several SCC cases have already stated that the honour of the Crown may require consultation prior to making a decision and “This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.”

 Under Bill 173, the “new” Mining Act, consultation may occur once a person has submitted an exploration plan, in accordance with any prescribed requirements, “including any Aboriginal consultation that may be prescribed.” This person will have had “applied for and been issued an exploration permit,” from the Director of Exploration, who may be appointed by the Minister from the officers and employees of the Ministry. This Director shall consider under S. 78.3 (2) (b), “Whether Aboriginal consultation has occurred in accordance with prescribed requirements, which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”

A dictionary defines accommodation “as an adjustment or adaptation to suit a special or a different purpose, a convenient arrangement; a settlement or compromise.” To accommodate is defined as to “adapt, harmonize or reconcile.”

So, to your question; are the conclusions of consultations with First Nations definitive (and are they) binding on decisions made?  It appears that the decision lies with the Director of Exploration, who has been selected from amongst the officers and employees of the Ministry, who may consider “any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”  The Director, however, must first decide, “whether Aboriginal consultation has occurred in accordance with any prescribed requirements,” leaving the Ministry to make such determinations.

There is, however, a dispute resolution clause for Aboriginal consultation where the Minister can designate one or more individuals, or a body, “to hear and consider disputes….relating to consultation with Aboriginal or treaty rights or to the assertion of Aboriginal or treaty rights, including disputes that may occur.”

Once a report and recommendations  are made by the designated body to the Minister, the dispute resolution outlines the Ministers powers dealing with Aboriginal consultation  in the permitting, advanced exploration and the mine production stage in the following manner:

a)      Confirm, vary, rescind a Directors decision for a section 78.3 exploration permit.
b)      Provide such further direction or support respecting consultation for the advanced exploration and mine production stage.
c)      Take any action that he or she considers appropriate in the circumstances.

While the First Peoples can still provide input during the consultative phase under the Mining Act, it is up to the Ministry and its Minister to make the ultimate decisions which answers your second question about a veto.

The Supreme Court of Canada has ruled that, “The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.”

Premier McGuinty’s words of “a new respect and working relationship with First Nations, a true partnership, a greater say to First Nations concerning development projects on their traditional lands, including a share of the benefits from resource projects, continue to resound loud and clear throughout Noopemig.

Thursday, November 5, 2009

Mining Act receives Royal Assent

Approximately six months after it was first introduced into the Ontario Legislature, Bill 173, An Act to amend the Mining Act, received Royal Assent on October 28, 2009. Upon introducing Bill 173 for third reading, Minister of Northern Development, Mines and Forestry, Michael Gravelle stated:

“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.”

The Mining Act in Ontario first passed into law in 1873, to govern access to what is considered to be Crown Lands and to begin to develop the natural resources. In 1906, Ontario revised the Mining Act, changing the way access to natural resources occurred and established the free-entry model, which provided priority access to lands and resources for mining and development companies.

The free-entry system applied to all “Crown Lands”, a majority of which are First Nation traditional territories, where prospectors could stake claims to minerals on both public and private lands, without notifying or consulting with the landowners. This included Aboriginal peoples who have land rights as well as the right to be consulted and accommodated. The free-entry model, under the old Mining Act, created controversy as mining companies clashed with the interests of the First Peoples, landowners and the public, prompting the Ontario government under Premier McGuinty to reform the Mining Act.

Section 2 of Bill 173 outlines the purpose of the new Mining Act as “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.”

While it references the duty to consult, it does not contain the Supreme Court jurisprudence of accommodation or the free, prior, informed consent expected by the First Peoples. Instead, provisions under the application for an exploration permit state that the Director of Exploration shall consider, “whether Aboriginal consultation has occurred……..which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”

There are also provisions for withdrawing lands that “meet the prescribed criteria as a site of Aboriginal cultural significance.” This can be done under the authority of the Minister, who can order lands be withdrawn from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown.

A withdrawal order “does not affect pre-existing mineral rights and tenure such as mining claims, mining leases or licenses of occupation.” (The claims in Kitchenuhmaykoosib Inninuwug traditional territory remain. Platinex and Ontario have extended discussions on their on-going litigation to November 6, 2009.)

However, no mining claims may be staked or recorded on any land, “that is located in the Far North, if a community based land use plan has designated the lands for a use inconsistent with mineral exploration and development.”

Minister Gravelle stated that upon royal assent some provisions went into effect immediately, including, “a clause in all leases and lease renewals highlighting the protection of existing aboriginal and treaty rights provided in Section 35 of the Constitution Act” and “the automatic withdrawal of Crown mineral rights under privately held surface rights in southern Ontario.” (Before 1913, the Crown granted lands that included surface and mineral rights but afterwards lands granted may or may not have included mineral rights.)

For the rest of the Act, the Ministry will be developing the regulations and policies, in consultation with stakeholders, before they can come into effect. Minister Gravelle 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 August 11, 2009, there are 250 active mineral exploration projects in northwestern Ontario and approximately 8000 claims made by mining companies grandfathered under Section 14.3 where withdrawal orders do not affect pre-existing mining rights and tenure such as mining claims, mining leases or licenses of occupation.

Also, under Part XIV- Far North, it states: “The validity of any mining claims, mining leases, patents, and licenses of occupation for mining purposes located in the Far North and any related approvals for mineral exploration and development activity shall not be affected by a community based land use plan or any amendment to such a plan that is inconsistent with mining purposes, if the consistent designation was made after the mining claims, mining leases, patents, and licenses of occupation for mining purposes or the related approvals for mineral explorations and development activities were issued.”

In conclusion, it appears that mining will continue to be “strong, vibrant and competitive” throughout Noopemig while the regulations and policies are being developed for the Aboriginal-specific clauses of Bill 173-the “new” Mining Act. It will be up to the First Peoples to decide how and if, they want to provide input into the regulations.