All Eyes On Ontario Mining Act Reform
Ontario is Canada’s leading mining jurisdiction and is the source of 30% of the total value of Canada’s metal production. The province also has a longer and more continuous history of mining, and one of the more developed mining-focused bureaucracies, than most other parts of the country. With Canada’s international stature as a giant in the mining world, what happens with mining in Ontario is important, not just provincially but also nationally and internationally. The Ontario Government’s announcement that it intends to overhaul the legislation that governs the early and often most controversial phases of mining mean the eyes of the world are now on Ontario. MiningWatch staff are fully engaged in the reform process, collaborating with other organisations to provide concrete alternatives for new legislation.
The origins of the Ontario Mining Act go back to the 19th century, but a substantially new act was last created in 1906. Since then some changes have been implemented, but the basic process of staking mineral claims and acquiring a mining lease have remained the same. One of the most problematic aspects of the old legislation is the “free entry” system that allows prospectors to access public and some private land (where mineral rights are “severed” from surface rights), stake a claim, and acquire a mineral lease without consideration for other interests and values associated with the land. (For more on the free entry system please visit our web site.)
The Ontario Ministry of Northern Development and Mines (a.k.a. MNDM) had been examining options for updating the Mining Act for several years, releasing a Mineral Development Strategy in 2007. For many concerned about how prospecting and permitting are done, the strategy did not go nearly far enough, and its recommendations were marinating in the bureaucracy when two high profile mining conflicts broke out in opposite ends of the province. While these two conflicts have raised the profile of the problems inherent in the current system, it’s important to note that First Nations leaders have warned that the problems are widespread, with many other current and potential conflicts occurring throughout the province.
Platinex Inc., a junior exploration company, acquired mineral claims within the traditional territory and unsettled land claim area of Kitchenuhmaykoosib Inninuwug (KI) First Nation in 1999. KI is a fly-in community in the remote northwest part of the province, some 600 kilometres north of Thunder Bay. For a time Platinex was in discussion with KI about its plans, but the company proceeded with its activities before reaching an agreement. In 2001 KI issued a moratorium on further activity until a satisfactory agreement was reached. In 2006 the conflict escalated, with members of KI actively protesting and blocking Platinex from their territory. More conflict and court proceedings ensued. In October 2007, frustrated by the costs and time being taken up in court, KI withdrew its participation in legal proceedings, while the court issued an injunction prohibiting KI from interfering in Platinex’s activities. Firm in their resolve, KI issued a statement saying that they would not allow Platinex back on their land, this led to contempt charges and eventual jail time for Chief Donny Morris and five councillors, soon known as the KI6.
As events were unfolding in the far north, at the other end of the province, in an area of cottages, woodlots, and farms just 90 km north of Kingston, Frontenac Ventures Inc. began staking crown and private land with the hopes of finding and claiming uranium deposits. Over the winter of 2006 and 2007 a coalition of First Nations and local “settlers” formed, to educate themselves about how the Mining Act works and about the risks they were facing from exploration and exploitation of uranium. In the summer of 2007 a number of demonstrations against the staking and proposed exploration were held, including occupation of Frontenac’s base of operations at Robertsville. Legal challenges followed, including a $77-million lawsuit against the Ardoch Algonquin and Shabot Obadjiwan First Nations. An injunction to not interfere with Frontenac’s operations was granted by the courts, and was then broken by First Nation and settler activists. For peacefully breaking the injunction, Bob Lovelace, former Chief of the Ardoch was sentenced to 6 months in jail and a $25,000 fine, Co-chief Paula Sherman was given a $15,000 fine and the Ardoch were collectively given another $10,000 fine.
An appeal of the sentences in both the KI and Ardoch legal cases was heard in May; all seven of those in jail were released, and the fines against the Ardoch were revoked. The appeal decision cited problems with the Mining Act and the weak role of the province in structuring constructive consultation as root causes of the conflict.
The jailing of seven First Nation leaders for peacefully asserting their constitutional rights to consultation and accommodation, and the anger and frustration of private land owners affected by claim staking, catapulted mining reform onto front pages of the papers and onto the priority list for the provincial government. In July, Premier McGuinty announced plans to “modernize” the way mining is conducted in the province. He committed to finding a balance to ensure that “the way mining companies stake and explore their claims be more respectful of private land owners and Aboriginal communities.”
In August, the province laid out a framework for consultation on the Mining Act, including its own determination of the key issues. A discussion paper, “Modernizing Ontario’s Mining Act: Finding A Balance”, was released, and consultation sessions in Timmins, Thunder Bay, Sudbury, Toronto and Kingston were announced. The process was controversial from the outset. The discussion paper was released the same day as the Timmins consultations, making it impossible for participants to comment on it. Another point of contention was that the issues as identified by MNDM did not include uranium exploration. By the last session in Toronto, Ministry representatives had certainly got the message that many Ontarians do want to see greater regulation of exploration for uranium. When concerns about the process were raised by participants at the consultations sessions they were encouraged to submit written comments.
Concerns about the speed of the consultations and lack of time for First Nations to fully engage their communities in understanding and participating resulted in an extension of the timeline from October 15 to January 15, 2009. Though no additional consultations were planned for non-First Nation groups, additional written submissions from any interested individual or organization are also being accepted until the January deadline.
Prior to the announcement of the consultation process, MiningWatch Canada had already been working with a number of other organisations to develop a comprehensive proposal for reform of the Mining Act. Initiated through the Ontario Mining Action Network, a working group facilitated by MiningWatch identified what a revised mining Act should look like. Ecojustice and the Canadian Institute of Environmental Law and Policy (CIELAP) then took the ideas, made the appropriate comparisons with other mining jurisdictions, and developed precise wording for a Mining Modernization Act. This paper was submitted to the government, and members of the working group referenced the report in their own submissions. We have posted MiningWatch’s submission and the CIELAP/Ecojustice paper as well as a number of other submissions on our web site under "Modernizing Mining in Ontario".
MiningWatch’s recommendations include:
- Applying provincial environmental assessment requirements to mining.
- A permitting system for each phase of mining.
- Consent of First Nations prior to granting permits.
- Recognising First Nations’ authority to withdraw lands from claim staking, and giving municipalities similar authority.
- Requiring consent by surface rights holders for mining activities to occur on lands with separate mineral and surface titles; and an improved system of mediating conflicts and compensation where conflicts between surface rights holders and mineral rights holders occur.
- Increasing funds available for rehabilitating abandoned mine sites and improvements in legislation meant to prevent future abandonment of mine sites.
- Improved capacity for monitoring and enforcement through collection of revenues associated with a permitting system.
Please see "Modernizing Mining in Ontario". for our full submission.
We anticipate a fairly quick response from government once consultations end on January 15. It’s difficult to say how far the province will go in reforming the Act. Industry is pressing for minor alterations rather than the comprehensive reforms that MiningWatch, environmental organisations, and First Nations are calling for.
However, a recent announcement about an agreement reached between the Province, Frontenac Ventures, two Algonquin communities and the Algonquins of Ontario is not a promising sign of the province’s intentions for how conflicts could be resolved in a modernized mining industry. The agreement would allow Frontenac to pursue a modified drilling program despite continued objections by the Ardoch Algonquin, local residents, and downstream municipalities. In a government press release the agreement was touted as “building stronger relationships in Eastern Ontario.” The process, which ignored one First Nation and large number of legitimate stakeholders, has not resolved the conflict. Nor does it reflect a modern approach to mining, rather it reflects an old fashioned approach that in the words of the Ardoch Algonquins “represents the colonial relationship that the Crown has had with Aboriginal people for the last century and a half in which treaties and land sales follow an extended period of intimidation, denial of responsibility, divide and conquer, and outright illegal actions.”