On April 30, 2009 Ontario introduced Bill 173, the Mining Amendment Act, 2009.1 Bill 173 is designed to modernize the existing Mining Act ("Act").2 The new amended purpose of the 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…".3 Bill 173 proposes a number of substantial revisions to the existing Act4 in support of this purpose.
Bill 173 adds the defined term "Far North"5 to subsection 1(1) of the Act to describe an area within which specific restrictions apply. In particular, Part XIV6 of Bill 173 states that no new mine opening can occur in the Far North if there is no community based land use plan for that particular area, or if an existing plan is inconsistent with the area’s designated land use. However, Bill 173 allows for the government to override these requirements if a project is found to be in "the social and economic interests of Ontario".7
Additionally, section 40 (proposed new subsection 78.1(1)) of Bill 173 sets out that a key requirement of an exploration plan is to ensure that appropriate aboriginal consultation has occurred.8 Pursuant to this section, the Director of Exploration will consider in deciding whether to issue an exploration permit if "original consultation has occurred in accordance with any prescribed requirements, which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration".9
Section 14 (proposed new subsection 35(2)(a)) of Bill 173 allows for the withdrawal of Aboriginal cultural sites from mineral claim staking. Specifically, the Minister may withdraw lands, mining rights or surface rights with regard to whether they are found to be consistent with any Far North prescribed land use designation or whether the lands meet the prescribed criteria as a site of Aboriginal cultural significance.10
Section 46 (proposed new section 86.1) provides that every lease issued under the Act must include a provision stating that the lessee’s rights under the lease will be subject to the protection provided for existing Aboriginal or treaty rights in section 35 of the Constitution Act, 1982 ("Section 35").11 The proposed section 86.1 reads:
"86.1 Every lease issued under this Act, including leases issued or renewed before the enactment of this section, shall include or be deemed to include the following provision:
The Lessee’s rights under this lease are subject to the protection provided for existing Aboriginal or treaty rights in section 35 of the Constitution Act, 1982 and the Lessee shall conduct itself on the demised premises in a manner consistent with the protection provided to any such rights."
Finally, in section 80, Bill 173 introduces a formal dispute resolution process for Aboriginal-related issues. Under the amendment, it would be possible for the Minister to appoint one or more individuals or a body to hear and consider disputes and make recommendations relating to consultation with Aboriginal communities and existing or asserted Aboriginal or treaty rights.12
Bill 173 introduces extensive amendments to the Act. Ideally, the amendments could provide greater clarity regarding mineral rights for exploration companies, mining companies and Aboriginal communities. Presumably the government’s implementation of these amendments is focused on practical measures to promote increased certainty with respect to resource development in Ontario for all parties. For example, the requirement of exploration plans that include an Aboriginal component relating to consultation can be helpful for the parties, but it will be essential to ensure, among other things, that the requirements for such plans generally and in respect of Aboriginal consultation are proportionate to the nature of the exploration being proposed.
Currently missing from Bill 173 are a number of essential details including what type of exploration activity requires an "exploration permit", a definition of "Far North", the precise components of a "community based land use plan", and what sites qualify to be of "Aboriginal cultural significance" for the purpose of the Act.
The proposed section 86.1 seems to imply that private third parties will be expected to be held accountable in terms of potential infringements or interference with Aboriginal or treaty rights under Section 35. The notion of a private party being subject to Section 35 and Aboriginal and treaty rights is, on its face, a novel concept and one that requires careful consideration in respect of its potential implications to exploration and mining companies and the concomitant expectations that may arise. One possible interpretation is that section 86.1 opens third-parties up to claims of breaching Section 35 (to date the courts have focused on Section 35 applying to the Crown and governments) and a range of possible other remedies against third parties by Aboriginal peoples in relation thereto.
For further information regarding Bill 173, the draft legislation can be accessed at: http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session1/b173.pdf