Fewer complaints than expected
One year following the introduction of a requirement for mining exploration plans and permits, the verdict from the Ontario Prospectors Association is one of qualified satisfaction.
“We’ve had a few complaints, but probably not as many as we expected,” said Garry Clarke, the association’s executive director.
“The biggest problem our members have is with the identification of First Nation communities they are supposed to be dealing with. That’s an ongoing issue the industry seems to be running into.”
From April 1, 2013, when plans and permits became mandatory, to April of this year, the Ontario Ministry of Northern Development and Mines reports 199 active plans and 256 permits issued.
“I was optimistic before we implemented the new regulatory requirements,” said Cindy Blancher- Smith,
assistant deputy minister for mines and minerals. “I knew it wasn’t going to be perfect. It rarely is when you introduce something new, but we did extensive consultations before we attempted to change things. We listened to stakeholders.
We listened to First Nations and we struck what I think is a good balance, but there’s always room for improvement.”
The regulations provide a “stable structure” for prospectors and exploration companies interested in working in Ontario, said Blancher-Smith. “With the new regulatory regime, “they know exactly what’s required of them, and we have a good cadre of staff to support them.”
To date, no permit applications have been denied. Nor has the dispute resolution process been tested, said Stephen de Vos, the Ministry’s manager of exploration and development.
Prospectors and exploration companies are required to submit plans for low impact exploration work, and apply for permits for more intensive work using larger, mechanized equipment. The Ministry circulates the plans to First Nations in whose traditional lands the work will take place and asks for feedback within 21 days.
“That provides us with some time to consider the feedback and take appropriate action,” said De Vos. In some cases, the 21 days come and go without a response from the First Nations because they “understand the nature of what some of the (low-impact) activities are and, in some cases, the proponents have followed the best practices that we set out and are engaging the First Nation communities even prior to submitting an exploration plan,” noted De Vos.
“If we don’t hear from them around the 20-day mark, we usually follow up with an email or a phone call just to make sure they are aware of what was sent to them.
“In some cases, they come back with concerns about the planned activities. In two circumstances, we required a permit application. That allowed us additional time for consultation to … satisfy the concerns that were raised. In other cases, proponents have voluntarily adjusted their plans to accommodate First Nation concerns.”
Proponents are required to document their conversations with First Nations and submit an Aboriginal consultation report, making note of any outcomes and commitments. For permit applications, First Nations are asked to provide any feedback within 30 days. That gives the Ministry time to make a permit decision within the 50-day target set forth in the regulations. However, more complex permit applications can – and are – put on temporary hold.
According to De Vos, between 70 and 80 per cent of permits are approved within 50 days. In some cases, the proponents themselves ask for a permit to be put on temporary hold “because they recognize it’s to their benefit to take some additional time to develop the relationship and work out the issues rather than forcing it to a permit decision.”
The Ministry has offered to make the dispute resolution process available, but in every case, the proponents have “made the decision to go back and continue discussions on their own,” said De Vos. The downturn in exploration activity and the lower than expected number of plans and permit applications has helped to ease the transition to the new regulatory framework, said Clark.
“It wouldn’t have been very good if it was two years ago because we would have deluged the Ministry with applications.”
Are the First Nations being reasonable?
“I’d say it’s 50:50,” replied Clark. “Some of the agreements that are showing up that the First Nations want to sign are a little onerous.”
Clark pointed to the practices of the Wabun Tribal Council, which represents the Beaverhouse, Brunswick House, Chapleau Ojibwe, Fying Post, Matachewan and Mattagami First Nation communities in northeastern Ontario as a model that appears to be working.
“They have more than 30 permits that are tied to agreements that are pretty well cookie cutter,” said Clark. “They use a standardized template. There are still some industry people who don’t like it, but if we had something across the province that was standard, (exploration companies) would know before they started where they were headed.”
Agreements typically contain the usual undertakings to offer employment and business opportunities to First Nation communities, and include a provision for funding – usually expressed as a percentage of a company’s exploration budget – to offset impacts on traditional rights and consultation expenses.
The funding is usually in the range of one, two or three per cent but, in at least one case, that of Northern Superior Resources, Sachigo Lake First Nation demanded compensation equal to 24 per cent of the company’s exploration budget.
“Most First Nations want economic development,” said Clark. “The problem is getting to a point where it’s not tied to an agreement that breaks the bank of the company that’s planning to do the work.
“When a project gets to the point of having a deposit and there’s an impact benefit agreement, that’s where the funds should all flow from.”
The Ministry has staffed up to help exploration companies and First Nations comply with the new regulatory regime.
“We have a lot of excellent staff to deal with exploration plan and permits,” said De Vos. “We have offices in Sudbury, Timmins and Thunder Bay with regional supervisors. Reporting to them are mineral exploration development consultants – six in Thunder Bay, five in Timmins and three in Sudbury. They provide advice to the proponents and First Nations. They shepherd applications through the regulatory process and provide information sessions to First Nations.
“When we introduced the regulations, we launched a program to provide education, information and enhanced capacity for all interested communities. We further recognized that there are communities in Northern Ontario that are more impacted by mineral exploration than others. That’s why we made an additional investment to support those communities by providing them financial support to hire or augment existing capacity within the community or the tribal council level to engage in the planning and permitting process.
“We’ve provided funding for 12 mineral development advisors across the North, representing 49 Aboriginal communities.”
While the rollout of the planning and permitting process has been reasonably smooth, the Ministry is “constantly evaluating it and making minor adjustments to improve it and make it more effective,” said De Vos. That includes changes to the application forms, the degree of detail required and how the information is presented.
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