Soon-to-be-released Mining Act regulations will show
the Government of Ontario taking seriously its duty to consult with
Aboriginal peoples and, more practically, taking seriously the
delay in natural resource development which can result from a
failure in consultation. These regulations will introduce a
mechanism to assist with resolution of disputes between Aboriginal
communities and mining sector participants concerning the
Crown's duty to consult. This mechanism is important because
the duty to consult Aboriginal peoples is a constitutional duty and
so can override otherwise valid regulatory approvals.
The new regulations are part of Phase II of the Mining
Act modernization project. Phase II regulations will also
include a new system of exploration plans and permits which
categorizes exploration activities according to their potential
impact.
The dispute resolution mechanism will take its basic structure
from the Mining Act. Section 170.1 (not yet in force)
permits the Minister to designate one or more individuals, or a
body, to hear and consider disputes arising under the Mining
Act which relate to the duty to consult Aboriginal peoples.
Such individuals or body will then report to the Minister and set
out recommendations.
During its development of the regulations the Ontario Ministry
of Northern Development, Mines and Forestry proposed two streams to
the dispute resolution mechanism: 1) a hearing-like procedure for
disputes arising in relation to a permit decision, and; 2) a
mediationbased process for disputes arising from advanced
exploration or pre-production mine activities. Whatever proposal
the regulations adopt, they should include provisions concerning:
timelines; how any submissions are made, and; the content of any
factual record, including whether affidavit evidence is available.
Other important matters such as counsel funding for often
under-resourced Aboriginal communities may be left to the
parties.
The harsh economic conditions facing most Northern Ontario
Aboriginal communities and the mineral wealth lying under their
traditional lands suggest that the dispute resolution mechanism
will be much used.
That is not a bad thing. The danger in failing to consult
adequately is evident in two recent judgments. In Wahgoshig
First Nation v. Ontario, 2011 ONSC 7708 (January 3, 2012), the
Ontario Superior Court of Justice enjoined Solid Gold Resources
Corp. from further exploratory activity pending additional
consultation. Further, in Taseko Mines Limited v.
Phillips, 2011 BCSC 1675 (December 2, 2011), the B.C. Supreme
Court enjoined Taseko from undertaking exploratory work and
clearing timber – activities otherwise permitted by
Taseko's permits.
In addition, use of the dispute resolution mechanism may help
industry participants demonstrate to investors that they have
addressed any environmental, social and governance (ESG) concerns.
Such concerns, including observance of the principle of free, prior
and informed consent (FPIC) are receiving increasing attention in
the natural resources sector.
The new Mining Act dispute resolution mechanism will
provide an additional tool to help the mining industry, and for
many will be unavoidable. However, it will not change the best
advice for industry participants: consult early and often and, most
importantly, build a relationship.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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