Changes to Mining Act expose cracks in Ontario's duty to consult with First Nations

A First Nation chief was sitting at his desk when he received an email from the Ministry of Mines informing him that the government was working to amend the Mining Act.

This was the first he was hearing of Bill 71.

Craig Nootchtai represents the community of Atikameksheng Anishnawbek, near Sudbury, Ont.

The email explained that, if it passes, the Building More Mines Act will bring changes to mine closure planning, to the recovery of minerals from mining waste and to staffing positions within the ministry. 

The email went on to specify that Ontario does not have a duty to consult First Nations when it develops or changes laws, citing decisions made in the Supreme Court of Canada.

That's something that doesn't sit well with Nootchtai.

"I believe that's wrong," he said. "[Ontario] has a duty to consult. These changes will have a direct impact on our community and the activity that happens in our territory," he said.

When proposing Bill 71, Mines Minister George Pirie explained that the industry-friendly amendments "aim to reduce administrative burden, clarify requirements for rehabilitation and create regulatory efficiencies." 

Pirie has repeatedly insisted that the changes don't prevent Ontario from meeting its duty to consult with Indigenous communities.

But many Ontario First Nation chiefs disagree. 

The Matawa Chiefs Council, for instance, says the Building More Mines Act "avoids crown responsibilities to First Nations across the North." 

They represent about 10,000 Ojibway and Cree people in the northwest of the province.

"Is he just going to rubber stamp everything?"

Under the current law, the Director of Mines and the Director of Rehabilitation ultimately decide whether indigenous communities have been adequately consulted on a mining project. 

Bill 71 would change that. 

The amendments would remove these roles and vest their former power in the Minister of Mines.

"I don't understand how [Pirie] expects to do all that work," said Nootchtai. 

"Is he just going to rubber stamp everything? I think so." 

Nootchtai worries the bill paves the way for weaker consultation standards going forward, especially for sites already disturbed or contaminated by mining activity.

Ontario changes the standard for recovery permits

Another change introduced by Bill 71 concerns the recovery of minerals from mine tailings and waste. 

This is a type of permit the government launched in 2021 to attract businesses to these areas. 

Currently mining companies have to demonstrate that their project will "improve" the land from a public health or environmental perspective to obtain a recovery permit.

But the Building More Mines Act changes the wording around this requirement.

Instead of "improving" the land, Bill 71 suggests mining proponents can leave it in a state that is "comparable to or better than" it was before the recovery activity. 

Ontario says this "standard is clearer and simpler." 

It also believes the change makes it "less onerous for projects on lands that are already in a 'brownfield' or heavily disrupted condition."

Sudbury MPP Jamie West is part of the parliamentary committee debating the bill. 

He is uncomfortable with the expression "comparable to or better than."

"It becomes one of those words lawyers can argue about," he says.

Operating in areas that have already been mined

Some First Nations believe Bill 71 effectively lowers the standard for activities in areas already rife with historical grievances. For instance, Ontario is still working to rehabilitate the Long Lake Gold Property south of Sudbury. 

That project produced 200,000 tonnes of uncontained toxic tailings between 1908 and 1937 that have since leaked into the environment. 

We're never going to have reasonable access to these lands again, and they're talking about mining that.- Craig Nootchtai, chief of Atikameksheng Anishnawbek

A third of these tailings are on the lands of the Atikameksheng Anishnawbek.

The idea that a business could profit from them without having to improve the land angers Nootchtai. 

"We're never going to have reasonable access to these lands again, and they're talking about mining that." 

He worries that the degree of consultation required for projects on already contaminated land is lower than for new projects.

"The only time we have any teeth is when there's a new mine being built," said Nootchtai.

The nine Matawa member First Nations are also concerned about recovery permits. 

They believe this new mechanism will allow mining proponents to avoid "the duty to consult and accommodate" and to "ignore historic grievances." 

What does adequate consultation mean?

The proposed amendments in Bill 71 make no mention of the Duty to Consult. 

That is the most important issue with the Bill, according to Jamie West. "We really wanted to enshrine the duty to consult within the bill."

"The reality is if it's not spelled out in legislation, there are some unscrupulous companies who will use whatever they can to not meet the letter of the law," said West.

However the amendments proposed by West and other colleagues were voted down.

In an email to CBC News, the Ministry of Mines says it assessed and will continue to assess the potential impact of its proposed legislative changes on Indigenous communities. 

First Nation and Métis groups were not consulted in the context of Bill 71, but the Ministry of Mines says it engaged with these communities by hosting information sessions. 

It also identified ways in which they could provide feedback.

For example, the chief of Atikameksheng Anishnawbek was given seven minutes to present his concerns to the Standing Committee on the Interior in early April. 

That's the committee in charge of collecting feedback for lawmakers as the bill progresses through the legislature. But on April 19, the bill passed from Second to Third reading with only one amendment. 

Proof, according to Nootchtai, that his presentation to the Standing Committee did not make much of a difference. 

West says the third reading of the bill could happen next week. He says the Building More Mines Act could become law before summer starts.