May 2009

Linked to this page is a blackline of proposed amendments to Ontario's Mining Act as set forth in Bill 173, introduced by First Reading on April 30, 2009. The blackline document was prepared for convenience and ease of comparing the amendments of Bill 173 to the existing Mining Act and may contain errors or inconsistencies with the actual Bill 173. The blackline is not an official document of the Government of Ontario and no reliance should be placed on this document.

The goal of the amendments is to "modernize" the historic Mining Act. In its speech to the Legislature, the Government stated that the amendments will promote mineral exploration and development in Ontario in a way that is more respectful of Aboriginal communities and private land holders. The Government has promised the amendments will provide clarity and certainty to the minerals industry. However, members of Fasken Martineau's Global Mining and Aboriginal Practice Groups have made a preliminary review of the proposed amendments and are concerned with several aspects of the proposed legislation:

1. The amount of legislative detail left unresolved by Bill 173 and the scope of the proposed regulations may, in fact, create uncertainty. The following are examples of matters to be prescribed and/or defined by future regulations:

• The terms "community based land use plan" and "Far North" are used extensively in the Bill but have not yet been defined (No mining claim will allowed to be staked in the Far North if a community based land use plan has designated the lands for a use inconsistent with mineral exploration and development. The Minister will also have broad powers to withdraw lands in the Far North);
• Aboriginal consultation requirements and, more particularly, the Crown's role in this legislated consultation;
• The extent and nature of exploration activity that requires an exploration permit;
• What constitutes a site of "Aboriginal cultural significance", which is a definition of some significance in that it can form the basis of a Ministerial withdrawal of land; and
• The requirements and mechanics of the newly proposed dispute resolution process, and the appropriate route of appeal.

2. Mining lands beneath private surface rights will be withdrawn from staking in Southern Ontario. In Northern Ontario a surface rights owner can apply to have mining rights beneath such lands withdrawn. In making that decision the Minister shall consider the mineral potential of the lands and any other criteria that may be prescribed. The Minister's decision appears to be final.

3. The rights of unpatented claim holders will be diminished. They will no longer have the right to enter upon or use the mining claim unless there is compliance with the new Exploration Plans and Permitting provisions. It should be noted that these new permitting provisions will also apply to leasehold lands. The Minister will also have broad powers to impose restrictions on a claim holder's use of the surface rights on a mining claim for various reasons (some of which are to be prescribed in future). The Minister's order is not appealable.

4. Exploration Plans and Permits. These new provisions appear to be required for mining claims, leases and licences of occupation, whether or not private surface rights or aboriginal communities will be impacted. It adds a new level of bureaucracy which prevents assessment work from being carried out until an exploration permit has been issued by newly appointed officers (Directors of Exploration). There is no apparent right to appeal the decision of a Director of Exploration and there are new offence provisions and penalties for not complying with these provisions.

5. The Bill demonstrates the Government's intention to require that consultation with Aboriginal communities is done before authorizations and permits can be obtained. Aboriginal consultation will become a necessary component of the newly legislated Exploration Plan and a pre-requisite for obtaining an Exploration Permit. It is not clear the manner in which the Crown will discharge its consultation obligation given the apparent delegation to proponents and because certain aspects are left to regulation. The provisions also raise questions about the delays, the potential costs and other implications of discharge of the duty and the mechanics and practical implications of the proposed dispute resolution process.

6. The offence and penalty provisions of the Act will be greatly enhanced.

Fasken Martineau is planning an in-house seminar for concerned industry representatives in order to have an open forum to discuss some of these concerns. Please continue to check this link for updates. A notice will be sent to our distribution list in advance. If you are interested in additional information please send your contact particulars to Christine Rocheleau at .