Modernizing Ontario’s Mining Act (6 of 6)

Ontario, the largest mineral producer in Canada, is modernizing its Mining Act. These six postings are from a provincial policy document – titled “Modernizing Ontario’s Mining Act – Finding A Balance” produced by the Ministry of Northern Development and Mines.

Elements of the Review

The government believes five critical policy issues must be addressed in this review of Ontario’s Mining Act:

1. Mineral tenure system and security of investment

Potential adjustments to the mineral tenure system, including free entry, to assure investment security while taking into account other interests, including Aboriginal community concerns and private landowners’ issues.

2. Aboriginal rights and interests related to mining development

Potential approaches to consultation and accommodation related to the broad range of mineral sector activities as they affect Aboriginal and treaty rights.

3. Regulatory processes for exploration activities on Crown Land

Potential approaches to regulating exploration activities, including consultation and accommodation with Aboriginal communities.

4. Land use planning in Ontario’s Far North

Potential approaches to the requirement that new mines in the Far North would need community land use plans supported by local First Nations.

5. Private rights and interests relating to mining development (mineral rights/surface rights issues)

Potential approaches to address mineral rights and surface rights issues.

1. Mineral Tenure System and Security of Investment

Lands not open to staking

Lands with privately owned mineral rights are not open for staking. Most lands with Crown-owned mineral rights are open for claim staking. However, some are generally not open to staking. These include lands used for: residential subdivisions, provincial parks, conservation reserves, First Nation reserves, a dwelling, cemetery, public building, garden, orchard or crops that may be damaged, railway lands or Crown town sites. In some cases, staking may be allowed with consent.

Mineral tenure refers to the system of granting and administering exploration and mineral rights.

In Ontario and throughout most of Canada, this system – commonly known as the “free entry” system – sets out the rules for acquiring title to Crown owned minerals. It has four key features:

• The right of prospectors to enter lands containing Crown-owned minerals to undertake mineral exploration
• The right of prospectors to acquire mineral exploration rights by properly staking a claim and having it recorded with the mining recorder
• The exclusive right of the claim holder to carry out further exploration within the area covered by the claim
• The right of the claim holder to obtain a mining lease – the tenure instrument required to undertake mineral production – provided proper procedures and requirements have been complied with.

Free entry does not include an automatic right to mine. To develop a mine, a lease holder must obtain a wide range of provincial and federal permits and approvals.

(For a more detailed discussion of the free entry system, please see The “Free Entry” System – Divergence Among Key Players, an excerpt from State of the Debate – Aboriginal Communities and Non-Renewable Resource Development, by the National Round Table on the Environment and
the Economy).

Mining land tenure issues can engender sharp differences of opinion that are often difficult to reconcile. And yet that is the task – to find solutions that benefit Ontario and balance all of our respective interests.

In the ministry’s ongoing engagement process on consultation approaches, many Aboriginal communities have expressed concern about the way the Mining Act sets the rules for acquiring title to Crown-owned minerals. (This is discussed more fully in Element 2 – Aboriginal Rights and Interests Related to Mining Development.)

Surface rights holders, particularly those who own vacation or retirement properties in rural areas, often find the act’s approach completely at odds with their own enjoyment of their lands. (Surface rights issues are discussed in more detail in Element 5 – Private Rights and Interests.) At the same time, prospectors, mineral exploration companies and mining investors have told us they place a high value on the confidentiality, security and certainty provided by the current system. In fact, mineral tenure is the only asset against which mineral companies can raise financing.

In this consultation, we would like to explore potential adjustments to the current mineral tenure system that would take into account the concerns of Aboriginal communities and private landholders while, at the same time, continuing to assure mineral investment security.

Questions to Consider

• What potential adjustments to the mineral tenure system, including free entry, could we consider to better address the concerns of First Nation and Métis communities?
• How could we ensure that the Mining Act continues to provide investment security?
• How could we reduce potential conflicts between the property owners who hold only surface rights and
prospectors or mining companies who wish to acquire mineral exploration rights on those lands?

2. Aboriginal Rights and Interests Related to Mining Development

Traditional Lands

In Northern Ontario, most land outside reserve land is Crown land. Many First Nations consider these
Crown lands to be part of their traditional lands. Boundaries of these traditional lands are often undefined and may overlap with the traditional lands of other First Nations.

The Ontario government is committed to meeting its duty to consult with Aboriginal people.

As the original inhabitants of this province, Aboriginal people have constitutionally protected rights and recognized interests.

They look for meaningful participation in both land-use decision making and economic development within their traditional lands. They see impacts on their social, traditional and ecological environment from mineral exploration and development. They want meaningful and informed consultation throughout the mining sequence.

Aboriginal communities in Ontario are all different, however. As we have learned through our Aboriginal engagement process, there is no single approach to consultation that can encompass the needs and outlooks of more than 100 First Nation and Métis communities.

For that reason, our consultation framework must be flexible enough to accommodate a variety of different perspectives. At the same time, it must ensure that consultation requirements are met and that investment continues to be encouraged.

In this consultation, we want to look at a range of approaches to consultation with and accommodation of Aboriginal communities related to the broad spectrum of mineral sector activities, including claim staking and exploration.

Questions to Consider

• How could First Nation and Métis communities be engaged, consulted and accommodated in the following stages of the mining sequence:
• Prior to early exploration
• Post claim staking exploration
• Advanced exploration
• Mine development?
• What are the necessary elements of an open and transparent process?

3. Introducing Regulatory Processes for Exploration Activities on Crown Land

Oski- Machiitawin

(formerly the Northern Table)
Ontario and Nishnawbe Aski Nation (NAN) launched Oski- Machiitawin (New Beginning) to work together
on common priorities and address issues identified by northern First Nations. NAN is a political territorial organization representing 49 First Nation communities within Treaty 9 and the Ontario portion of Treaty 5.

During its ongoing Aboriginal Engagement on Consultation, the ministry has engaged more than 50 First Nation communities across the province, met with First Nation and Métis leaders, tribal councils and political territorial organizations, and sought advice through the mining technical table process of Oski-Machiitawin (formerly the Northern Table).

We have consistently heard that Aboriginal communities want meaningful and informed consultation throughout the mining sequence by prospectors, exploration companies and government.

The government’s traditional perspective has been that most early exploration activity is non-intrusive and that it has minimal impact on Aboriginal and treaty rights. Aboriginal communities have told us, however, that such activity may have significant impacts, depending on its timing and location.

The Mining Act generally does not regulate early stage exploration activities once a claim has been staked. To better address consultation with Aboriginal communities, the ministry may consider introducing an enhanced regulatory approach under the Mining Act. (Surface rights are discussed in Element 5 – Private Rights and Interests.)

In this consultation, we want to examine various regulatory approaches for early exploration activities.

Questions to Consider

• How could a regulatory process for exploration activities be designed to ensure t hat the rights of First Nation and Métis communities are respected?
• What elements could be included in a regulatory process for mineral exploration?
• How could a regulatory process work in a fair and timely fashion?

4. Land Use Planning in Ontario’s Far North

On July 14, Premier Dalton McGuinty announced that Ontario was launching a Far North Planning initiative.

The Ontario government will be protecting more than 225,000 square kilometres – or more than half of the Northern Boreal lands – in an interconnected network of conservation lands. Priority will be given to protecting lands with key ecological features such as habitat for endangered species or important carbon sinks. These lands will be permanently protected through the Far North planning process. Activity on these lands will be restricted to tourism and traditional Aboriginal uses.

The government will work with all northern communities and resource industries to create a broad plan for sustainable development. As well, local plans will be developed in agreement with First Nations. Each year, a number of communities will complete these local plans.

The entire process is expected to take 10 to 15 years.

Mineral claim staking and exploration will continue during the Far North Planning period. However, to ensure proper planning and community input, the opening of new mines in the Far North would require community land use plans supported by local Aboriginal communities.

In this consultation, we want to discuss how these requirements for land use planning can be implemented in the Far North.

Question to Consider

How should community land use planning and local Aboriginal community support for new mine openings
be reflected in the approvals system for mining in the Far North?

5. Private Rights and Interests (Surface Rights/Mining Rights Conflicts)

For the purpose of mineral exploration in Ontario, the Mining Act defines two types of land rights and ownership. “Mining Rights” are the rights to minerals on, in or under any land; and “surface rights” are all other rights, besides mining rights, in land.

These distinctive land rights may be held by the same person or could be held separately. If the Crown holds the mining rights on lands that are open for staking, any person with a prospector’s licence may stake the land and attain the exclusive right to explore for minerals. In recent years, conflicts have arisen as a result of exploration companies or individuals entering private property, where mineral rights are owned by the Crown, to stake out mining claims or to undertake ground exploration work.

In southern Ontario (south of the French River and Lake Nipissing) only about 1.4 per cent of the land consists of privately held surface rights that do not include mineral rights (Crown mineral rights). These properties are concentrated in areas northwest of Kingston and northeast of Peterborough.

In Northern Ontario, approximately 0.4 per cent of the land consists of private surface rights properties that do not include mineral rights. These properties are spread across the near north around communities such as Kenora, Thunder Bay, Sault Ste Marie, Sudbury, North Bay, Timmins, Kirkland Lake and Cobalt. Northern mining communities are supportive of maintaining separate surface rights and mining rights in order to maintain mineral development over the long term.

The ministry posted proposed Mining Act changes on the Environmental Registry in July 2007. The proposal put forward several potential changes:
• Introducing map staking in place of physical staking i n southern Ontario and requiring restoration of surface conditions on private land after exploration
• Broadening the list of specific lands that are not open to claim staking
• Introducing notification rules for claim staking and enhanced prior notification for exploration work
• Requiring landowner consent for exploration on an expanded list of categories of private lands.

In this consultation, we hope to build on our previous surface rights/mining rights consultation to reduce or remove conflicts.

Questions to Consider

• How could a requirement to file an exploration work plan complement the proposed changes to the Mining Act that were discussed in the 2007 EBR posting?
• What other ways could we protect the interests of surface rights property owners while maintaining access to Crown mineral resources?

Glossary of Ontario Mining Act Terms

Domestic Processing Requirement: All lands disposed of under the Mining Act or any other act are subject to the condition that all ores or minerals mined shall be treated and refined in Canada. In cases where domestic processing is determined to be non-viable, the government may exempt certain lands from the processing requirement for a set period of time.

Free Entry: The right of access to Crown-owned mineral resources that are situated on any lands that are open for exploration and mining. This concept includes:
• A right of free access to lands on which the minerals are in public ownership
• A right to acquire the exclusive rights to explore for minerals through the staking out of a mining claim
• A right to proceed to bring a mining claim to lease (acquire mining land tenure required as a prerequisite to mining)
Note: In order to develop a mine, a lease holder must obtain a broad set of provincial and federal permits and approvals.

Impact Benefit Agreements (IBAs): Agreements signed between mining companies and First Nation communities in Canada in order to establish formal relationships between them to reduce the predicted impact of a mine and secure economic benefit for affected communities.

Map Staking: A system of acquiring mining claims that does not require the on-the-ground physical demarcation of claim boundaries. Map staking could involve a “paper map selection process” that uses the survey fabric on existing claim maps, or a fully electronic system using a Geographic Information System.

Mine Rehabilitation: Measures, including protective measures, taken in accordance with the prescribed standards to treat a site or mine hazard so that the use or condition of the site, is restored to its former use or condition, or is made suitable for a use that the Director of Mine Rehabilitation sees fit.

Mine Closure Plan: A plan to rehabilitate a site or mine hazard that has been prepared and filed in accordance with the Mining Act and that includes a provision of financial assurance to the Crown for the performance of the closure plan requirements.

Minerals: All naturally occurring metallic and non-metallic minerals, including natural gas, petroleum, coal, salt, quarry and pit material, gold, silver and all rare and precious minerals and metals, but does not include sand, gravel and peat.

Mineral Exploration: The search for deposits of useful minerals or fossil fuels including prospecting and more advanced activities that establish the nature of a known mineral deposit prior to mine development. Exploration activities may include geoscience surveys such as remote sensing, photogeology, geophysical and geochemical methods.

Mineral Tenure System: Refers to the system for acquiring:
• Exclusive rights to explore for Crown minerals (mining claims, Exploratory Licences of Occupation) and
• Mining rights (mining leases, freehold patents and mining Licences of Occupation)

Mineral Rights / Mining Rights: The right to minerals on, in or under any land.

Mining Claim: A defined area of land staked out by a prospector licensee that gives a claim holder the exclusive right to explore for Crown minerals. The minimum size of a mining claim is 16 hectares (400 metres to a side); the maximum size is 16 claim units.

Mining Lands include:
a) Lands and mining rights patented or leased under the Mining Act
b) Lands or mining rights located, staked out, used or intended to be used for mining purposes
c) Surface rights granted solely for mining purposes.

Mining Lease: A defined area of mining land (previously a mining claim or part of a claim) that gives the holder title to the minerals.
Note: A claim holder has the right to obtain a mining lease for part or all of a mining claim, by complying with all the related requirements under the Mining Act.

Prospecting: The physical search for minerals, fossils, precious metals or mineral specimens.

Resource Benefits Sharing: A mechanism to include Aboriginal people in the assorted benefits of natural resource development within Ontario.
The benefits range from:
• Crown resource revenue sharing – the sharing of Crown revenues from natural resource development with Aboriginal communities
• Crown resource sharing – ensuring Aboriginal communities have natural resource allocations;
• Involving Aboriginal communities in the management of natural resources – such as resource management councils and co-management arrangements; and private sector collaboration and cooperation with Aboriginal communities

Surface Right: Every right in land other than mining rights.

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