On October 28, 2009, Bill 173, An Act to amend the Ontario Mining Act, received Royal Assent. While portions of the bill have been proclaimed into force, those provisions which will have the most significant impact on mining in Ontario have not yet been proclaimed into force because much of the critical detail will be included in the regulations, which are expected to be developed during 2010.

Significant changes to the existing Mining Act will include:

  • Aboriginal Consultation. Bill 173 focuses heavily on the rights of Aboriginal communities, restating the purpose of the Mining Act to include a statement recognizing and affirming existing Aboriginal and treaty rights. The bill will establish a graduated regulatory approach for exploration, which will require notification of and consultation with Aboriginal communities reflecting the impact of the proposed mining activities. Lower impact activities will require the filing of exploration plans, while higher impact activities will require exploration permits. The bill will also establish a resolution process for disputes relating to the Aboriginal consultation required under the Mining Act.
  • Staking Claims. Bill 173 divides Ontario into “North” and “South” and addresses conflicts where owners of private surface rights do not hold mining rights on their lands. In Southern Ontario, for lands for which surface rights are privately owned and for which mining rights belong to the Crown, the mining rights will be deemed to be withdrawn from prospecting, staking, sale and lease. This provision came into force on October 28, 2009. In Northern Ontario, in the case where surface rights are privately owned and mining rights belong to the Crown, surface rights owners will be able to apply to the Minister of Northern Development and Mines for an order to withdraw the mining rights belonging to the Crown from prospecting, staking, sale and lease. In both cases, pre-existing mining rights will be unaffected.
  • Exploration. Bill 173 will require that, before any new exploration activities are conducted, an exploration plan must be submitted to the Minister of Northern Development and Mines or an exploration permit be obtained. While specific requirements will ultimately be set out in the regulations, it is apparent that consultation with affected Aboriginal communities will be required before any exploration activities are conducted, although the scope of such required consultation is not yet clear.
  • New Mines. Bill 173 prohibits new mine openings in Ontario’s Far North until there is an approved community-based land-use plan (CBLUP) in place.

Bill 191, An Act with respect to land use planning and protection in the Far North, was introduced in the Ontario legislature on June 3, 2009. The bill introduces the formal land-use planning process in the Far North which Bill 173 contemplates Bill 191 will require First Nations and the Ontario government to designate planning areas in the Far North and to jointly prepare a CBLUP for those areas.

The bill prohibits a number of activities on any public lands in the Far North where a CBLUP is not in place, including opening a mine and engaging in oil and gas exploration or production. Since no CBLUPs are currently in place, the effect of the bill will be to place a moratorium on mining and exploration and development activities on public lands in the Far North for an indefinite period of time.

The bill’s land-use strategy would also see the designation of at least 225,000 km2 of the Far North as “protected areas”, with significant limitations on development and industry in those areas. In protected areas where a CBLUP is in place, the following activities will be permanently prohibited:

  • prospecting, mining claim staking or mineral exploration;
  • mine openings; and
  • oil and gas exploration and development.

Effectively, 225,000 km2 of public land in the Far North will be made permanently unavailable to mining and to oil and gas development and exploration while such activities in the remainder of the Far North public lands will only be permitted if there is a CBLUP in place and the CBLUP permits such activities.