Speaker Panel Nalin Sahni, B.Sc. (Eng.), M.E.M., J.D. Associate, FMC Law Practice focused on litigation and commercial transactions with complex environmental, energy, Aboriginal, and mining issues Geological engineering degree and Masters in environmental management Caroline Thomas Chief Counsel, Exploration, Property & Aboriginal Affairs, Vale Senior lawyer responsible for mineral rights, exploration projects, aboriginal relations and mineral reserve and mineral reporting and estimation across Vale s global base metals business Spearheaded Vale s development of standardized exploration documentation and approach in NA Paul MacLean President, EEM Sustainable Management Over twenty years experience advising clients on embedding sustainable development into business processes, capacity building, integrated management systems and EHS compliance issues Clients include large global mining firms and juniors at various stages of exploration/development
Webinar Agenda Introduction Module 1: Nalin Sahni The End of the Free Entry System Module 2: Caroline Thomas Proposed Regulations for Exploration Plans and Permits in Ontario Module 3: Paul MacLean Aboriginal Consultation Module 4: Issues/Questions
Introduction From the MNDM website, proposed provisions would introduce new rules such as: Undertaking early exploration activities, including reclamation requirements and compliance measures; Aboriginal notification and consultation for certain early exploration activities, closure plans for advanced exploration projects and mines and for voluntary rehabilitation projects; Withdrawals from staking or surface restrictions for sites of Aboriginal cultural significance; Requirements for prospectors to take a Mining Act awareness program; Assessment work provisions for mining claims.
The End of the Free Entry System: A New Paradigm for Mining in Ontario Presented by: Nalin Sahni July 25, 2012 5
Driving Factors Management of natural resources must take into account the rights and interests of Aboriginal people more effectively. I believe there are ways of sharing and co managing natural resources that are consistent with Aboriginal and treaty rights while serving the interests of first nations and the people of Ontario. Justice Linden: Ipperwash Inquiry 6
Four Big Changes to Mining and Aboriginal Law 1. Proposed Ontario Mining Act Regulations New purpose clause recognizing Aboriginal and Treaty Rights Early exploration activities require Aboriginal consultation though exploration plan filing or obtaining an exploration permit 2. Far North Act Land use planning for the northernmost 42% of Ontario No mine opening until community based land use plans are developed Plans must be agreed upon by all Band Councils in the area and Ontario 3. Canadian Environmental Assessment Act ( CEAA ) reenactment Streamlined federal environmental assessments ( EA ) applying to fewer projects Only designated projects will require an EA More discretion for the Minister and Cabinet in the EA process 4. Draft Mining Class EA 7
Proposed Ontario Mining Act Regulations New Mining Act purpose clause: mineral development in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult and to minimize health, safety and environmental impacts Aboriginal consultation from start to finish Notify / consult on Exploration plans for low impact activates Consult on exploration permits for moderate impact activities, voluntary rehabilitation of mine hazards, and mine development and closure plans Scope of consultation at each stage is not clear Required 3 rd party mediation for ongoing disputes Sites of Aboriginal cultural significance are withdrawn from claim staking Continues downloading of Aboriginal consultation responsibilities from governments to proponents 8
New Paradigm for Mining in Ontario End of the free entry system Regulatory requirements for exploration in almost all circumstances Exploration plans and permits must be applied for in advance and require Aboriginal consultation Aboriginal consultation firmly embedded in the mining cycle Consultation requirements from early exploration to mine closure in proportion to the potential impact and strength of Aboriginal and treaty rights Aboriginal consultation is at the core of CEAA and the Far North Act Statutes go beyond Aboriginal constitutional requirements E.g. No development in far north before development of community plans; mandatory mediation in Mining Act Aboriginal consultation disputes Still a great deal of uncertainty for proponents Expect ongoing demands for money for comprehensive archaeological and environmental studies, legal fees, and financial payments. 9
Proposed Regulations for Exploration Plans and Permits in Ontario Caroline Thomas July 20, 2012
Proposed Regulations for Exploration Plans and Permits in Ontario Overview Regulation Proposal Notice on EBR on March 12, 2012 Descriptions of concept actual text not provided Would apply to early exploration activities (before advanced exploration & closure plan) Would include requirements for: exploration plans and exploration permits notification of surface rights owners Aboriginal consultation and rehabilitation of exploration sites when the activity is completed. To be phased in and become mandatory within 6 months after regulation is approved. 11
Proposed Regulations for Exploration Plans and Permits in Ontario Exploration Plans proposed framework Designed for low impact activities Would include: o o o general description of activity plan of general location consultation report Exponent to notify surface rights owners Ministry to provide submitted plan to aboriginal communities Comments to Director and exponent Work can begin within 30 days of submission During the 30 day period, exponent could adjust plan to be adjusted to address comments Director may require Exploration Permit if determines necessary to impose conditions Effective for 2 years 12
Proposed Regulations for Exploration Plans and Permits in Ontario Exploration Permits proposed framework Designed for low to moderate impact activities Would include: o o summary of proposed activity record of consultation conducted to date Exponent to provide application to surface rights owners Ministry to provide submitted application to aboriginal communities Posted on Environmental Registry 30 day comment period Ministry may impose terms/conditions in response to comments received Stop the clock if: o o o additional time for facilitation is required by Ministry staff dispute resolution to align with other Ministry processes Effective for 3 years 13
Proposed Regulations for Exploration Plans and Permits in Ontario Dispute Resolution for Exploration Permits proposed framework For disputes between exponent and aboriginal community Uses independent third party for facilitation/mediation Ministry would participate where required Mediator to submit report and recommendations to Ministry within 30 days Would become part of the Ministry s consultation record Costs of mediator and process paid by Ministry, parties bear own costs 14
Proposed Regulations for Exploration Plans and Permits in Ontario Provincial Standards for Early Exploration To be incorporated by reference into regulation Can be amended more easily than regulation Will cover: o warning signs for use of generator o drill casings to be clearly marked o handling of drill cuttings, fluids or mud o storage of drill core o rehabilitation o warnings for pit walls 15
Proposed Regulations for Exploration Plans and Permits in Ontario Issues Types activities that require plans vs. permits Need flexibility to adjust plans and permits No criteria for bumping plans to permits Timing and risk of delays Requirements for consultation record need to reflect impacts Stop the clock could lead to extensive delays Provincial standards can be changed without engaging stakeholders 16
Practical Implications of the Aboriginal Consultation Provisions in the Ontario Mining Act Amendments and Proposed Regulations Paul MacLean, EEM Sustainable Management July 25, 2012
Mining Act Amendments and Aboriginal Consultation Practical Implications Requirements Exploration Plans and Permits : Aboriginal consultation requirements Far North Act : Community-based land use plans and agreement by all Band Councils Claim Staking : Withdrawal of sites of Aboriginal cultural significance
Issues Mining Act Amendments and Aboriginal Consultation Practical Implications Uncertainty Absence of a defined process / absence of guidance Downloading of consultation responsibility from government to proponents First Nations capacity to administer and participate
Practical considerations Quality and quantity of consultation Definition of impact Information and disclosure by: Proponent First Nation(s) Government Mining Act Amendments and Aboriginal Consultation Practical Implications Costs of accommodation and implications for mining
Mining Act Amendments and Aboriginal Consultation Practical Implications Interim approaches for proponents and FNs In the absence of more guidance from government: Consult best practice information and guidance Engage early, regularly and to an extent consistent with the intensity of activity and the expectations of the other party Build mutual understanding of the goals/needs and resources of each party Seek advice from consultants with knowledge and confidence of the other party
Best practice guidance International Finance Corporation Performance Standards on Environmental and Social Sustainability, 2012, PS 1 ICMM Community Development Toolkit. Mining Act Amendments and Aboriginal Consultation Practical Implications AccountAbility AA 1000 Stakeholder Engagement Standard Leading Practice Sustainable Development Program for the Mining Industry - Community Engagement and Development (Australian Government Dept. of Industry Tourism and Resources) International Association of Public Participation IAP2 Spectrum of Participation. Prospectors and Developers Association of Canada, Excellence in Social Responsibility, V1, 2009, s.1, s.2, s.4, E3 Plus Guidelines Mining Association of Canada, TSM - Aboriginal and Community Outreach Protocol and associated guidance
Issue #1 Government Involvement When will the different levels of government get more involved in supporting the mining companies operating in Ontario? For example; many companies feel that government can make a positive contribution to aboriginal negotiations by getting more involved. The common feeling is that Aboriginal groups do not negotiate in good faith and simply want to maximize compensation.
Issue #2 Jurisdictional Differences Why is this going on in Ontario when all of the other provinces are encouraging the mining industry to operate? Can we expect similar changes in other Provinces and Territories?
Issue #3 Inconsistencies In Ontario, exploration projects/plans have to be approved by Aboriginal groups before drilling can begin. Aboriginal groups demand compensation for this (5K for hole to be drilled). Federal law clearly indicates that it is illegal to accept money, so shouldn t this trump the provincial law? Elsewhere this would be frowned upon, but in Ontario it seems to be encouraged. What is the government going to do about this conflict?
Issue #4 Time for Approvals In the past the government has talked about encouraging more productivity and less red tape, but it seems that the changes will require more time to gain approval for exploration. What can be done, if anything, to minimize the time spent waiting and maximize productivity.
Issue #5 Harmonization Since proposed exploration planning and permitting requirements in the Mining Act are not expected to directly interact with changes to CEAA, it is unclear if consultation under the Mining Act will count under the new CEAA regime. Won t this potentially lengthen the Aboriginal consultation and environmental assessment processes?
Issue #6 Cost of Doing Business While The Act was designed to address some valid complaints from First Nations Communities, many feel the new requirements and corresponding repercussions have gone to the point of discouraging exploration activity in Ontario. Why would I stay in Ontario if I can move to another country or Canadian jurisdiction with less onerous requirements and a lower cost of doing business?
ComplyTrack for Mining and Exploration
ComplyTrack: Risk Assessment
ComplyTrack: Risk Assessment
ComplyTrack: Risk Assessment
Thank you for attending today s session! For links to today s materials and the webinar feedback survey, please follow the link below. http://connect.cch.ca/mining Act Modernization