Status: Royal Assent Received as of May 10, 2017

Summary: This Act impacts resource extraction from above ground (aggregates) and below ground (mining). Even though Bill 39 amends both the Aggregate Resources Act and the Mining Modernization Act at the same time, public consultations were completed concerning both of these acts independently. For First Nations, the key change is in the legislative requirement to consult with locally impacted First Nations regardless of whether the project takes place on private land.

This Bill sets out a number of amendments to both the Aggregate Resources Act and the Mining Act. This Act adds to the regulatory power that the Minister holds, and it clarifies the procedure in various possible scenarios. For example, the Act clarifies what happens when a permit-holder dies (the minister revokes or transfers the permit). It also identifies areas of crown land where Aggregate Permits cannot be issuedThe Standing Committee on General Government outlined recommendations for improving the Aggregate Resources Act in 2013, and engagement sessions were carried out the following year, including with Indigenous communities. Ontario further consulted on proposals developed with community input in 2015 using a detailed policy proposal document. This became the consultative basis for amendments to the Aggregate Resources Act.

The amendments to the Mining Act include the introduction of a new electronic mining lands administration system, new definitions of key terms, and other regulatory information. The Mining Act already included direction regarding First Nation consultation in Section 78, and supported by a Ministry and Northern Development operational policy on consultation.

Impact: The old version of the Aggregate Resources Act included no reference to consultation with Indigenous peoples. Therefore, without amending the act the province was responsible to consult with First Nations if a project was completed on Crown land, but private land could proceed without consulting the local Indigenous peoples. In other words, consultation with Indigenous peoples in projects completed on private land was “encouraged but not required.”

This has been addressed in subsection 3.1 of the new Act. It reads: “For greater certainty, the Minister will consider whether adequate consultation with Aboriginal communities has been carried out before exercising any power under this Act relating to licenses or permits that has the potential to adversely affect established or credibly asserted Aboriginal or treaty rights.”

This legislative move is an important step towards resource revenue sharing arrangements that COO has been working towards, but it is imperfect. The key issue with the Act is that the Minister is responsible to determine whether adequate consultation was completed, not the impacted First Nations. Furthermore, while the legislation creates avenues for more equitable resource revenue sharing, the need for this is not written into the act. Therefore, the new legislation is not a panacea, but rather a tool that First Nations can use to more effectively ensure their interests are represented and heard in resource extraction projects.

Full text of the reading can be found here.

Full text of the Aggregate Resources Act (R.S.0., 1990, c.A.8) can be found here.

Full text of the Mining Act (R.S.O. 1990, c. M.14) can be found here.