November 21, 2008

Fighting Free Entry

Ending mining’s privileged access to land

by Joan Kuyek

The Dominion - http://www.dominionpaper.ca

The Ontario Court of Appeal has called the Mining Act “a remarkably sweeping law” which allows no role for communities in deciding when and how mineral exploration will take place. Photo: Allan Cedillo Lissner

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OTTAWA, ONTARIO–In Ontario, Aboriginal organizations and landowners may be about see an end to the province’s archaic “Free Entry” system, the system that governs the allocation of mineral tenure in most jurisdictions across Canada.

Free Entry allocates rights to mineral tenure (the right to explore and potentially extract minerals on a tract of land) through claims staked on a first-come, first-served basis. It guarantees the claim-holder the exclusive right to develop a mine on the land, if economically viable minerals are found.

Free Entry applies to all Crown lands, most of which are First Nations traditional territory. It also applies to private properties, because mineral rights belong to the Crown, not to the surface-rights holder.

Canada is one of the few countries with this system of mineral tenure. In December 2007, the Environmental Commissioner of Ontario stated, “This century-old system continues to rely on principles that are no longer reflective of modern planning or resource management.”

The Ontario Court of Appeal has called the Mining Act “a remarkably sweeping law,” which allows no role for communities in deciding when and how mineral exploration will take place.

In British Columbia, mineral claims can be staked online, with the click of a mouse from anywhere in the world.

A number of Supreme Court decisions under Section 35 of the Constitution, which recognizes existing Aboriginal treaty rights, reinforce the right to meaningful consultation and accommodation of Aboriginal interests. The Mining Act is in direct conflict with Section 35.

Mineral staking entails the creation of a third-party interest on lands of Aboriginal use and occupation. First Nations are demanding to be consulted and accommodated before claims are staked.

They insist that they need to evaluate the potential effects mining and mineral exploration are likely to have on other uses of the land before they allow it to go ahead. For this consultation to be meaningful, it has to acknowledge the right of the Aboriginal government to say, “No.”

In November 2005, an official press release from the Nishnawbe Aski Nation (NAN, which represents 49 First Nations in Ontario’s North), stated:

“We are facing a multitude of First Nation grievances triggered by mining exploration that could at any time lead to an explosive conflict. A number of NAN First Nations have declared moratoriums on mining exploration and development. The immovable object of mining company shareholders and Mining Act assessment requirements will one day meet the irresistible force of Treaty rights with predictable consequences. At issue is the so-called Free Entry system. The ownership of the land itself is in dispute.”

Communities fight back

In British Columbia, the Takla Lake First Nation has prevented Imperial Metals' access to its exploration site on Bear Mountain for more than three months. Bear Mountain is sacred to the First Nation. Two watersheds, the Driftwood and Bear, originate on the mountain's slopes. Both are headwaters for endangered salmon runs. ”We'll protect it with all our might," councillor Victor West told The Tyee in August.

In the northwest of the province, sacred headwaters in Tahltan Territory have also been off-limits to mining exploration for more than three years, due to blockades enforced by elders in the community. There have been a number of arrests of community members, including Lillian Moyer, a great-grandmother.

In New Brunswick, landowners in Turtle Creek and Cambridge Narrows say they are experiencing increased pressure while prospecting and that many landowners are “infuriated” by uranium prospecting tags in their properties. Tracy Glynn and Craig Johnson, both New Brunswick residents, wrote in the Times & Transcript, “This represents a violation of their property and their rights as landowners in the province – these New Brunswick citizens are perfectly justified in raising concerns over the implications of these tags for the future of their land.”

They have been supported by New Brunswick First Nations in their demands for change.

In Quebec, a new coalition, Pour que le Québec Ait Meilleure Mine (a play on words, as "mine" also means "appearance"), is advocating for an end to "Free Mining," which allows for universal access and first-come, first-served mineral licensing. The coalition is also pushing for a number of changes to the Mining Act, including improved closure bonding, which would require companies to guarantee funds to pay for mine closure in order to prevent abandonment.

Similarly, property owners and First Nations in Ontario have been demanding changes to the Mining Act. In spring 2008, seven leaders from the Ardoch Algonquin and the Kitchenuhmaykoosib Inninuwug (KI) First Nations were jailed for contempt when they refused to acknowledge a court injunction to open their traditional lands to mineral exploration.

There was a huge public mobilization and outcry, and the leaders were released in May. However, the Ardochs still have a multi-million-dollar default judgment against them from the mining company, the company has asked leave to appeal the release of Bob Lovelace to the Supreme Court, and the trial court is still seeking costs from that hearing from the non-status community.

By July 14, the Ontario Premier was forced to address the reform of the Mining Act. In a news release, he stated:

“Our plan will ensure that mining potential across the province is developed in a sustainable way that benefits and respects communities. We will ensure that our mining industry remains strong - but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private land owners and Aboriginal communities. The Ontario government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.”

Consultations on the Ontario changes continue, although many First Nations argue that the process is moving too fast and does not provide them with time or resources for the communities to study the proposed reforms.

As provincial governments are feeling more and more pressure to reform how mining is carried out across the country, non-governmental organizations are beginning to lead the way.

A report prepared by Eco-Justice and the Canadian Institute of Environmental Law and Policy was released in early October. Endorsed by a collaboration of many well-respected NGOs, the report provides a model for the changes, including agreement from First Nations before staking can take place, a permitting system and environmental assessment for each stage of mining, and an end to self-assurance for mine closure. The report states:

“As a world leader in mining production and exports, Ontario’s mining industry should also be a world leader in promoting and engaging in sustainable, responsible mining practices. The Ontario government must play a lead role in ensuring that such sustainable, responsible practices are adopted, especially given that Ontario’s mining laws and policies are used as a model for developing nations where Canadian mining companies operate.”

Joan Newman Kuyek is a writer and researcher living in Ottawa, and is the former National Coordinator of MiningWatch Canada.


The free entry system is based upon the following premises:

• Mining prevails over private property interests.
• Mining is the highest and best use of Crown lands.
• All Crown lands are open for staking and mineral exploration unless they are expressly excluded or withdrawn by statute.
• Mining prevails over Aboriginal land rights.
• Mineral tenures are appropriately granted on a "first come, first served" basis.
• Mineral potential is so valuable that it warrants leaving the staked area essentially unregulated and potentially unusable for other resource interests.

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