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Anishinabek Nation calls for direct First Nation consultation on new mining act regulations

Thursday May 10, 2012

The Anishinabek Nation is calling out the Ontario government over phase 2 of the new Ontario mining act, saying the government is pushing through changes without directly consulting First Nations.

Ontario had set a May 1 deadline for comments on new regulatory proposals under phase 2 of the mining act. The regulations were posted online on March 12, with stakeholders asked to submit comments and concerns electronically or in written form.

The Anishinabek Nation refused to comment through the Environmental Registry, stating that the current public consultation process does not meet the standards on the Crown’s duty to consult and accommodate set by Supreme Court decisions.

“More than ever, the level of dialogue with First Nations is critical,” said Lake Huron Regional Grand Chief Isadore Day in a press release. “Our government to government discussions must match the dire need for clear and fair consultation with our First Nations and promote and clear and fair treaty right to sharing in the resource-based economy.”

Nishnawbe Aski Nation (NAN) and the Grand Council of Treaty #3 also did not respond to the request for comments by the deadline, although neither organization provided its reasons for not responding.

Phase 2 of the mining act deals with a number of issues of importance to First Nations. The new regulations require prospectors to inform First Nations before doing any exploration work on traditional lands. First Nations will also be provided the opportunity to provide input on projects before any drilling work can proceed.

The government also plans to conduct an awareness program on Aboriginal consultation to inform industry what needs to be done, and establish a dispute resolution process for when consultation between industry and First Nations does not result in agreement.

Ontario’s director, Mining Act Modernization Secretariat, Robert Merwin, said that much of what is being proposed in phase 2 encourages industry and First Nations to work together on consultation and accommodation.

“The whole process is based upon a system of mutual respect and goodwill,” Merwin said. “That is the basis of what we’re proposing. We think a conversation will work between First Nations and industry.”

Day, however, said the Anishinabek Nation believes the government has to retain its role to consult and accommodate with First Nations on development decisions.

“It is incumbent upon the Ministry to ensure that assigning a directive to developers to consult First Nations should in no way erode our rights at the government table,” Day said. “The province must maintain its role as a treaty partner and accommodate a process that is consistent to Anishinabek goals and values.”

Ramsay Hart of Mining Watch Canada said that while many aspects of the new mining act are positive, the government is still not meeting its duty to consult with First Nations.

“I think they are setting themselves up for future problems. It’s disappointing to see that the government has not learned the lesson yet,” Hart said, adding that the new regulations fail to provide clarity on how consultation with First Nations on mining is going to work.

As for getting First Nations input into phase 2 of the mining act, Merwin said that the government respects the Anishinabek Nation’s decision not to respond by the deadline. He said ongoing efforts to consult with First Nations on the new regulations will continue, and that the government will still take into account any comments from First Nations even though the deadline has passed.

Merwin noted that phase 2 was originally planned to be implemented last summer, but the dates have been pushed back to allow for more consultation and input.

“We want to take the time to get it right,” Merwin said. “We think in total we’ve taken significant strides to listen to comments and address concerns.”

As of the deadline, 145 comments had been received, mostly from industry but also some individual First Nations, Merwin said.

The comments and feedback gathered through the process will be included in draft resolutions on the mining act expected to be presented to the government later this year.

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