Mining Industry-Aboroginal Engagement Pursuant to the New Ontario Mining Act Rules: A Preliminary Examination of Potential Impacts

At both the international and country level, the issue of how the mining sector and indigenous populations should engage on issues of mutual interest or concern has emerged as one of central importance and controversy; involving the mining industry, Aboriginal communities, governments, the courts, and other stakeholders. At its heart, stakeholder engagement is an ethical issue, although it manifests itself in international instruments, domestic laws, industry guidance and agreements. At the international level, the concept of ?free, prior and informed consent? (FPIC), while not subject to widespread agreement on the finer details of evolving definitions, seems to be emerging as an increasingly recognized engagement norm. Within Canada, through a series of decisions, the Supreme Court of Canada (SCC) has articulated a fiduciary obligation of the Crown to consult with and accommodate impacted Aboriginal groups on resource management issues. Provincial governments have been variously attempting to adjust their resource management regimes to stay in alignment with SCC and lower court decisions. Mining sector organizations, working with First Nations partners, have developed agreements to work together for mutual benefit. At the individual mine and community level, there have been instances of constructive engagement, as well situations of physical resistance and legal challenges. The purpose of this paper is to examine the potential impact of new rules under the Ontario Mining Act introduced in 2012 and taking full effect in 2013, which amongst other procedural specifications, addresses the issue of mining industry-Aboriginal consultation in exploration and development activities. Leading up to the passage of the regulations, representatives from some junior mineral exploration companies have been highly critical of the new rules. Similarly, there have been a range of responses to the new rules from some in the First Nations community. The paper will review the regulation in terms of its apparent alignment with SCC decisions and the international norm, compare the regulations with existing mining sector organization guidance documents, and it will draw on the stated perspectives and commentaries of First Nations communities, mining firms, governments, nongovernmental organizations, and others. Building on the foregoing, the paper will provide a preliminary analysis of the perspectives and potential impacts of the new regulation on various stakeholders, and on that basis, possible avenues for further consideration will be suggested.