Approximately eleven (11) months after Bill 173- the Mining Amendment Act, 2009 received Royal Assent on October 28, 2009, Bill 191-the Far North Act, 2010 went into third (3rd) reading in the Ontario legislature on September 23, 2010, amidst continued opposition from First Nations with the support of the Northern Ontario Chamber of Commerce and other organizations living and operating in the Far North.
Despite the opposition, Minister of Natural Resources, Linda Jeffrey framed the passing of the legislation this way: “Together, we are entering a new era of social prosperity, economic certainty and environmental protection in the Far North.”
The Far North Act – has as one of its objectives: “The protection of areas of cultural value in the Far North and the protection of ecological systems in the Far North by including at least 225,000 square kilometers of the Far North in an interconnected network of protected areas to be designated in community based land use plans (Section 6)”. The Far North is approximately 42% of the land mass in Ontario. The purpose of the Act is to “provide for community-based land use planning in the Far North.”
Under Bill 173- the Mining Amendment Act, 2009, Minister of Northern Development, Mines and Forestry, Michael Gravelle has stated that his ministry will consult on the development of the regulations and policies dealing with Aboriginal consultation throughout the mining sequence, including the criteria and the process for withdrawing sites of aboriginal significance; exploration plans and permits, including terms, conditions and requirements for early exploration; clarifying the existing consultation process for closure plans for advanced exploration and mine development projects; and a dispute resolution process for Aboriginal-related mining issues.
Currently there are consultations for regulatory development in the following eight (8) key areas:
1) Prospectors Awareness Program
2) On-line Staking
3) Exploration Plans and Permits
4) Assessment Work
5) Protection of Sites of Aboriginal Cultural Significance;
6) Aboriginal Consultation
7) Dispute Resolution
8) Private Surface Rights.
It is expected that the different sections of the Act will be proclaimed and come into force as they are developed.
Minister Gravelle has referred to Bill 173 as a “balanced piece of legislation” resulting from “comprehensive consultation,” and says that, “Bill 173 is aimed at bringing our mining legislation into harmony with the values of today’s society while, at the same time, promoting strong, vibrant and competitive minerals industry.”
Under Section 2, it states that the purpose of the new Mining Act is, “to encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult and to minimize the impact of these activities on public health and safety and the environment.”
What does this mean and how does it benefit communities in the Far North?
Below my blog will look at several of the sections in each Act. I highlight sections that may be of interest to people in Noopemig. Further, it is up to each person and community to decide for themselves and weigh the utility of the mechanisms described in each law. I believe each person or community must decide for themselves if they wish to use the mechanisms outlined to achieve their own goals on their lands in Noopemig.
This is what the Mining Act now says about Aboriginal Dispute Resolution and the Withdrawal of lands from staking:
Aboriginal Consultation\Dispute Resolution
The Mining Act says that consultation may occur after a person has submitted an exploration plan, in accordance with any prescribed requirements, “including any Aboriginal consultation that may be prescribed.” This person will have had “applied for and been issued an exploration permit,” from the Director of Exploration, who may be appointed by the Minister from the officers and employees of the Ministry.
This Director shall consider under S. 78.3 (2) (b), “Whether Aboriginal consultation has occurred in accordance with prescribed requirements, which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”
Bill 173 says that “a dispute resolution process is established for disputes relating to Aboriginal consultation occurring under the Act.” The dispute resolution clause for Aboriginal consultation says that “the Minister can designate one or more individuals, or a body, “to hear and consider disputes….relating to consultation with Aboriginal or treaty rights or to the assertion of Aboriginal or treaty rights, including disputes that may occur.”
Once a report and recommendations are made by the designated body to the Minister, the dispute resolution outlines the Minister’s powers dealing with Aboriginal consultation in the permitting, advanced exploration and the mine production stage in the following manner. The Minister may,
- a) confirm, vary or rescind a Director’s decision in respect of an exploration permit issued under 78.3 exploration permit;
- b) provide such further direction or support as he or she considers a appropriate respecting any consultation undertaken for the purposes of advanced exploration and mine production stage; or
- c) take any actions that he or she considers appropriate in the circumstances.
When combined with the provision that says there can be no activities during a dispute section 78.2 (7), Ontario and communities now have more tools available to them so that conflicts can’t be further inflamed or provoked during a dispute. It is also very important for communities to know that under this law, exploration permits can be rescinded. It is no longer a foregone conclusion that all exploration must go forward. This also means we now have more checks and balances on exploration than prior to this law.
Protection of Sites of Aboriginal Cultural Significance (Withdrawal of Lands)
Provisions for withdrawing lands that “meet the prescribed criteria as a site of Aboriginal cultural significance,” can be done under the authority of the Minister, who can order lands be withdrawn from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown.”
Section 35 (1) reads:
The Minister may, by order signed by him or her, withdraw from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown, and the lands, mining or surface rights shall remain withdrawn until reopened by the Minister.
Factors to consider:
(2) In making an order under subsection (1) the Minister may consider any factors that he or she considers appropriate including,
(a) Whether the lands, mining rights or surface rights are required for developing or operating public highways, renewable energy projects or power transmission lines or for another use that would benefit the public, whether the order would be consistent with any prescribed land use designation that may be made with respect to the Far North and whether the lands meet the prescribed criteria as a site of Aboriginal cultural significance; and
(b) any other factor that may be prescribed.
Pre-existing rights and tenure
(3) A withdrawal order issued under subsection (1) does not affect pre-existing mining rights and tenure such as mining claims, mining leases or licenses of occupation.
No mining claims may be staked or recorded on any land, “that is located in the Far North, if a community-based land use plan has designated the lands for a use inconsistent with mineral exploration and development.” It will be interesting to see how this will play out for communities in and around the Ring of Fire. The only way for controversial claims to be cancelled is if companies voluntarily let them lapse. It will also be interesting to see how the province defines Aboriginal cultural significance. This seems like an area First Nations should naturally lead.
The Mining Act – Part XIV- Far North says that “The validity of any mining claims,
mining leases, patents, and licenses of occupation for mining purposes located in the
Far North and any related approvals for mineral exploration and development activity
shall not be affected by a community based land use plan or any amendment to such a
plan that is inconsistent with mining purposes, if the consistent designation was made
after the mining claims, mining leases, patents, and licenses of occupation for mining
purposes or the related approvals for mineral explorations and development activities
The active mineral exploration projects in Northwestern Ontario and the 8000+ claims made by the mineral exploration companies are grandfathered as a result and will not be impacted by withdrawal orders or community-based land use plans. This is why it is critically important that if communities know where sensitive lands are now and where they wouldn’t want mining or exploration that they withdraw lands from staking. This is one tool they can use to secure those lands. It hasn’t been used a lot in the last few years in the Far North but it is a tool communities could consider to secure their lands now.
This brings us to Bill 191- Far North Act, which received royal assent on October 25, 2010.
Bill 191-the Far North Act, 2010
The purpose of the Far North Act is “to provide for community based land use planning in the Far North that directly involves First Nations in a “joint-planning process” with Ontario, that “supports the environmental, social, and economic objectives for land use planning for the peoples of Ontario set out in Section 6; and (c) is done in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights of section 35 of the Constitution Act, 1982, including the duty to consult.”
A “community-based land use plan” means a land-use plan that has been prepared under Section nine (9) and approved by that section;
Section 5 states the following objectives:
1) A significant role for First Nations in the planning.
2) The protection of areas of cultural value in the Far North and the protection of ecological systems in the Far North by including at least 225,000 square kilometers of the Far North in an interconnected network of protected areas designated in community based land use plans.
3) The maintenance of biological diversity, ecological processes and ecological functions, including the storage and sequestration of carbon in the Far North.
4) Enabling sustainable economic development that benefits the First Nations.
Section 9 (1) states:
If one or more First Nations having one or more reserves in the Far North indicate to the Minister their interest in initiating the planning process, the Minister shall work with them to prepare terms of reference to guide the designation of an area in the Far North as a planning area and the preparation of a land use plan for the purpose of this section.”
The community-based land use planning is to be led by the First Nations working with Ontario through their expression of interest to the Minister to initiate the planning process. Once that interest has been expressed by the First Nations, the Minister will work with them in a joint planning process under a joint-planning team, with equal representation of First Nations and Province to advise on land-use planning, who will develop the terms of reference that will address shared-goals and interests through a consensus-based, cross-cultural dialogue.
Bill 191 provides First Nations “through community-based land-use planning an opportunity to decide which lands in the Far North will be protected and which lands will be open for sustainable development.”
A “protected area” means an area of land that is designated as such by a land-use plan under clause 9 (9) (c) if the plan is approved as a community-based land use plan.
9 (9) (c) states: A land use plan prepared under subsection 6 shall,
(c) designate one or more areas in the planning area as protected areas;
The plan requires joint-approval from the Minister and the First Nation and it is the “first time in Ontario’s history that there is a requirement under law for First Nations approval of a land-use plan.”
Clause 9 (14) (a) (b) says – A land use plan under subsection 6 has no effect until,
(a) the Minister, by order, approves the parts of the plan that subsection (9) requires be included in the plan; and
(b) the council of each of the First Nations mentioned in subsection (6) passes a resolution approving a plan.
Section 6 reads:
First Nations may contribute their traditional knowledge and perspective on protection and conservation for the purposes of land use planning under this Act.
The Far North Act, 2010 “provides for orderly development in the Far North,” where “most major developments would require that a community-based land use plan be in place, with some exceptions.” Bill 191 also provides “provisional protection prior to a community-based land-use plan being in based on criteria to be prescribed by regulation.”
In many parts of Noopemig, such as in the Ring of Fire, claims have been staked already without land-use plans being in place. These claims will have been grandfathered and would not be impacted by the community-based land use planning process. The provisional protection mechanisms outlined in the Far North could provide an additional mechanism for First Nations (on lands without mineral tenure) looking to use provincial laws to protect their lands now.
Another government initiative is the proposed Northern Growth Plan which will strengthen the northern economy. One of the key actions identified in the 25 year plan is
“building a new relationship with Aboriginal People to increase participation in the future economic growth of Northern Ontario and achieve better health status for Aboriginal communities.”
The Far North Act and the Northern Growth Plan (under the Places to Grow Act, 2005) would work together and if there is a conflict, the Far North Land Use Strategy and the Community-Based Land Use Plans would prevail.
There is also a provision in the Far North Act that would enable the creation of a joint body to oversee implementation of the whole land use planning initiative. The functions of this joint body would include: advising on allocation of funding to support First Nations working with Ontario on land use planning, and appropriate dispute resolution processes for land use planning matters. These are important matters and given the level of frustration among First Nations for the current way funds are being handed out, this may just be a better, more transparent process if communities wish it to be implemented. It is modeled on initiatives from other parts of Canada that have worked in cooperation with First Nations such as in the Northwest Territories and Yukon.
While not perfect, these are some of the tools available to communities if they wish to take advantage of them to achieve their own goals. The decision is up to them.
As the snow flies and blankets Noopemig, the sacred living lands continue their endless seasonal cycle, seemingly oblivious to these new efforts to provide a balance that only it can provide….