Aboriginals want the option to say “no” to prospecting

Although the Ontario Government’s proposed new mining act has been received in a favourable light by many in the industry there is still a great distance between what some stakeholders want and what they will get.

Michael Gravelle, Minister of Northern Development and Mines, introduced a bill to the Ontario legislature on April 30 to provide a clearer set of rules for mining companies, aboriginals, private land owners and the environment.

The 135-year-old act will be revised to recognize aboriginal and treaty rights and include a system for consultation throughout the exploration and mining processes, among other things. Many companies already consult with Aboriginals, but there are no guidelines – under the current act, all Crown land, including land subject to aboriginal title claims, is open for staking, exploration and mining without extensive consultation with native groups.

However, Stan Beardy, grand chief of the Nishnawbe Aski Nation (NAN) says prospectors should have to get permission from the appropriate First Nation before any staking, prospecting, exploration or mine development can proceed.

“We’re not against resource development,” Beardy says, pointing out that 65% of NAN First Nations are involved in the mining industry.

“All we are saying is that somebody needs to come and talk to us before going on our lands because we still hunt, trap and fish in the far north of NAN territory,” Beardy explains. “We are concerned about the environment to make sure it’s as much as possible in tact when resource development does take place because we will be here long after the mining is said and done.”

NAN is also asking the government to fund technical resources so it can engage and respond to the project assessment process and for an assurance that land use plans take precedence over mining rights. This could be costly and more time consuming.

But Anne-Marie Flannigan, spokesperson for the MNDM, says aboriginal groups won’t have the power to say “no” to mining companies because the province needs to maintain a competitive environment for the industry.

“Not everybody is going to be happy,” Flannigan says. “What we’ve tried to do is find a balance between all interests and come up with the best system that takes into account everybody’s concerns.”

As a part of creating the new act, aboriginals will be allowed to withdraw significant cultural sites from mineral staking. Staking is currently not allowed on reserve land or burial grounds. Flannigan says First Nations will need to submit a list to the ministry of what they would like omitted. “Then we’ll work with them on withdrawing some of those areas,” she says.

Map staking is being included in the new act, which will rid of the problem of prospectors going on Aboriginal land without permission.

And a dispute resolution process will provide a framework for disagreements over exploration permits, the filing of closure plans or other issues decided during the regulation process.

After a decade-long battle with the Kitchenuhmaykoosib Inninuwug First Nation, Platinex president and CEO James Trusler, welcomes many of the new provisions but is unsure if the new act will have any affect.

Trusler says some of the demands by NAN are impractical. “They are still a long way apart, the government and the NAN leadership,” he says.

Trusler has blamed the provincial government for the troubles his company had in gaining access to mining claims in Northern Ontario, criticizing it for granting his company a permit in the first place. The KI is firmly against any exploration activity on its land and refused access to Platinex despite a Supreme Court order.

“Right now there are laws and people don’t obey the laws and those who are supposed to enforce them don’t’ enforce them,” Trusler says.

The new act will require rehabilitation of exploration sites; currently rehabilitation is only required for advanced projects. As well, fines and penalties would be increased for non-compliance, with jail-time a possibility.

The act will address conflicts where surface rights holders do not hold mineral rights on their lands. In Southern Ontario, mining rights would be withdrawn from mineral staking automatically while in Northern Ontario, owners would be able to apply to the ministry to withdraw the mining rights from staking. Also, certain property owners would be able to apply for an exemption from the mining land tax if the property was patented by the Crown for mining but is not currently being used for mining.

The act would reflect the provincial government’s commitment to protect at least 50% of the Far North from development. Mining claims currently cover about 3% of the region. No new mines would be opened until there is an approved community-based land use plan.

The ministry expects to do a second reading of the bill before the summer break, to be followed by development of regulations with input from the industry and aboriginals over the rest of 2009 with implementation of the programs throughout 2010.

NAN land covers about two-thirds of Ontario’s area totaling 550,000 sq. km and includes 49 aboriginal communities and a population of 45,000 people who traditionally speak either Ojibway, Cree or Ojicree.