New Mining Act Regulations for Aboriginal Consultation Proposed

Davis LLP Aboriginal & First Nations Bulletin


Recently, the Ministry of Northern Development and Mines (the “Ministry”) posted proposed regulations pursuant to section 176 of the Mining Act 1(the “Act”) on Ontario’s Environmental Registry (the “EBR”). In 2009, substantive amendments were made to the Act. The amendments to the Act contemplated regulations in several different areas relating to the regulation of Mining in Ontario. The recently proposed regulations are the second wave of regulations; the first wave became effective in 2010.2

The proposed regulations attempt to clarify Aboriginal Consultation requirements for early exploration activities with graduated consultation requirements to 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 1, 2012.

The proposed regulations are:

  • An Amendment to the General Regulation (O. Reg 45/11)3 (the “General Regulation”)
  • An Amendment to the Assessment Regulation (O. Reg 6/96)4 (the “Assessment Regulation”)
  • An Amendment to Mine Development and Closure under Part VII of the Mining Act (O. Reg 240/00)5 (the “Mine Closure Regulation”)
  • A new regulation titled Exploration Plans and Permits6 (the “Exploration Regulation”)

Exploration Plans and Permits

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

The Ministry will give direction, if contacted, about which Aboriginal communities are to be consulted.

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 in the case of an Exploration Permit.

Exploration Plans

Exploration Plans involve lower impact activities. The following activities would be subject to an Exploration Plan:

  • a Geophysical survey requiring a power generator;
  • Cutting of survey grid lines up to 1.5 m wide;
  • Drilling using equipment weighing up to 150 kg;
  • Mechanized surface and overburden stripping for a combined surface area of up to 100 m2 within a 200 metre radius; and
  • Test pitting and trenching of rock between 1 to 3 m3 and a maximum depth of 15 cm.

An Exploration Plan can be approved within 30 days of being submitted to the Ministry.

Exploration Permits

An Exploration Permit involves low to moderate impact activities and can be approved within 31-50 days of submission to the Ministry but not before. The following activities would require an Exploration Permit:

  • Cutting of survey grid lines greater than 1.5 m wide;
  • Drilling using equipment weighing greater than 150 kg;
  • Mechanized surface and overburden stripping for a combined surface area greater than 100 m2 within a 200 metre radius;

All Exploration Permits would be posted on the EBR and have a provision for alternative dispute resolution (“ADR”) between Aboriginal groups and the exponent. This provision would be triggered when there are outstanding concerns related to consultation or on impact to Aboriginal Rights or treaty rights. Any report or recommendations made by a mediator/facilitator would become part of the project’s record of Aboriginal consultation kept by the Ministry.

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 and any report or recommendation would become part of the record of Aboriginal consultation kept by the Ministry.

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:

  • A strong association with an Aboriginal community for social, cultural, ceremonial or sacred reasons or because of its traditional use by that community, according to Aboriginal traditions, observances, customs or beliefs;
  • The Site has a fixed location that can be delineated on a map; and
  • The Site is documented and supported by the community as having cultural significance to them.

If an area is designated as a Site of Aboriginal Cultural Significance it would prevent the staking of a mining claim and mineral exploration on the site for a minimum of 4 hectares encompassing the site with a maximum size of 24 hectares.

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. The Aboriginal consultation costs would be a portion of the cost of work submitted for assessment credit. Once accepted, the credits for Aboriginal consultation can be ‘banked’ and distributed and are not discounted over time.

 

Please consult your Davis lawyer for more information about how these proposed changes will affect you and your associated legal options and / or obligations.


1R.S.O. 1990, c. M.14
2The first wave of regulations under the Mining Act were: Claim Staking & Recording (O. Reg. 47/11) and provisions for Notification of Staking on Private Lands, provision for withdrawal from taking of crown mining rights under privately owned surface right in Northern Ontario and Exemptions from the Mining land tax made under the General Regulation (O. Reg 45/11)
3EBR 011-5733
4EBR 011-5786
5EBR 011-5787
6EBR 011-5733
 

 

 

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David Crocker
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