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New rules for First Nation consultation

March 1, 2012
by Norm Tollinsky
In: Exploration with 0 Comments

Posted in late February on the province’s Environmental Registry and detailed in an information update mailed out to 11,000 stakeholders, the regulations introduce “a graduated system of consultation that reflects the type of activity on the land,” said Rob Merwin, director of the Ministry’s Mining Act Secretariat.

Prospectors and exploration companies will still be able to stake claims without notifying First Nations or surface rights owners. They will also be able to access their claims for hand sampling.  However, anything more than that, such as line cutting, will require the prospector or exploration company to submit a plan to the Ministry.

“Plans are a notification process through which a prospector or exploration company fills out a form that tells who, where, when and what they plan to do,” said Merwin. “Plans will be shared with affected First Nations and posted on the Ministry’s web site.”

Once a plan is submitted, there will be a 30-day waiting period before the work can be done. First Nations can respond with objections or concerns, and the plan may be approved with conditions.  However, if the objections are of a more serious nature, the application can be escalated to a permitting process.

Permits will be required for more intensive work using larger, mechanized equipment.

“As part of the permitting process, companies will have to provide more detailed information to us, including information about whom they’ve spoken with in the affected First Nation communities,” said Merwin. “They’ll have to provide evidence of the consultation that has occurred. We expect this process to take a minimum of 31 to 50 days.”

The amendments to Ontario’s Mining Act requiring First Nation consultation were passed in October 2009, and work on the regulations enforcing them have been in progress since December of the same year. Since then, according to Merwin, there have been more than 70 public meetings involving more than 1,000 people and input from representatives of industry associations who sit on the Minister’s Mining Act Advisory Committee.

The public will be able to review and comment on the proposed regulations through April and May, but the intention is to begin implementation in June, and for the regulations to be fully effective by December 1, 2012.

“As of June 1, companies will be able to apply for an exploration plan or permit for work they plan to do in December and into 2013,” said Merwin.

The requirement to submit plans and apply for permits represents a major change for prospectors and exploration companies.

“There will be a little more planning and a little less spontaneity,” said Garry Clark, executive director of the Ontario Prospectors Association. “Right now, if I go out as a prospector and strip off some outcrop and come across an interesting quartz vein with visible gold in it, the next day I can go out with a backhoe and strip off a larger area without telling anybody.” That won’t be possible beginning in December.

If the new plans and permits system works, it will be good for Ontario, but if it doesn’t, there’s a chance that companies will go somewhere else to explore.

“It has some of our members scared. It has me concerned, too,” said Clark. “We’re worried about anything that slows us down.”

Merwin, on the other hand, is optimistic.

“We have taken our time to listen and we have adjusted. The hallmark of this exercise is balance. If we push too far to one side, we’re going to hear it from the other side. We looked at what other jurisdictions are doing across Canada and we believe these regulations keep Ontario in a very competitive position.”

With 300,000 active mining claims and $1 billion in exploration expenditures in 2011, it’s clear that “people are still willing to continue to invest in Ontario,” said Merwin.

Consultations with First Nations prior to the submission of plans and permit applications should expedite the process.

“If I already have an agreement with a First Nation, that may make the permitting process go faster,” said Clark. “If I know there won’t be any concerns from a First Nation, I might even be able to get a letter from them.”

A harmonious relationship between industry and First Nations will require an understanding of the process. To that end, every prospector in Ontario will be required to participate in an online awareness program.

Good will and mutual respect will go a long way toward ensuring a positive outcome, said Merwin.

“We have many examples of industry and First Nations that have been able to forge productive partnerships.”

There have also been some well-publicized examples of conflict and court battles, but they’re the exceptions, said Merwin.

Ministry efforts to educate First Nations about the mining cycle and manage expectations should also help to bring the two sides together, he said.

In the absence of an agreement, the regulations provide for a dispute resolution process overseen by Ministry staff or a third party mediator.

For complete details about the regulations, go to Ontario¹s Environmental Registry website at and search for Mining Act Regulations.

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