(c) Shared Value Solutions Ltd., 2013
This is the second in our series of blog posts on Ontario's new Mining Act and the mandatory regulations that take effect on April 1, 2013. Last week's post is titled "Follow the Money, Follow e3 Plus: Ontario's New Mining Act and Aboriginal Consultation" and included information on Ontario Regulation 6/96 and Ontario Regulation 45/11 under the Mining Act. If, after reading these posts, you want some guidance or advice, we’re here to help and we’re a phone call away and easy to contact. There’s no charge for a good phone conversation or chat over coffee. We like to work with explorers and Aboriginal communities interested in getting on the right track and creating some shared value solutions.
By Scott Mackay, MSc, RPP, MCIP Managing Partner with research assistance from Kerry Ground
Until recently, Aboriginal communities in mining areas of Ontario were regularly being surprised by drilling rigs and camps suddenly “showing up” on the land in areas they considered sacred and sensitive. Until recently, exploration companies were regularly being surprised, and even sidelined, by the negative reaction from Aboriginal communities to what was considered a lawful, routine, and required set of operations in the mining industry- one which did not require permits or approvals.
The modernization of Ontario’s Mining Act means that companies pursuing mining exploration projects now have to apply for permits and consult with potentially affected Aboriginal communities (see our previous blog post on Ontario's new Mining Act). While this helps to create additional certainty for both companies and communities, it also comes with added workload and due diligence for both parties.
But an additional provision in the new Mining Act allows Aboriginal communities, or communities collaborating with interested developers looking for greater certainty, to get upstream of the staking and exploration permitting process to identify “no go” areas which are culturally significant.
The legislative and policy basis for this change are found in Ontario Regulation 45/11 (see section 9.10) and in the Ministry of Northern Development & Mines' Policy on Sites of Aboriginal Cultural Significance.
The process is relatively straight-forward. A community, First Nation or Métis, working independently or working with a company with which it has an development agreement, identifies culturally significant areas which meet the criteria of:
- 25 hectares in size or smaller
- Being strongly associated with social, cultural, sacred or ceremonial purposes, including because of its traditional use by that community, according to Aboriginal traditions, observances, customs or beliefs.
- It is in a fixed location, subject to clear geographic description or delineation on a map.
- Its identification is supported by the community, as evidenced by appropriate documentation.
The community then applies to the Ministry of Northern Development and Mines (MNDM) to have these areas removed or restricted from staking and exploration using an Application for an Order Withdrawing a Site of Aboriginal Cultural Significance.
If approved, the sites will be withdrawn and shown as withdrawn on claims maps. There are some restrictions however, as shown in the section below.
The applicable regulation under the Mining Act states that, in deciding whether to approve such an application, “the Minister may consider whether other mechanisms are available and appropriate to protect the site”. Accordingly, it remains to be seen what other, less restrictive, options aside from withdrawal or restriction orders the Minister may use to meet the same ends. One alternative MNDM discusses in its policy document is putting conditions or restrictions on individual exploration permits. Where communities are working closely with developers there are obvious benefits to working together to achieve a common understanding of ways to protect theses sites.
There are multiple benefits for an Aboriginal community, working independently or with a company around a development agreement, for gathering and mapping its traditional land-use and traditional knowledge, including traditional ecological knowledge. Some of the benefits include:
- Describing and identifying impacts from resource development to Aboriginal and Treaty rights. This has particular importance considering the new Canadian Environmental Assessment Act provisions (see our previous blog post on this topic) and aboriginal traditional knowledge in environmental assessments.
- Creating an important focal point for community discussion and appreciation of the value and future of its lands.
- Transferring this important knowledge and record of the community’s use of the land from elders and adult knowledge-holders to youth and future generations.
- Generating important supporting evidence for land claims and other legal processes.
Shared Value Solutions Ltd. regularly undertakes Traditional Knowledge and Traditional Land Use studies (TK/TLU). Often these studies are undertaken within the context of development agreements between Aboriginal communities and companies. We take a combined video ethnography and participatory mapping approach based on the methods of Terry Tobias as best described in his book “Living Proof: The Essential Data-Collection Guide For Indigenous Use-and-Occupancy Map Surveys”. A recent project example is work for Magnetawan First Nation for a study to help the community identify culturally significant and traditional land-use areas as input to the environmental assessment and design of the Ontario Ministry of Transportation’s Highway 69 Four-Laning project between Parry Sound and Sudbury.
If you are a company in the process of creating a development agreement or a community entering into such an agreement, let us help you get upstream of the claim staking and exploration process to protect the community’s culturally significant sites and take advantage of the many other opportunities a TK/TLU study has to offer!
Eligible and Ineligible Lands Under the Legislation and Policy
Lands that are intended to be captured by the Act include:
• Places of worship or other sacred purpose;
• Burial grounds;
• Traditional teaching or meeting places;
• Ceremonial lands; and
• Pictographs and petroglyphs.
Lands or areas generally not intended to be captured by the Act and regulation but for which other tools exist to address concerns that Aboriginal communities may have about adverse affects, include:
• Trap lines and areas;
• Hunting or fishing grounds;
• Wildlife migration routes;
• Travel or trade routes;
Shared Value Solutions Ltd. is one of the first 100 B Corporations in Canada. We bring the best environmental peer review, strategic advice, community engagement and traditional knowledge, land use, and socio-economic research expertise to address your challenges and opportunities. Working with leading companies, civil society, Aboriginal communities and government organizations, we drive shared value solutions.