New Mining Act Regulations for Aboriginal Consultation Proposed

Recently, the Ministry of Northern Development and Mines (the “Ministry”) posted proposed regulations pursuant to section 176 of the Mining Act on Ontario’s Environmental Registry (the “EBR”). The proposed regulations attempt to clarify Aboriginal Consultation requirements for early exploration activities with a graduated system of consultation which will reflect the type of activity that is taking place on the land. The Proposals have been posted for a 50 day public review and comment period which will continue until May 01, 2012.

The proposed regulations are:

  • An Amendment to the General Regulation (O. Reg 45/11) (the “General Regulation”) (EBR 011-5733)
  • An Amendment to the Assessment Regulation (O. Reg 6/96) (the “Assessment Regulation”) (EBR 011-5786)
  • An Amendment to Mine Development and Closure under Part VII of the Mining Act (O. Reg 240/00) (the “Mine Closure Regulation”) (EBR 011-5787)
  • A new regulation titled Exploration Plans and Permits (the “Exploration Regulation”) (EBR 011-5733)

The Exploration Regulation

The Exploration Regulation proposes a graduated system of Aboriginal consultation requirements for early exploration mining activities. The graduated system is based on two classes of early exploration activities requirements: Exploration Plans and Exploration Permits.

Both classes of requirements require the exponent of the exploration activities to provide information about all Aboriginal consultation that has taken place or is planned to take place. For Exploration Plans this would be noted in a Consultation Report and this would be contained in the Application for an Exploration Permit.

Exploration Plans involve lower impact activities and can be approved within 30 days of being submitted to the Ministry.

An Exploration Permit involves low to moderate impact activities and can be approved within 31-50 days of filing the application but not before. Exploration Permits would be posted on the EBR and have a provision for alternative dispute resolution (“ADR”) provision between Aboriginal group and the exponent.

The Mine Closure Regulation

The Mine Closure Regulation proposes that Aboriginal consultation is to be carried out before a certified Closure Plan is submitted. It also includes a provision for dispute resolution between a proponent of a closure plan and an Aboriginal community where there are concerns about impacts on Aboriginal or Treaty rights.

The General Regulation

The General Regulation proposes to add criteria for Sites of Aboriginal Cultural Significance which can be withdrawn from staking. The proposed criteria are: association with an Aboriginal community for social, cultural, ceremonial or sacred reasons, a fixed location on a map and documentation and support by the community

Assessment Regulation

The proposed Assessment Regulation would make Aboriginal consultation costs eligible for assessment work credits but only when actual geoscience assessment work is submitted.