Law Times

Page 10 March 25, 2013 �� Law Times ��� FOCUS New law requiring aboriginal consultation takes effect April 1 believes that despite the appeal was moot and new legislation, there chose not to hear it. will still be disputes beThe new legislation cause the act doesn���t go does clarify that third far enough in stipulatparties have a duty to ing what the content consult. of consultation and acKate Kempton, who commodation has to be. was counsel for the ���I guess we���ll have to Wahgoshig First Nation, see what the Crown���s notes that the new regureaction is to the dislations under the act will putes, whatever form trigger the duty to conthey might take, and sult and accommodate are they prepared to go First Nations affected further in fleshing out by mineral exploration the regulations.��� in virtually all cases. She This is important as says the new legislation Costs will be a big hurdle for First Nations the government has to essentially requires every facing consultations, says Kate Kempton. determine whether a proponent to either file an exploration plan, which should trigger consultation has taken place. Kempton says the legislation just says the duty to consult, or apply for an exploration permit, which will trigger the duty the proponent has to engage the First to consult and accommodate. The explo- Nation and indicate to the Crown what ration company will have to go out and it has done to consult with it and meet consult with First Nations to create a con- its concerns. ���There will no doubt be proponents sultation record that will become part of its who think that picking up the phone and permit application. According to Smitheman, who was making one phone call or sending one counsel for Solid Gold Resources on the letter letting the First Nation know what appeal, ���under the new regime, the direc- they plan to do is enough. I hope not but tor . . . will not issue a permit until he or she I expect that there will be some out there is satisfied that there has been consultation who think that���s enough, whereas I exby the third parties with the First Nations. pect no First Nation would think that���s So in essence and in effect, what happens enough. There has to be some interactive is that duty to consult that���s been triggered engagement or back and forth and the by the conduct of issuing a licence has been First Nation has to be informed about what its values and sites are and connecdelegated to third-party proponents.��� Kempton says the new Mining Act re- tions to the land and then has to be ingime is certainly better than it was but sug- formed about what the impacts of the exgests it���s not going to solve all problems. She ploration might be on that and then those BY SIOBHAN McCLELLAND For Law Times C CUTTING EDGE ��� TIMELY ��� INTERACTIVE hanges to the Mining Act in Ontario will require companies to consult First Nations on any mineral exploration claims before the work begins. As of April 1, the act will require third parties wishing to stake mining claims to effectively take over the Crown���s duty to consult with First Nations. But the lack of guidance on what they must do as part of that duty to consult leaves uncertainty for both First Nations and the mining companies. ���What the mining industry needs now more than anything is some certainty,��� says Neal Smitheman, a partner at Fasken Martineau DuMoulin LLP. The Divisional Court recently had an opportunity to clarify the duty to consult on Jan. 25, 2013, in ruling on the appeal in Wahgoshig First Nation v. Solid Gold Resources Corp. The case dealt with an appeal of an interim injunction prohibiting the defendant mining company from engaging in exploration activities on land the plaintiff had claims to. The court granted leave to appeal with the leave judge noting that, in the absence of legislation, ���it is important that the court clarify the respective obligations of the Crown and mining exploration companies operating in this province toward First Nations whose treaty rights or aboriginal [rights] might be adversely affected by exploration activities.��� However, given that amendments to the Mining Act would become effective in April, the Divisional Court decided the concerns need to be addressed.��� Kempton also notes the new legislation doesn���t stipulate who has to pay the cost of the consultation process. ���A lot of First Nations unfortunately don���t have the internal resources or expertise to understand the scientific, environmental implications of things or legal implications of things, so they have to hire people to inform them of what the effect of the exploration might be and to do their due diligence. Who���s going to pay for that?��� She goes on to note that the regulations don���t stipulate that. ���They don���t state, for instance, that certain archeological or land-use and occupancy studies have to be done where there���s any evidence of ancient or even more recent historical sites or values in the land. There���s no requirement in the regulation, in black and white, for those things to happen.��� Smitheman is concerned about the effect of the new legislation on junior mining exploration companies. ���The difficulty that we���re going to have is with junior exploration companies trying to reach some sort of accommodation with First Nations that is affordable. What has happened is that some mid-sized or mining companies who have lots of resources and funding available can enter into agreements that are far too rich for junior exploration companies. But unfortunately, that sort of sets the bar. I think the expectations sometimes of the First Nations vis-a-vis junior exploration companies is simply too high. You just cannot expect to get the same impact benefit agreement or response from junior exploration companies as you can with mining companies.��� LT THE ENERGY SECTOR: WHERE IT���S HAPPENING Political winds. The regulatory climate. Economic cycles. Change, to be sure continues to typify the energy industry today. But identifying which changes will blow over quickly and forecasting those that will more likely have a long term effect is what this program will address COURSE HIGHLIGHTS COURSE LEADER CHAIR AND COURSE LEADER ��� ��� ��� ��� Linda Bertoldi, Borden Ladner Gervais LLP Shane Freitag, Borden Ladner Gervais LLP GUEST SPEAKERS Mark Rodger, Borden Ladner Gervais LLP Adam Chamberlain, Borden Ladner Gervais LLP Bruce Fowler, Borden Ladner Gervais LLP Renewable energy: the latest developments Renewable energy: current ���nancing issues for lenders and borrowers Transmission & Distribution Game Changers ��� Canadian energy developments REGISTER BEFORE MAY 10 AND SAVE $300! Toronto, June 13, 2013 For more information or to register, please contact Lexpert�� Events at 1-877-298-5868 or e-mail: register@lexpert.ca Webcast also available! Untitled-2 1 www.lawtimesnews.com 13-03-20 11:29 AM

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