New Mining Act Regulations for Aboriginal Consultation Proposed
Davis LLP Aboriginal & First Nations Bulletin
March 15, 2012
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:
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 involve lower impact activities. The following activities would be subject to an Exploration Plan:
An Exploration Plan 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 submission to the Ministry but not before. The following activities would require an Exploration Permit:
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:
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.
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.