Ontario’s New Mining Act & Aboriginal Consultation
By Don Richardson, Kerry Ground, Nichole Fraser-MacDonald, Scott Mackay, Jeremy Shute and Laura Taylor
(c) Shared Value Solutions Ltd., 2013
If, after reading this, 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.
The Government of Ontario recently ‘modernized’ the new Ontario Mining Act. The new regulations came into effect November 1, 2012 and became mandatory on April 1, 2013.
As with most legislation, the devil’s in the details, or in this case, in the accompanying regulations. For both mining exploration companies (explorers) and Aboriginal communities, it’s very important to “follow the money” aspects of the regulations, especially Ontario Regulation 6/96.
In general, with regard to Aboriginal consultation, the key parts to the new Act are:
- New exploration plan and permit requirements – explorers must notify and consult with Aboriginal communities and surface rights owners who may be affected by proposed exploration activities;
- Mining Act Awareness Program – informs prospectors about changes to Mining Act, including early exploration and Aboriginal consultation, and how consultation costs might be recouped;
- Sites of Aboriginal Significance – Aboriginal peoples are now able to apply to have sites withdrawn due to Aboriginal cultural significance under Ontario Regulation 45/11.
The bottom line for explorers: if you want to make money and manage risk in the Ontario mining business, take the new Act’s requirements for Aboriginal consultation seriously and take advantage of the guidance available in the Prospectors and Developer’s Association of Canada’s (PDAC) e3 Plus Framework for Responsible Exploration.
The bottom line for Aboriginal communities: If you represent an Aboriginal community, recognize that the new Ontario Mining Act and its regulations have a lot to say about Aboriginal consultation and accommodation. And recognize that the e3 Plus Framework for Responsible Exploration is a terrific tool for helping your community orient explorers around mining industry expectations for the social, environmental and health and safety performance considerations for Aboriginal consultation, and good practice in general.
We start in Section 1 by looking at some general implications and ideas for the mining industry and follow that in Section 2 with some general implications and ideas for Aboriginal communities.
Check back here for our forthcoming companion blog post: “Get Upstream to Protect Culturally Significant Areas Through the New Mining Act” to fully understand the implications and opportunities for Aboriginal communities with the new Mining Act. Below are some key implications of the Act.
1) Mining Industry & Aboriginal Consultation: “Follow the Money” and e3 Plus Considerations
1.1 General Implications
- Explorers must submit an Exploration Plan. Before deciding whether to issue a permit, the Director of Exploration will consider whether Aboriginal consultation has occurred and the arrangements made with Aboriginal communities that may be affected by exploration. The e3 Plus Framework for Responsible Exploration is an excellent primer for framing both consultation and the social, environmental and health and safety performance considerations for an exploration plan.
- Advanced exploration and mine production cannot occur until Aboriginal consultation has been conducted in accordance with the regulations, to the satisfaction of the Director.
- The Act provides a dispute resolution mechanism for disputes related to Aboriginal consultation.
- For companies undertaking rehabilitation of mining lands, the Director will consider whether Aboriginal consultation has occurred before granting a permit.
- After April 1st, 2013, investors will probably be looking for evidence that explorers are following the Act and regulations. Smart investors will also be looking to see if explorers are taking full advantage of opportunities to recoup consultation costs.
- Explorers should consider using the e3 Plus Framework for Responsible Exploration to help describe to their consultation activities and their contributions to community development and wellbeing.
- Follow the Money: And yes, there are provisions for recouping the cost of Aboriginal consultation under Ontario Regulation 6/96, but you must keep accurate records of the people with whom you have consulted and all actual costs associated with Aboriginal consultation if you expect to be able to recoup costs.
- Follow the Money: The list of eligible costs under Ontario Regulation 6/96 tells a story of what the Director might reasonably be expecting to see as part of an Aboriginal consultation effort:
- costs for document preparation,
- travel (including travel for community members to accommodate consultation),
- meeting costs,
- costs for third party review of technical documents, studies or mapping projects (such as traditional knowledge studies or traditional land use and mapping studies), and
- honouraria for Elders or other designated community members directly participating in a consultation activity.
1.2 Ideas to Help Explorers Meet the Director’s Expectations
- Spend time building relationships with communities. You know how to build relationships with investors, suppliers and regulators. Use those relationship building skills.
- If you think Aboriginal communities are your adversaries, you may be making a serious mistake. Think about how you can work with Aboriginal communities to “make the pie bigger” and create new value through combining your efforts and resources with theirs.
- Consider how project activities might add value to communities, through jobs, shared environmental data and environmental monitoring, traditional ecological knowledge studies or traditional land use studies, training and youth programs, BEAHR training and jobs for aboriginal environmental monitors, health and safety initiatives, discussions with Elders and Aboriginal Knowledge Holders, and through active participation in projects.
- Develop agreements for access to traditional territory and for environmental & health and safety considerations. Develop protocols for sharing information, and include these agreements with permit applications.
- Document all your meetings, phone calls and emails and prepare a summary document on Aboriginal consultation with permit applications, and this will also come in handy in case you need to access the dispute resolution mechanism in the Act.
- Regularly review the e3 Plus Framework for Responsible Exploration to help continuously improve social, environmental and health and safety performance and integrate these three aspects in exploration programs and consultation approaches. Pay special attention to the content on community engagement. Document your Aboriginal consultation work using indicators you can derive from the e3 Plus Framework for Responsible Exploration.
- Better understand Aboriginal and Treaty rights and desires for improving Aboriginal community wellbeing by building relationships and engaging in frank conversations with Aboriginal community members. Legal interpretations are valuable, but they are no substitute for good conversations.
- Recognize that Aboriginal communities often do not have time, money, staff resources or the detailed technical expertise required to engage. Capacity development and funding for third party review of technical documents, studies or mapping projects can go a long way to building relationships and establishing mutual understanding. If you are not sure about how to recoup these costs or what is eligible, speak with the Ministry.
- Industry associations, such as PDAC, can assist by working with members to share stories and evaluations of the return on investment yielded by spending time, money and staff resources to improve community relationships. Did the time, funds, and staff resources invested in notifying and consulting Aboriginal communities pay off in the long run? Companies can be encouraged to set indicators, based on tools such as the e3 Plus Framework for Responsible Exploration, early on, to monitor and measure to determine success.
2) Aboriginal Communities and Mining Industry Consultation: “Follow the Money” and e3 Plus Considerations
2.1 General Implications
- Some of the changes in the new Mining Act are meant to ensure that Aboriginal communities are appropriately notified and consulted throughout the mining sequence.
- There is potential for building positive relationships with the mining industry that yield social, environmental and economic benefits.
- The new Mining Act and associated regulations contain expectations for explorers to consider contributng to your costs for participating in consultation and obtaining third party assistance for review of technical documents, and community studies or mapping projects related to the explorer’s sites.
- Explorers may be eligible to recoup costs for third party assistance and community funding for such things as traditional knowledge studies, traditional land use and mapping studies, efforts to identify and map sites of Aboriginal cultural significance and Aboriginal ecological knowledge studies.
2.2 Ideas to Help Aboriginal Communities work with Explorers
Spend time building relationships with explorers. You know how to build relationships with other Aboriginal communities, with local communities, with suppliers, consultants and government officials. Use those relationship building skills.
- If you think explorers are your adversaries, you may be making a serious mistake. Think about how you can work with explorers to “make the pie bigger” and create new value through combining your efforts and resources with theirs.
- Get familiar with the industry “best practices” contained in the Prospectors and Developer’s Association of Canada’s (PDAC) e3 Plus Framework for Responsible Exploration. Remind explorers that you expect them to make use of this industry generated guidance for social, environmental and health and safety performance.
- As you spend time building relationships with explorers in your area, think creatively about how their project activities might add value to your community, through jobs, shared environmental data and environmental monitoring, training and youth programs, provision of goods and services, health and safety initiatives, discussions with Elders and Aboriginal Knowledge Holders, and through active participation in projects.
- Be prepared to work with explorers to develop agreements for access to traditional territory and for environmental considerations. Consider developing consultation protocols and protocols for sharing information.
- Document all your meetings, phone calls and emails. Your notes and meeting minutes will help guide your thinking around any future agreements and will come in handy in case you need to access the dispute resolution mechanism in the Act.
- Recognize and plan for the time, money, staff resources, and understanding of the mining sector and cycle that are required to for effective engagement.
- You can expect to see a lot more project notifications after April 1st, 2013 – this is no April Fools’ Joke!
- Don’t be afraid to ask for technical advisory services, legal support and administrative capacity if you need it. Remind companies that they may be able to recoup many of the costs associated your participation in consultation activities, including costs for critical third party review of technical documents, studies or mapping projects. Traditional knowledge studies or traditional land use and mapping studies, efforts to identify and map sites of Aboriginal cultural significance and Aboriginal ecological knowledge studies, all may be eligible for explorers to recoup costs under Ontario Regulation 6/96.
- Recognize that your existing community programs, plans and existing documents for land use planning and traditional knowledge / traditional land use studies and ecological mapping take on additional importance with the new Mining Act. Take some time to consider how to protect this information for long term community use, benefit and access, including off-site data storage to protect critical documents from risk of fire, flood and computer failures.
- If you have sites of cultural significance within your traditional territory, and you wish to protect those sites from potential damage or incursion from exploration activities, the new Mining Act may help. The Ministry has a guidance document on Sites of Aboriginal Cultural Significance on its website, but it's also good advice to sit down with explorers and help them understand why these sites need to be protected and discuss your ideas to help protect them. Sites with a surface area of 25 hectares or less, may be considered as a site of Aboriginal cultural significance for the purposes of the Act if the following criteria are met:
- strongly associated with an Aboriginal community for social, cultural, sacred or ceremonial reasons, including because of its traditional use by that community, according to Aboriginal traditions, observances, customs or beliefs;
- 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.
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.