New mining rules not fully embraced

On Nov. 1, new changes to Ontario’s Mining Act will take effect, but not everyone is on board.

One mining lawyer argues the new exploration requirements will create additional financial burdens that could be challenging to junior mining companies.

“The new legislation, which imposes earlier milestones for the duties to consult, means that even at an early exploration phase you have to start thinking of your whole plan,” says Gary Litwack, counsel at McCarthy Tétrault LLP.

“In the context of a junior miner, their preference is to put every dollar they have into the ground. When they’re just trying to figure out if they have a potential economic project or not, to at that point be diverting a lot of money which could be used in terms of delineating the asset and figuring out what the resources are — that’s going to be particularly difficult for a junior mining company.”

The amendments to the Mining Act include:

• New requirements for notifying private landowners and consulting with aboriginal communities potentially affected by proposed exploration activities.
• New tools to help protect sites of aboriginal cultural significance.
• An awareness program for prospectors about the Mining Act changes.
• More ways to keep mining claims in good standing.
• New early exploration requirements to help minimize the impact on the environment.

The changes follow a decision by the Ontario Superior Court in Wahgoshig First Nation v. Solid Gold Resources Corp. on Sept. 4 to allow an appeal of an interim injunction obtained by Wahgoshig First Nation that ordered Solid Gold to stop all activity for 120 days and consult with the province and the First Nation.

“As the present proceedings demonstrates, there is conflicting jurisprudence regarding the extent to which a third party can be required to comply with a consultation process where the Crown indicates to the third party that it views this as appropriate, notwithstanding a statutory right to proceed otherwise,” wrote Superior Court Justice Herman Wilton-Siegel.

The changes to the Mining Act further address the issue of the duty to consult.

Thomas Isaac, a partner who leads the aboriginal law group with McCarthys in Vancouver, told Canadian Lawyer InHouse that Ontario has historically been a challenging jurisdiction for mineral exploration and knowing the rules of the game.

“Knowing as an applicant what the requirements are to successfully get an exploration permit there is certainly a question in Ontario when it comes to knowing what those rules are,” he says. “It’s probably the most challenging jurisdiction in the country in terms of understanding the rules of exploration and regulatory requirements vis-a-vis aboriginal issues, and that’s not good for anyone.”

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