The Mining Act and the Duty to Consult with First Nations
| In 2007, the ECO undertook an extensive analysis of the environmental implications of various land use policies and allocation decisions in Ontario’s northern boreal landscape. The following articles are included: | |
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The Ontario government has a clear duty, pursuant to the Canadian Constitution Act, 1982, to consult with First Nations where Crown actions may adversely affect Aboriginal title or rights. This duty has been affirmed by the Supreme Court of Canada in numerous decisions over the years. Yet, the Mining Act does not impose any requirements on the government to consult with First Nations when taking actions, such as granting mining claims or leases, that may affect Aboriginal interests.
A recent case by the Ontario Superior Court, Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, seriously questions the existing approach to consultation in the context of mining exploration and development in Ontario. In this case, MNDM had granted a number of mining claims and leases to Platinex (a small exploration company) on Crown land located within the traditional territory of the Kitchenuhmaykoosib Inninuwug First Nation (KI). Despite KI’s objections, Platinex intended to proceed with exploration in KI’s traditional territory. KI established a blockade to prevent Platinex from drilling and ultimately forced Platinex to vacate the site. Platinex commenced a lawsuit against KI.
In July 2006, the court issued a decision in favour of KI, ordering Platinex to halt drilling operations in KI traditional territory, and requiring the parties to go back to the table and engage in a proper consultation process. The Court noted that MNDM has a duty to undertake meaningful and reasonable consultation with First Nations when granting mining claims and leases that may impact their rights, and that such duty cannot be abdicated or delegated to third parties. (In May 2007, after the province and Platinex had engaged in reasonable consultation with KI, the court permitted Platinex to resume some drilling while requiring on-going consultation to occur.)
Because of the supremacy of the Constitution Act, 1982, the obligations for consultation and accommodation prevail regardless of whether there are express provisions included in the Mining Act. Nonetheless, the Ontario government should amend the Mining Act to include specific criteria that reflect MNDM’s constitutional duty to consult with First Nations when granting mining claims and leases that may impact their rights. This case also provides strong direction for the government to re-evaluate the existing regulatory structure that treats public land as freely open to mineral exploration.
At a minimum, this case calls for the province to develop and apply appropriate consultation polices or regulations in relation to resource decisions. This would not only ensure that proper consultation occurs, but would also alleviate the uncertainty that developers face in satisfying themselves that the government has fulfilled its constitutional duty to consult with First Nations when granting mining rights.
The Ontario government has been working towards developing better Aboriginal consultation policies. Most recently, in February 2007, MNDM released a discussion paper, entitled Toward Developing an Aboriginal Consultation Approach for Mineral Sector Activities. In this discussion paper, MNDM reaffirms its commitment to meeting its constitutional duty to meaningfully consult with First Nations where its actions may adversely affect Aboriginal or treaty rights, and sets out an approach for engagement with First Nations.
| This is an article from the 2006/07 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2007. "Developing Priorities: The Challenge of Creating a Sustainable Planning System in Northern Ontario." Reconciling our Priorities, ECO Annual Report, 2006-07. Toronto, ON : Environmental Commissioner of Ontario. 68-69.
