A Collaboration with the University of Pittsburgh

Ontario Court of Appeal ruling signals need for mining law reform

Anna Baggio [Director, Conservation Land Use Planning, CPAWS Wildlands League]: "The fact that Ontario's antiquated mining legislation was cited as part of problem at the heart of Ardoch Algonquins case is significant. It reinforces, for me, the need for a massive overhaul of Ontario's Mining Act including the "free entry system." It also reinforces for me the need to bring mining legislation in line with modern society's values and expectations before more conflicts erupt. As many of you are aware, mining trumps all other land uses in Ontario and Aboriginal communities and landowners do not have the right to say NO to mineral exploration and mining projects, nor do they even have a say in the imposition of conditions on mining on their lands or rights of participation in an environmental assessment process which is currently non-existent for mining in Ontario. Together with the Aroch Algonquins, people of Kitchenuhmaykoosib Inninuwug, social justice, union, faith and other environmental groups, we fought and will continue to fight for these rights.

I am relieved that the Court of Appeal referenced the unique systemic or background factors at play in the case. In addition to the ongoing Algonquin land claim negotiations and antiquated Mining Act, the length of the sentences were deemed "too harsh" and "more severe" than sentences imposed in other protest cases for first time offenders. MacPherson J. A. also noted that the sentencing pitted the community against the justice system. "That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture's sense of justice and this First Nations's sense of justice," he wrote. The message between the lines of the Court of Appeal's decision is that the Mining Act and Ontario's actions are unconstitutional for a failure to address First Nations' rights.

Since Ontario regulation treats mining as the best and highest end use of public land in Ontario, ecological values and concerns, human health concerns, and Aboriginal rights are often downplayed and ignored. It is absolutely vital that Ontario replaces its "free entry system" with a permitting system that protects ecosystems and communities, and meets its constitutional obligations to Aboriginal Peoples before mineral tenure is handed out. It is in the public interest and I hope the government does this quickly.

The Ontario government has promised to "review" the Mining Act but has not yet released the terms of reference or scope for the review. We cannot be sure they've heeded the guidance from the Ontario Court of Appeal until we see the terms of reference and scope of the review.

I sat in court and listened to Ontario argue for the antiquated Mining Act to be upheld. This indicates to me the size of the task ahead of us. Now that we all have the judicial guidance of the Ontario Court of Appeal in addition to the over 20 years of jurisprudence of the Supreme Court of Canada, it's time for Ontario to get on with dusting off and reforming its 135 year old mining legislation."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

About Professional Commentary

Professional Commentary is JURIST's platform for newsmakers, activists and legal experts to comment on national and international legal developments.

Hotline welcomes submissions, inquiries and comments at professionalcommentary@jurist.org.

© Copyright JURIST Legal News and Research Services, Inc., 2013.