Application to Review the Mining Act
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Introduction
In January 2008, an EBR application was submitted requesting a review of the Mining Act and the Provincial Parks and Conservation Reserves Act. The applicants were concerned that the existing legislative framework inadequately addresses the withdrawal of lands from mineral staking, particularly those lands that are ecologically significant. Staking involves marking a section of land to claim the sole right to prospect for minerals and the statutory privilege to later apply for a lease; when lands are withdrawn from mineral staking, mining is not permitted on those properties. This application for review was forwarded to the Ministry of Northern Development and Mines (MNDM) and the Ministry of Natural Resources (MNR).
The applicants stated that the Mining Act should be amended immediately, prior to any other pending reviews of the legislation. The applicants stated that amendments were needed forthwith to prevent “potential harm to the environment” and that the current system for withdrawing lands from mineral staking is prone to error.
They stated, “There are several examples in previous ECO reports of poor information provided to the public and prospectors.” As one example of their concerns, the applicants made reference to the issue of lands that were not withdrawn along the Attawapiskat River that prevented the creation of a provincial park along a 35-kilometre stretch of this northern river. The applicants stated that the lakebeds of all the Great Lakes are protected from mineral development by an Order in Council made in 1912. The applicants believed that this Order in Council is still in effect, yet MNDM’s online claims mapping system does not show that the lakebeds of the Great Lakes are withdrawn from mineral staking, creating the risk that these areas could be staked mistakenly for mineral development.
MNDM response
In May 2008, MNDM denied this EBR application. The ministry states it has “taken action to resolve these isolated incidences” in which the lack of withdrawal orders has impaired the ability of MNR to regulate sites as protected areas. For example, the ministry states that the applicants’ example of the lack of withdrawal orders preventing the establishment of a protected area along the entire course of the Attawapiskat river “is an anomaly, and not illustrative of a systematic failure of claim recording in Ontario.” In this case, MNDM states that the necessary withdrawal orders were “imposed, but never fully documented” and “corporate memory of the withdrawal was lost.” In regard to other areas that face similar conflicts, MNDM states that there has been an “ongoing attempt to resolve these issues.”
MNDM states that there is no need to confer the authority to MNR to order the withdrawal of ecologically significant lands or areas that are candidates to be regulated as protected areas from eligibility for staking. Indeed, MNDM states that the applicants’ concern and the “rationale for this proposal is not clear.” The ministry states that it has a “clear and distinct” mandate from MNR and that it is solely responsible for the administration of the Mining Act. MNDM states that “there is no reason to alter the mandates of MNDM or MNR with respect to the administration of mining lands or withdrawal orders.”
The ministry confirms that the Great Lakes are withdrawn from mineral staking, based on the Order in Council from 1912. However, MNDM states that “due to technical limitations” with their online mapping database, the Great Lakes are not actually shown to be withdrawn from mineral staking. The ministry states that “as a technical compromise,” members of the public accessing the online mapping database will now be provided with links that provide this information.
MNDM does acknowledge that it will be reviewing the Mining Act. The ministry states that the Premier, during the 2007 provincial election campaign, committed to “work with the mining industry, First Nation communities, environmental groups and other stakeholders to undertake a comprehensive and consultative review of the Act.”
The ministry also notes that it will shortly “put in place a series of measures designed to allay concerns of Aboriginal communities, and provide guidance to industry and staff on the duty to consult.” Additionally, MNDM states that a key element of this “transitional approach” is a pilot project that will enable the withdrawal of lands for the protection of significant cultural and burial sites of First Nations.
MNR response
In April 2008, MNR denied this EBR application as “the public interest did not warrant a review” and that it does not appear that there will be harm to the environment if a review is not undertaken. The ministry states that the Provincial Parks and Conservation Reserves Act does not necessitate any amendments as it had undergone an extensive consultation process during its development and it had been recently enacted in 2006. Further, MNR stated that the Mining Act is outside of its legislative responsibility.
ECO Comment
The ECO is troubled that MNDM denied this EBR application. The ministry will shortly be reviewing the Mining Act, as directed by the Premier. The ministry made no mention of considering the applicants’ concerns in this forthcoming review. The ECO concurs with MNR’s rationale for not undertaking this review, although the ECO does not agree that the current system for withdrawing lands from mineral staking is adequate.
The ECO does not share MNDM’s position that the failure to adequately withdraw lands from mineral staking has been a series of anomalies or isolated incidences that were not illustrative of a systematic problem. The ECO notes that it raised concerns about the need for legislative reform in our 2006-2007 Annual Report. In that report, the ECO recommended that MNDM “reform the Mining Act to reflect land use priorities of Ontarians today, including ecological values.” Further, the ECO has extensively commented on the problems of mining disentanglement, noting in that same report “that lands should be withdrawn from staking when MNR identifies them as candidates for protection. Conflicts such as these are mainly attributable to the disjunction between laws, such as the Public Lands Act administered by MNR to manage Crown land, and laws such as the Mining Act administered by MNDM to facilitate mineral development.”
The lakebeds of the Great Lakes and some major rivers were withdrawn from staking for mineral development by an Order in Council in 1912. This Order states that Lake Superior, the St. Marys River, Lake Huron (including Georgian Bay), the St. Clair River, Lake St. Clair, the Detroit River, Lake Erie, the Niagara River, Lake Ontario, the St. Lawrence River, and Lake Nipissing are withdrawn from mineral staking. This Order in Council remains in effect today. The ECO agrees with the applicants that such an environmentally significant directive should be explicitly reflected in the primary law governing mineral development in Ontario.
| This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Reforming the Mining Act." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 147-149.
