Where Ontario’s New Mining Act Fails the Industry – by Marilyn Scales

Marilyn Scales is a field editor for the Canadian Mining Journal, Canada’s first mining publication. She is one of Canada’s most senior mining commentators.

I had a lengthy and most interesting phone call from Michael Leahy last week concerning the proposed changes to the Ontario Mining Act. First, he said, the Mining Act passed in 1873 was never a static document. It has been amended many times, including a complete rewrite in 1990. Leahy knows whereof he speaks because he was involved in the revisions two decades ago, and until 2006 he sat on (and chaired) the Minister’s Mining Act Committee.

Still actively prospecting from his home in Kirkland Lake, Leahy says enforcement of the Mining Act will come through the passage of various regulations as set out in the Act. Until these regulations are written, much of the practical application of the Act is uncertain. 

The Ontario government has also significantly broadened its powers of regulation with this Mining Act. Leahy is correct to point out that regulations are passed without the public readings and procedures necessary to get bills through the provincial parliament. That leaves me wondering if regulatory changes will be made arbitrarily, with no notice and less consultation.

Leahy pointed out that the concept of ‘native traditional lands’ is unclear. To clarify the situation, he added that First Nations have been granted reserves that are held in trust by the federal government. The reserves cover little area, but they are surrounded by a bubble of ‘traditional lands’ where bands have historically carried out their hunting and other activities. The traditional lands cover all of Ontario, and they overlap. In effect, more than 100% of the province is traditional land, even that which is the Greater Toronto Area. 

The Supreme Court has said that government must consult with Aboriginal people about uses of traditional lands that could impact native communities, Leahy noted. “But Ontario thinks that means individual prospectors have to do it, too. That’s an onerous requirement for an individual.”

He noted the case of having to consult with several native communities whose traditional lands overlap. There might be half a dozen bands involved – one a hundred miles away, one 50 miles away in a different direction, another in Quebec. The logistics are complicated. (It’s a big province.) And there is the problem of knowing who the decision makers are in each village or band.

Here is a chilling thought. Leahy drew my attention to the provisions of the Act that will allow an inspector acting for the province to go onto “any place, mining lands or other lands or premises connected or associated with staking, exploration activity, mine advanced exploration project, abandoned mine or mine hazard…” and “…request the production of any documents relevant to the inspection, including but not limited to drawings, specifications, plans, licences, leases, permits, records, receipts or reports” and remove them from the premises. Inspectors also have the right to search any computer for relevant files. Did I mention no warrant is needed? “Dwellings” are excluded, but presumably an inspector could get a warrant and show up at a prospector’s home.

What about confidentiality and due diligence? I wondered. If I were bound by a confidentiality agreement while I examined the assets and books of a company on which I was doing due diligence, could a provincial inspector violate that confidence? Probably yes.

Worse case scenario: A provincial inspector swoops into the head office of a large international mining company and walks out with its business records. Such a case almost defies imagination. 

A new requirement proposed under the Mining Act is one for prospectors to take “awareness” training before obtaining or renewing a licence. Leahy said there are probably 4,000 prospecting licences issued in the province, and that number will shrink as some individuals refuse to take the training. No word whether the prospector will have to pay for the training; such details will not be confirmed until the regulations are in place.

Leahy is also concerned that the ‘Far North’ provisions of the Mining Act will cause years of delay for new mining projects. The Act will not allow new mines to be built in the Far North until a community-based land use plan for the area has been created. That could take more than a decade, he believes.

Moreover, Ontario’s Boreal forest protection plan would set aside half the Far North, prohibiting mineral, forestry and industrial development. The other half would be subject to stiffer rules under the new Mining Act, subject to the land use plans.

Leahy pointed out that his reading of that part of the Mining Act appears to exempt existing claims from the new rules. So if a company or person holds a claim, make sure to keep it in good standing. Allowing it to lapse will trigger the need to comply with land use plans to be created sometime in the future or possible forfeiture if the claims fall within the areas to be withdrawn from staking.

These are legitimate concerns that are making the prospecting industry uneasy. They need to be addressed sooner rather than later. With so many regulations yet to be written, uncertainty continues. And the clumsy mechanism for land use planning in the Far North is going to create delays in exploration. Whatever delays exploration, delays mining and reduces Ontario’s industrial base.

Nor are prospectors the only group to find fault with the proposed Mining Act. Some sections are of concern to Aboriginal communities. Read about it in next Monday’s “Canadian Perspective: Where Ontario’s new Mining Act fails Aboriginal communities.”

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