I received an email from “Northshorewoman” regarding my blog-entry on the Mining Act receiving Royal Assent. The email reads as follows:

“I can see that there will be a lot of problems ahead such as, although it is definitely an improvement from the previous Act that allowed free access to lands for any Jack, Joe, Jill or corporation, the language seems such that much damage can still occur on traditional lands. Problematic to me is that claims prior to this amendment are outside of its legal arm. Also problematic for me, is that the language is such that while consultation of First Nations communities is required, their conclusions are not definitive or binding on decisions made. Is this true? Does the new Act still make First Nations voices a player in the power relations but not a player with veto?”

Upon introducing the Bill 173, Minister of Northern Development, Mines and Forestry Michael Gravelle stated: “The point, … is that this comprehensive consultation, and the discussion it engendered, has produced a balanced piece of legislation.”

“The initial process of engaging with the aboriginal communities and stakeholders about the province’s minerals industry prepared our government well for the extensive and comprehensive consultation we undertook to prepare for amending the Mining Act.”

The Act states that “a dispute resolution process is established for disputes relating to Aboriginal consultation occurring under the Act, and it calls 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.”

The Supreme Court of Canada (SCC) in its various rulings stated that the duty to consult and accommodate becomes engaged, “when the Crown has some knowledge of the existence of an aboriginal right to title and contemplates conduct that might adversely affect it.” It has also said that the duty to consult arises, “if the conduct might adversely affect aboriginal rights to land covered under treaty.” Along with these triggers, the SCC has referenced “good faith negotiations, upholding the honour of the Crown, meaningful consultation and reconciliation,” amongst other noble terms.

In the Mikisew Cree decision of 2005, the Supreme Court said, “it is not consistent with the honour of the Crown, in its capacity as fiduciary, for it to fail to consult with a First Nation prior to making a decision that infringes on constitutionally protected rights.” In another ruling, the court has said that several SCC cases have already stated that the honour of the Crown may require consultation prior to making a decision and “This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.”

Under Bill 173, the “new” Mining Act, consultation may occur once 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.”

A dictionary defines accommodation “as an adjustment or adaptation to suit a special or a different purpose, a convenient arrangement; a settlement or compromise.” To accommodate is defined as to “adapt, harmonize or reconcile.”

So, to your question; are the conclusions of consultations with First Nations definitive (and are they) binding on decisions made?  It appears that the decision lies with the Director of Exploration, who has been selected from amongst the officers and employees of the Ministry, who may consider “any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”  The Director, however, must first decide, “whether Aboriginal consultation has occurred in accordance with any prescribed requirements,” leaving the Ministry to make such determinations.

There is, however, a dispute resolution clause for Aboriginal consultation where 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 Ministers powers dealing with Aboriginal consultation  in the permitting, advanced exploration and the mine production stage in the following manner:

  1. a)Confirm, vary, rescind a Directors decision for a section 78.3 exploration permit.
  2. b)Provide such further direction or support respecting consultation for the advanced exploration and mine production stage.
  3. c)Take any action that he or she considers appropriate in the circumstances.

While the First Peoples can still provide input during the consultative phase under the Mining Act, it is up to the Ministry and its Minister to make the ultimate decisions which answers your second question about a veto.

The Supreme Court of Canada has ruled that, “The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.”

Premier McGuinty’s words of “a new respect and working relationship with First Nations, a true partnership, a greater say to First Nations concerning development projects on their traditional lands, including a share of the benefits from resource projects, continue to resound loud and clear throughout Noopemig.

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