Mining Act missing from discussion

This article by Environment North member Charlene Rogers was originally publised in the Chronicle Journal on January 17, 2014.

Laws and policies organize societies. They are the invisible web within which we interact with each other and with our environment. Look at a country's laws and policies and you can see what those people value or don't value by what their laws protect or not. Natural resource policy in Canada In the past did not consider the environment or the rights of Aboriginal peoples because natural resource exploitation has been and continues to be a major economic driver for the Canadian economy. Its purpose is to promote the exploitation of natural resources for profit by private enterprise. The consideration of interests other than industry is fairly new, driven by the changing values of society.

In Ontario, we have a very old law - albeit one in the process of being "modernized" - in the form of the Ontario Mining Act. Designed to enable resource extraction, there are very few laws or policies that can interfere with it or with mining exploration and development. Mining is often considered to be the best use of land, regardless of other interests in it, particularly in the north. However, recent conflicts between mining companies and First Nations highlight some of the problems inherent in the Mining Act and mineral development policy.

In December 2013, Lakehead University hosted a mining conference with an ambitious goal - to create policy recommendations to be put forward to the Ontario government that would promote sustainable mining development in our region. Presenters and attendees represented the mining industry, First Nations and environmental groups. Discussions focused on what policies could be put in place to ensure significant and lasting benefits to the region, and First Nations whose traditional territories will be most impacted from the mineral development. While potential new policies are important, an assessment of the existing Ontario Mining Act either historically or in its "modernized" form, was missing from conference discussions. Yet, it is from this Act that the rights of the mining industry flow and come into direct conflict with Aboriginal and Treaty Rights, communities and the environment.

One key aspect of the Mining Act is the "free entry" system. This policy enables miners to stake claims prior to consultation or notification to Aboriginal peoples or to the surface rights owner, and remains unchanged in the 'modernized' Ontario Mining Act. While the mining industry maintains that only a small number of claims will ever be developed into a mine, this is not the point. A claim creates a right. It creates an interest in the land that supersedes the interests of various communities and the environment. Amendments to the Mining Act in 2009 do require prior notification of certain exploration activities, generally involving heavier equipment. But in order to engage in exploration activities, a claim must first be recorded. Thus, the right is established before the notification is given. Furthermore, if a claim holds a promising deposit, the mining company has a right to lease the land and develop the mine.

Generally the only conversations at this point are how the development will occur and who will reap the benefits. According to one conference presenter, Ontario ranks lowest in Canada for receiving the economic benefits of mining activities at 1.1% of gross value mined (compared to Saskatchewan, the highest at 11.1%).

Most people can acknowledge "sustainable" mining is an oxymoron. Clearly a non-renewable resource will not last forever. However, as a society we can call for a mining industry that is more socially and environmentally responsible. And we need to consider factors that determine viability from a broad perspective. Should we run the risk of depleting the natural capital of future generations or not considering other opportunities because of a narrowly constructed mining law? Discussions about responsible development need to occur before mining interests are asserted. Free entry, and the rights that result from it, tie all conversations to timelines outside of the control of the people and communities most affected now and in the future.

To view the presentations held by the Centre of Excellence for Sustainable Mining and Exploration at the Lakehead University Conference visit cesme.lakeheadu.ca/policy-conference/