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Canadian Mining Regulations

Petition: No. 6

Issue(s): Aboriginal affairs, governance, and natural resources

Petitioner(s): Canadian Arctic Resources Committee

Date Received: 15 April 1997

Status: Completed

Summary: The petition presents a critique of the current federal system for disposing of Crown mineral rights in the Northwest Territories (NWT) through the Canadian Mining Regulations. According to the petitioner, the regulations establish an open-access or free-entry mining regime. Therefore, all Crown lands in the NWT are open for mineral operations unless they are specifically withdrawn. The petitioner suggested that the current approach is inconsistent with sustainable development as defined in the Auditor General Act

Federal Departments Responsible for Reply: Indian and Northern Affairs Canada

Petition

April 15, 1997

L. Denis Desautels
Auditor General of Canada
240 Sparks Street
Ottawa, ON
K1A 0G6

Dear Mr. Desautels

Please consider this letter as a petition pursuant to section 21 of the Auditor General Act. We are residents of Canada and are therefore eligible to make such a request. The substance of our petition is that the system of disposing of Crown mineral rights in the Northwest Territories (N.W.T.) is entirely inconsistent with the definition of sustainable development contained in the Auditor General Act. Furthermore, it is our contention that there is no evidence that the Department of Indian Affairs and Northern Development (DIAND) is making any progress towards adapting the current regime so that it is consistent with the principles of sustainable development.

Particulars of Petition

The current regime for granting third parties rights to Crown owned minerals in the N.W.T. is found in the Canada Mining Regulations (CMRs). These regulations are administered by the Department of Indian Affairs and Northern Development (DIAND). DIAND is a Category 1 Department.

The CMRs establish what is known as an open access or free-entry mining regime. Under an open access regime all Crown lands are open for mineral operations unless they are specifically withdrawn. There is no prior planning to establish which tracts of Crown land are particularly sensitive, or serve as critical habitat for endangered species, or are valued ecosystem components. There is no requirement that government consult Aboriginal peoples or other land users (i.e. outfitters, forestry operators) prior to opening lands for mineral exploration.

More specifically, we contend that the Department's continuing failure to launch a comprehensive review of the CMRs regime shows that it is simply ignoring the need to make progress towards achieving sustainable development as required by s.21.1 of your Act. Here are the particulars of our contentions following the list of factors identified in s.21.1:

(a) integration of the environment and the economy

There is no evidence whatsoever that environmental factors are integrated in the design of the CMRs. On the contrary, the CMRs are informed by a development ethic in which resource rights are simply given away to the first comer.

(b) protecting the health of Canadians

Again, there is no evidence that this is a relevant consideration. The record of the Giant Mine in Yellowknife suggests that the health of Canadians is not high on the list of priorities for the Department. The free-entry system even applies to the search for and development of radioactive materials (e.g. Rayrock, Port Radium, Kiggavik) without considering the public health and related policy questions.

(c) protecting ecosystems

A free-entry system makes it impossible to take into account considerations of ecosystem health in the absence of an adequate planning mechanism designed to ensure that lands valued for reasons of ecosystem health are withdrawn from disposition or staking. This is not the case in N.W.T. where mineral staking precedes ecological planning. Although a protected areas strategy for the N.W.T. is finally being developed, its implementation including land withdrawals, may take years. The strategy is being developed as a direct result of the World Wildlife Fund application for judicial review on the BHP N.W.T. Diamonds Project public environmental review and was not initiated voluntarily by DIAND.

(d) meeting international obligations

Open access regimes, unless accompanied by the planning mechanism referred to above, make it more difficult for Canada to discharge its obligations for in-situ conservation under the Biodiversity Convention and its obligations to Aboriginal peoples under the Rio Declaration, Agenda 21, the UN Draft Declaration on the Rights of Indigenous Peoples, and s.35 of the Constitution Act, 1982.

(e) promoting equity

The application of the open access regime to areas of unsettled land claims in the N.W.T. promotes inequity insofar as it facilitates the systematic undermining of the local economy and allows development before the Aboriginal inhabitants are in a position to benefit from that development. DIAND makes no attempt to balance, and is in fact prevented from balancing, the public interest in rational and ecologically sustainable resource management versus the private interests that are established once a mineral claim has been staked and recorded.

(f) an integrated approach that balances costs

Again there is no evidence that an open access regime is capable of balancing costs. All land is open to staking unless withdrawn. There is no pre-assessment of mineral values and ecological values. The land is simply open for exploration and potentially production. Furthermore, the very system of locating and maintaining claims encourage waste of resources and environmental practices that are not sustainable. Finally, encouraging third parties to obtain mineral rights prior to land use planning or designation of conservation lands may leave the Crown exposed to compensating those parties when lands may need to be withdrawn (see Tener case).

(g) preventing pollution

There is no evidence that pollution is a relevant consideration in the CMRs. The requirement for representation work to maintain claims actually encourage activities that result in pollution of air, land and/or water. There are no provisions to reward activities that are less damaging to the environment (e.g. map staking, surveys without trenching or ground work).

(h) respect for nature and the needs of future generations

There is no evidence that a free-entry system balances the needs of nature. Such a system is based on a developmental ethic rather than an ecological ethic. It also assume that all lands should be open for development now. In such a system it is hard to plan development so that it occurs in a staged and managed manner that benefits the residents of the region and avoids a boom and bust economy.

There is absolutely no evidence that the Department is proactively developing policy to adapt the current regime so that it is consistent with the principles of sustainable development.

The record shows that the Department is failing to make progress towards the goal of sustainable development in relation to the minerals regime of the N.W.T. Indeed, the Department is failing to even ask itself the right questions. The Department will tell you that it has launched a review of the CMRs and that in particular it has initiated a review of reclamation policies and the royalty regime. We are aware of these developments but we note that this is a piece-meal approach that does not address the principles that underlie an open access regime. Furthermore, we note that in neither review does the Department so much as mention the term sustainable development. We have also reviewed the Department's discussion paper on its Sustainable Development Strategy and note that it does not propose to examine the principles underlying its current range of resource statutes to see if they are consistent with the principles of sustainable development. We suggested that this is a key requirement at a workshop held in Yellowknife in December 1996.

In closing we note that we do not argue in this petition that mining is per se inconsistent with the principles of sustainable development. Instead, it is simply our position that it is possible to design a minerals disposition and regulatory regime that is sensitive to principles of sustainable development and ecosystem health. To this point DIAND has made no attempt to do so.

Thank you for your time and help. We look forward to the Department's response to this petition and suggest that this is a topic that warrants your immediate attention. We can be contacted at (403) 873-4715 should you require any clarification.

Sincerely,

[Original signed by Kevin O'Reilly]

Kevin O'Reilly
Research Director
Nigel D. Bankes
Vice-Chairperson

Canadian Arctic Resources Committee
#3-4807 49th St.
Yellowknife, NT
X1A 3T5

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Minister's Response: Indian and Northern Affairs Canada

The Main Acts and Regulations Governing the Mining Sequence in the Northwest Terrirories

August 27, 1997

Mr. Kevin O'Reilly *
Research Director
Canadian Arctic Resources Committee
3 - 4807 49th Street
Yellowknife NT
X1A 3T5

Mr. Nigel D. Bankes *
Vice-Chairperson
Canadian Arctic Resources Committee
1 Nicholas Street, Suite 100
Ottawa ON
K1N 7B7

[Dear Mr. O'Reilly and Mr. Bankes]:

I am writing with regard to your co-signed letter of petition, dated April 15, 1997, to the Auditor General of Canada, which was subsequently passed to my predecessor, the Honourable Ronald A. Irwin, for a response pursuant to section 22 of the Auditor General Act. My officials have reviewed your petition and have prepared a response, which is enclosed.

I have carefully read the analysis of my officials and the detailed responses to the issues raised in your petition. I fully agree with their conclusions and would like to assure you that a comprehensive review of the Canada Mining Regulations will be forthcoming after the current agenda for changes, mandated by the settlement of land claims, is completed. In particular, the establishment of new institutions will provide better opportunities to create modern, predictable and efficient, natural resource and environmental management practices.

The Canadian Arctic Resources Committee has a long history of diligent work analysing issues of concern to northern Canada and bringing them to public attention. I appreciate this effort and assure you that your views are taken into consideration in the work of my department.

Yours sincerely,

[Original signed by Jane Stewart, Minister of Indian Affairs and Northern Development]

Jane Stewart, P.C., M.P.

*[both individuals received the same letter from the Minister]

 

RESPONSE TO PETITION
SUBMITTED TO
THE AUDITOR GENERAL BY
MR. KEVIN O'REILLY AND MR. NIGEL D. BANKES
OFFICERS OF THE CANADIAN ARCTIC RESOURCES COMMITTEE
DATED April 15,1997

Department of Indian Affairs and Northern Development
Ottawa, Canada

INTRODUCTION

This response is made in accordance with section 22 of the Auditor General Act which provides for petitions concerning environmental matters in the context of sustainable development. A Petition received from Mr. Kevin O'Reilly and Mr. Nigel Bankes, officers of the Canadian Arctic Resources Committee (CARC), dated April 15, 1997 is chiefly concerned with how the mineral disposition regime in the Northwest Territories (N.W.T.) complies with the federal policy on sustainable development.

The response is organized in the following manner. The Background section briefly describes the context in respect to other legislation in which the Canada Mining Regulations operate in the N.W.T. The next section, Substance of the Petition, notes both the main argument made by the petitioners and the definition of sustainable development found in the Auditor General Act. This is followed by the section Response to the Substance of the Petition. In this section the response looks at how DIAND disposes of mineral rights in the N.W.T. in the context of the definition of sustainable development found in the Auditor General Act. Particulars of the Petition is the final section of the main body of the response. In it, response is made to a number of general assertions made in the Petition as well as the eight elements of sustainable development found in the Auditor General Act. The Appendix, The Main Acts and Regulations Governing the Mining Sequence in the Northwest Territories, provides support to the government's position that the mining regime in the N.W.T. is adequately regulated from beginning to end in a manner consistent with the principles of sustainable development.

BACKGROUND

The procedure for acquiring Crown mineral rights are set out in the Canada Mining Regulations made under the Territorial Lands Act. The Canada Mining Regulations do not operate in a vacuum. Activities authorized by these regulations are subject to all other federal and territorial legislation and federal policies (details provided in the Appendix). In particular, the Canada Mining Regulations neither exempts any activity from any environmental management legislation nor from compliance with sustainable development legislation or policy.

Similarly, although the eight elements listed in the Auditor General Act (for the full list, see next section) through which sustainable development may be achieved, are not mentioned in the Canada Mining Regulations themselves, they are considered when regulations are amended.

SUBSTANCE OF THE PETITION

The substance of the Petition, in the words of the petitioners, is:

  1. "The system of disposing of Crown mineral rights in the Northwest Territories (N.W.T.) is entirely inconsistent with the definition of sustainable development contained in the Auditor General Act."
  2. "Furthermore, it is our contention that there is no evidence that the Department of Indian Affairs and Northern Development (DIAND) is making any progress towards adapting the current regime so that it is consistent with the principles of sustainable development."

The definition of Sustainable Development contained in the Auditor General Act is:

"Sustainable development" means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

The Auditor General Act expands on the description of sustainable development by describing it as a continually evolving concept based on the integration of social, economic and environmental concerns. The Auditor General Act states that sustainable development may be achieved by, among other things:

    1. the integration of the environment and the economy;
    2. protecting the health of Canadians;
    3. protecting eco-systems;
    4. meeting international obligations;
    5. promoting equity;
    6. an integrated approach to planning and making decisions that takes into account the environmental and natural resource costs of different economic options and the economic costs of different environmental and natural resource options;
    7. preventing pollution; and
    8. respect for nature and the needs of future generations.

These eight methods by which sustainable development may be achieved are used as headings in the particulars of the petition.

RESPONSE TO THE SUBSTANCE OF THE PETITION

The licenced staking of mineral claims is among the least intrusive of all mining activities and causes relatively little disturbance to the land. The effects of this activity are not very different from those of many unlicenced uses of Crown land such as hunting, fishing, hiking and eco-system assessment.

Following the licenced staking of mineral claims the environmental impacts of additional exploration activities will lead to environmental screening of virtually all phases of exploration over certain minimal thresholds. A description of these processes are set out in the Appendix. This issue is many faceted and will be responded to in detail with the comments on particulars raised by the Petition.

The Auditor General Act requires all federal Ministers of Category 1 departments, as defined by the Financial Administration Act, including the Minister of DIAND, insure that a Sustainable Development Strategy is developed for their departments and tabled in Parliament by December 1997. At the same time as this process is underway, a major change is taking place to the system of resource management in the N.W.T. The settlement of land claims with First Nations and other Aboriginal groups requires new legislation. It creates new models for public government to make land use plans and to manage natural resources in a way which will guarantee participation of local residents in management decisions. The new legislation is being designed with sustainable development as one of its cornerstones.

PARTICULARS OF THE PETITION

Under the heading "Particulars of Petition" the petitioners assert that the Canada Mining Regulations provide for grants of Crown mineral rights. The term "grant" when used in relation to Crown land, normally means a grant in fee simple, which means permanent ownership of an interest in land. This has not been the practice, in nearly all of Canada, for over 50 years, and the N.W.T. is no exception. The highest level of right to land that can be acquired under the regulations is a lease. A more accurate statement of how mineral rights are disposed of under the Canada Mining Regulations is: a licenced claim staking system where only a licensee may acquire mineral rights for exploration and development. If the exploration and development are successful, a mineral lease is required to mine any economically viable minerals deposits that are found, subject to compliance with all legislation.

The petitioners state that the "The CMRs establish what is known as an open access or free-entry mining regime". This is not strictly the case. There are considered to be three elements to a free entry regime: "the right to enter lands in pursuit of Crown minerals, the right to obtain a claim, and the right to go to lease and produce". In the N.W.T., the right to enter lands in pursuit of Crown minerals is restricted by the requirement for a Prospectors' Licence under the Canada Mining Regulations. The right is further restricted, once certain threshold activities are initiated, by the requirement for a Land Use Permit. The right to obtain a claim is restricted on certain lands and finally, the right to produce is regulated and restricted by federal and territorial legislation. The petitioners further state that "Under an open access regime all Crown lands are open for mineral operations unless they are specifically withdrawn." This fails to acknowledge that, in addition to lands which may be withdrawn from time to time, certain classes of land, such as National Parks and burial sites, are not available for disposition under the Canada Mining Regulations and lands with occupied surfaces require prior approval.

The petitioners further state that "There is no requirement that government consult Aboriginal peoples or other land users (i.e. outfitters, forestry operators) prior to opening lands for mineral exploration". This statement is true insofar as no consultation is required on rights issuance; however, consultation would be done for example, if a land use permit is required. It should also be noted that, although there is no requirement, it is now the practice of DIAND to consult before issuing prospecting permits which grant exclusive rights to stake claims in specified areas.

The following description of the legislative framework under which the mining industry operates will provide a setting for how the activities described in the Appendix are regulated. The Territorial Lands Act provides for the disposition, use and protection of federal Crown lands under the administration of the Minister of DIAND. The purpose of the Canada Mining Regulations is to dispose of subsurface rights. However, a variety of other regulations exist pursuant to this Act. The Territorial Land Use Regulations govern the temporary use of the surface through the issuance of land use permits for activities such as trail construction, fuel storage use and camp facilities for exploration on Crown lands (where no surface rights have been granted). Land Use Permits issued by DIAND on Crown lands prescribe the operating conditions. The Territorial Lands Regulations dispose of surface rights where permanent structures and long term occupation of the land is requested. The surface lease also provides for exclusive use of land which, at some work sites, may be necessary for public safety. Exploration may be carried out prior to mineral rights acquisition, only by holders of a prospecting licence and, only in accordance with paragraphs 8(4)(a) and (b) of the Canada Mining Regulations:

8(4) No person other than a licensee, shall

(a)
(b)

Prospect for minerals;
make application to record a claim;

All applications for land use permits and leases are subject to an environmental screening pursuant to the Canadian Environmental Assessment Act and the Nunavut Land Claim Agreement. The screening determines if the project is likely to cause significant adverse environmental effects, taking into account appropriate mitigation measures, or if there is public concern. If it is determined that there is uncertainty regarding the likelihood of significant adverse environmental effects, or significant adverse effects are likely but may be justifiable, or where public concerns warrant a reference to a mediator or a review panel. the project will be referred to either a mediator or a review panel.

An operational plan and safety plan are required by GNWT's Mines Safety Section, before any blasting, diamond drilling or mechanical trenching may commence. In addition, a permit to burn is required under the Forest Protection Act (GNWT) for outdoor fires. The Territorial Labour Standards Act and Regulations state working conditions for non-governmental employees. Requirements for sanitation in field camps are governed by the Public Health Act (GNWT). Flights in areas of wildlife concentrations are restricted to above 500 metres above ground level, 3000 metres in goose staging areas, and raptor nesting areas. Bird colonies and migration staging areas are to be avoided. Land use activities may be suspended in some areas at certain times of year during calving season under the Caribou Protection Measures. Exploration in Migratory Bird Sanctuaries requires a permit from the Canadian Wildlife Service and must not disturb the birds or nests.

In summary, all activities on a mineral claim must be in accordance with environmental legislation, such as the Territorial Land Use Regulations, the Northwest Territories Waters Act, the Canadian Environmental Assessment Act, the Fisheries Act and approved land claims. Integration of the environment and economy is accomplished within the entire regulatory framework governing mineral exploration and development.

The perception of widespread land use conflicts may come from the large amounts of land staked by mining companies. Prospectors and other mineral explorers need access to large areas for exploration but not all the land that they stake is necessarily explored, and less than 1 percent of the land explored has the potential for mining. The problem and the dilemma for land use planning is that no one knows which 1 percent will be suitable for development. Most early exploration is benign, regulatory controls are becoming more stringent and, at the same time, exploration technologies get better and less intrusive.

The Petition contains comments on each of the eight means, listed in section 21.1 of the Auditor General Act, by which sustainable development may be achieved. This is not a list of features that must be included in each piece of legislation, but the department is establishing the list of principles, such as those, to guide DIAND's sustainable development strategy.

The following responds to each of those comments.

(a) Integration of the environment with the economy

"There is no evidence whatsoever that environmental factors are integrated into the design of the CMRs."

When amendments to regulations are published for public comment, they are accompanied by a Regulatory Impact Analysis Statement (RIAS). Most recently, on December 14, 1996, some minor amendments such as revising the forms in the Canada Mining Regulations were published in the Canada Gazette. The Regulatory Impact Analysis Statement (RIAS) contained the following statement:

"These amendments do not have any environmental effect. The Canada Mining Regulations are subject to all environmental legislation currently in place."

As stated in the RIAS, the Canada Mining Regulations are designed to operate in conjunction with territorial and other federal legislation protecting the environment.

The next statement, in the Petition deals with two new topics.

"On the contrary, the CMRs are informed by a development ethic in which resource rights are simply given away to the first comer."

The phrase "...simply given away to the first comer" is not a full description of the requirements to hold a licence. A mineral right may be retained only as long as the holder of the mineral right submits proof that he or she has actively evaluated the mineral potential of the claim. Only rarely does this individual effort lead to the discovery of a valuable mineral deposit and each stage of this effort and any development proposal is subject to thorough environmental screening.

To examine how DIAND is addressing the integration of the environment and economy, one has to look beyond the Canada Mining Regulations. As noted in the Petition, the Canada Mining Regulations are the regime for granting third parties limited rights to Crown owned minerals in the N.W.T. The regulations deal almost exclusively with how to acquire and maintain mineral rights.

There is one environmental provision in the regulations namely section 73. The Canada Mining Regulations state in subsection 73(2) that:

"No person shall prospect, perform representation work on a claim or deposit earth, clay, stone or any mineral ore or the tailings on a claim except (a) in accordance with (I) any Act of Parliament, or (ii) these Regulations or any other regulations made pursuant to the Territorial Lands Act..."

As stated above, this means that all activities on a mineral claim must be in accordance with environmental legislation such as the Territorial Land Use Regulations, the Northwest Territories Waters Act, the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, the Fisheries Act and settled land claims. Integration of the environment and economy is accomplished within the entire regulatory framework governing mineral exploration and development (see Appendix).

(b) protecting the health of Canadians

"Again, there is no evidence that this is a relevant consideration."

Health and safety are within the powers of the Government of the Northwest Territories under the Public Health Act. The Canada Mining Regulations do not restrict the application of any territorial or federal legislation that protects the health of Canadians.

"The record of the Giant Mine in Yellowknife suggests that the health of Canadians is not high on the list of priorities for the Department"

The Petition does not state which aspects of the mine's history it wants addressed or how this relates to the substance of the Petition on "free entry." This is a very old mine. Although the mine is required to operate according to the relevant health and safety regulations, the company as well as both levels of government are fully aware of some potential problems related to the emission and storage of arsenic. All parties are working cooperatively in finding solutions to these potential problems.

Several federal and territorial agencies have responsibilities related to the control and management of the mining wastes associated with the Giant mine. In carrying out these responsibilities over the last two decades, these agencies have required the mine owner to undertake studies and they have commissioned independent studies to determine the potential for environmental and human health effects from mining activities. These studies, which have focussed on arsenic in local aquatic eco-systems and air, have found that with improvements in waste management the levels of arsenic in the environment have dropped significantly over the years and are not considered a significant environmental or human health concern. Recent studies by the department have found that arsenic levels in drinking water and fish from Great Slave Lake near Yellowknife do not pose a health concern.

The company and government agencies are currently completing studies to determine the best approach for the long term management of arsenic wastes that have been placed in underground storage vaults. If not properly managed, these wastes could pose a long term environmental and human health concern. Regulatory agencies, in particular the Northwest Territories Water Board, will consider the findings of these studies and other factors, including public interventions, in establishing legal requirements related to the future closure and decommissioning of the mine.

"The free entry system even applies to the search for and development of radioactive minerals (e.g. Rayrock, Port Radium, Kiggavik) without considering the public health and related policy questions."

Subsection 3(2) of the Canada Mining Regulations states that the "Regulations are subject to any Act governing the production, conservation and control of ores containing radio-active elements." The inclusion is unnecessary for legal purposes, but was included to draw attention to the existence of the other legislation.

The territorial government's Mine Health and Safety Act addresses the safety of workers exposed to radioactive materials. Additional protection for workers and the environment is afforded by the Atomic Energy Control Act and its regulations such as the Uranium and Thorium Mining Regulations which are administered by the Atomic Energy Control Board (reporting to the federal Minister of Natural Resources). This legislation will continue to protect workers, regardless of the system in place for disposing of Crown mineral rights.

(c) Protecting ecosystems

"A free entry system makes it impossible to take into account considerations of ecosystem health in the absence of an adequate planning mechanism designed to ensure that lands valued for reasons of ecosystem health are withdrawn from disposition or staking"

The licenced entry system for mineral disposition contained in the Canada Mining Regulations neither makes it impossible to take into account considerations of eco-system health nor prevents an adequate system being designed. The Appendix describes the minimal effects of the staking process and the opportunities for environmental screening which occur as exploration proceeds.

DIAND does not act alone in identifying lands that need protection. Other agencies such as Heritage Canada and Canadian Wildlife Service recommend lands for protection. DIAND is also developing additional approaches to identifying lands valued for eco-system health. DIAND consults with the Inuvialuit Game Council and individual Hunters and Trappers Committees (HTC) in each of the six Inuvialuit communities to determine areas of environmental sensitivity and to identify effects associated with project-related activities. Environmental Sensitivity Maps are being prepared by DIAND based on the community wildlife management and conservation plans, existing oil and gas sensitivity maps, information gathered in consultations with Inuvialuit organizations and other available data. These maps are to be reviewed annually. All prospecting permits holders and prospectors licence holders are to consult with the HTC in the areas where the activity is to be carried out.

The approval of comprehensive land claims is changing the very context of land administration and resource management in the N.W.T. With the co-management bodies established under land claims agreements becoming the authorities for such matters as wildlife, land and water management, environmental assessment and land use planning, responsibility moves from government to these institutions of public government to which both Aboriginal people and both governments nominate members.

Land use plans have already been completed for two very large areas of Nunavut; Lancaster Sound and Keewatin. Land use planning provides a public forum for the consideration of all potential uses of land and water within a planning area at one point in time.

The Nunavut Planning Commission came into being July 9, 1996 as did the Nunavut Water Board and the Nunavut Impact Review Board. The Gwich'in Interim Planning Board has been in place since that claim was ratified in 1992. Permanent planning boards will be established in both the Gwich'in and Sahtu settlement areas upon passage of the Mackenzie Valley Resource Management Act.

The importance of land use planning under land claims, in the context of mineral exploration, is that environmental assessment process under the claims involve the initial step of checking proposals against the land use plan to make sure the activity is consistent with the plan. This will ensure that it is possible, in the early stages of approvals for exploration, to account for ecosystem health.

(d) Meeting International obligations

Open access regimes, unless accompanied by the planning mechanism referred to above, make it more difficult for Canada to discharge its obligations for in-situ conservation under the Biodiversity Convention and its obligations to Aboriginal peoples under the Rio Declaration, Agenda 21, the UN Draft Declaration on the Rights of Indigenous Peoples, and s.35 of the Constitution Act, 1982.

Although the documents to which reference is made do not refer to open access regimes, a sound planning process facilitates the discharge of obligations, both international and domestic, for in-situ conservation and certain international obligations. The emerging land claim settlements and the self government legislation, are resulting in a new resource management regime in the north, through the establishment of co-management bodies. These structures are consistent with Canada's international commitments.

Article 8 in the Convention on Biological Diversity requires, among other things, the establishment of protected areas, where special measures need to be taken to conserve biological diversity. In this respect, a Protected Area Strategy is currently being developed by the GNWT with assistance from DIAND. A number of national parks and other protected areas have previously been established. Furthermore, the implementation of sensitivity mapping to identify areas which should be excluded from some specific activities is being undertaken, in some parts of the N.W.T. Principles 4 and 22 in the Rio Declaration are probably particularly pertinent to the issue.

Principle 4 states, "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it". The actions undertaken by the government, in full co-operation with all stakeholders, to protect the environment in the course of providing approvals for the development of the BHP project, are an example of how the government is adhering to the principle.

Principle 22 states, "Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the sustainable development". Given the participation of Indigenous people previously in such programs as the Arctic Environmental Strategy, and more recently on co-management boards, and in public hearings, it is clear that opportunities exist for Indigenous people to play a significant role in environmental management and development. DIAND provided support for a study on Traditional Ecological Knowledge which will result in a soon to be published book. The existence of open access for mineral exploration is not hindering this participation or reducing the impact that local communities can have.

The United Nations draft Declaration on the Rights of Indigenous peoples considers the rights of Indigenous and local communities to embodying traditional lifestyles. As far as can be determined, access to Crown lands for the purposes of mineral exploration is not compromising the practices of indigenous and local communities in this context.

Chapter 26 of Agenda 21 provides a basis for recognizing and strengthening the role of Indigenous people and their communities in the implementation of the Agenda. The government of Canada has established a process to empower Indigenous people and their communities through programs to implement self government, settlement of land claims, and participation in various processes, e.g., the development of departmental sustainable development strategies, and the provision of funding so that they can be part of environmental assessment processes. Co-management boards already exist in the Inuvialuit Settlement Region and in Nunavut. With the passage of the Mackenzie Valley Resource Management Act, Indigenous people in the N.W.T. will have a legislated role on co-management boards. Consequently, even without a mechanism for withdrawing lands from disposition or staking for reasons of eco-system health, it is unlikely, in the event of subsequent development, that significant eco-systems will be damaged because of other mechanisms in place to prevent or mitigate the impact of development.

To our knowledge, the lack of a mechanism to prevent staking of mineral claims on Crown lands that have not been protected or withdrawn from disposition or staking, is not inconsistent with the draft Declaration on the Rights of Indigenous peoples.

The regime currently in place in the N.W.T. is consistent with Section 35 of the Constitution Act.

(e) promoting equity

"The application of the open access regime to areas of unsettled land claims in the N.W.T. promotes inequity insofar as it facilitates the systematic undermining of the local economy and allows development before the Aboriginal inhabitants are in a position to benefit from that development."

One of the advantages of the licenced staking system is that it gives everyone equitable access to mineral resources. The Aboriginal prospector can compete with major multinational mining companies in staking mineral claims. The licenced staking regime has provided an avenue for Aboriginal people and other individuals to participate and compete in the mining industry as prospectors and contract stakers and in the development of junior mining companies. Equity is further enhanced by royalty sharing provision where claimant groups in areas of settled land claims may share in royalties from production of Crown minerals.

DIAND has made significant progress in promoting equity. One of the most pressing issues for Aboriginal people in the N.W.T. is the creation of jobs and opportunities for business. It takes an average of about 10 years to progress from staking a property to bringing it into production. With this lead time and considering the long odds against any one mineral property containing an ore body, suspending staking until all land claims are settled could reduce the number of jobs available during negotiations and for many years thereafter and would not promote equity for Aboriginal people. The process that led to the authorization for BHP Diamonds Inc. (BHP) to proceed with the development of a diamond mine, clearly shows that Aboriginal groups, that have not completed land claims agreements, are not shut out from the benefits of sustainable development. As a result of negotiated Impact and Benefits Agreements with BHP, the Aboriginal people secured significant benefits in the form of cash payments, jobs, training and business opportunities. This happened because of DIAND's actions. It is a clear indication of DIAND's commitment to ensure that maximum benefits from mineral development is provided to Aboriginal communities.

"DIAND makes no attempt to balance, and is in fact prevented from balancing, the public interest in rational and ecologically sustainable resource management versus the private interests that are established once a mineral claim has been staked and recorded."

The staking of a mineral claim does not prevent the government enforcing its sustainable development policy. It is recognized that the act of staking has minimal effect on the environment and is exempted from screening. Land use legislation and various other legislation will trigger an environmental review of a project before it reaches an advanced stage. The result of the licenced staking provisions of the Canada Mining Regulations is not to exempt the holder from any part of the environmental process.

(f) An integrated approach that balances costs

"Again, there is no evidence that an open access regime is capable of balancing costs. All land is open to staking, unless withdrawn. There is no pre-assessment of mineral values and ecological values. The land is simply open for exploration and potentially production."

The petitioners are correct in that there is no general process to "pre-assess" the whole N.W.T. for either mineral or ecological values. Such a task would simply be too costly, time-consuming and the results might well become outdated before they were used. However, the Canada Mining Regulations incorporate an ongoing assessment process because of the requirement to submit reports on exploration work. This helps to build the geoscience information base and eliminates the need to potentially re-do exploration work. Ecological assessments are a part of the environmental assessment process for large projects and are also done by agencies putting forward protected area proposals. Mineral and Energy Resource Assessments are carried out for proposed national parks. These kinds of initiatives can lead to the withdrawal of lands from disposition as interim protection or permanently such as for the Thelon Wildlife Sanctuary or Polar Bear Pass National Wildlife Area.

Resource evaluation for both mineral and ecological values are reiterative. No one evaluation can be considered the final and complete assessment. Only, as more detailed research builds on knowledge, can better decision be made.

"Furthermore, the very system of locating and maintaining claims encourage waste of resources and environmental practices that are not sustainable."

Alternatives to ground staking such as map staking are very efficient where decisions to stake claims are made in the office, but do not help the prospector in the field who wants to stake a claim over promising ground. Map staking would also eliminate a great number of well paid jobs presently performed by local residents.

"Finally, encouraging third parties to obtain mineral rights prior to land use planning or designation of conservation lands may leave the Crown exposed to compensating those parties when lands may need to be withdrawn (see Tener case)."

In the absence of a complete advance knowledge of mineral and ecological values, there is always the risk that a development will be stopped for environmental reasons.

(g) preventing pollution

"There is no evidence that pollution is a relevant consideration in the CMRs."

Subsection 73(1) of the Canada Mining Regulations gives the Minister of DIAND authority to deal with pollution. There are numerous other federal and territorial legislation that regulates pollution. Pollution of air, land and water is regulated by the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, the Fisheries Act and the Northwest Territories Waters Act.

"The requirement for representation work to maintain claims actually encourage activities that result in pollution of air, land and/or water."

The Canada Mining Regulations do not require representation work. However, it is a condition for maintaining claims. A mineral claim holder may perform and report on mineral exploration to a value specific to the Canada Mining Regulations and apply it to meet the conditions for retaining a claim. Representation work is carried out in accordance with environmental protection legislation as described in the Appendix. As stated above, subsection 73(1) of the Canada Mining Regulations gives the Minister of DIAND authority to deal with pollution.

"There are no provisions to reward activities that are less damaging to the environment (e.g. map staking, surveys without trenching or ground work)."

Map staking is presently not allowed in the N.W.T. because most areas have not been surveyed. Government does not enforce which technology should be used but does insure that activities with potential to damage the environment are screened to mitigate damages. Penalties for non-compliance exist in all legislation. The mining industry has to mitigate all aspects of the environmental disturbance which occurs on their mineral claims. In many cases, the exploration techniques used are chosen on the basis of their environmental impact. Indirectly, there may be rewards for activities that are less damaging to the environment. For example, more stringent guidelines for diamond drilling on ice have resulted in increased drilling costs. Since the amount of representation work is measured by the cost of the work, greater representation work credit is given.

(h) respect for nature and the needs of future generations

"There is no evidence that a free-entry system balances the needs of nature. Such a system is based on a developmental ethic rather than an ecological ethic. It also assume that all lands should be open for development now. In such a system it is hard to plan development so that it occurs in a staged and managed manner that benefits the residents of the region and avoids a boom and bust economy."

Being able to plan long term mineral development in a staged and managed manner is extremely difficult, given that investor interest is cyclic by nature and is driven by a number of factors such as international supply and demand. DIAND focuses on the management of the mineral industry by ensuring that the "rules of the game" are clear, that the environmental and social costs are minimized and that benefits are distributed throughout the affected region over time. There are many recent examples of this approach including DIAND's participation in the West Kitikmeot Slave Study and the N.W.T. Community Mobilization Job Partnership Strategy. DIAND initiated and became a founding partner in the West Kitikmeot Slave Study because the department recognized the need for baseline information for informed decision-making facilitating sustainable development. DIAND was also a founding partner of the N.W.T. Community Mobilization Job Partnership Strategy which is helping to build the capacity of N.W.T. communities to participate meaningfully in mineral development and associated economic activities.

The following quotation is from one of the closing paragraphs of the Petition:

"There is absolutely no evidence that the Department is proactively developing policy to adapt the current regime so that it is consistent with the principles of sustainable development."

Integrating sustainable development into its decision making, as articulated in the departmental draft sustainable development strategy is DIAND's goal. In addition to the December 1996 consultation workshops, which focussed on identifying sustainable development challenges for the department, DIAND conducted an internal scan of its programs and policies.

The current regime is rapidly changing. It creates an opportunity to proactively incorporate principles of sustainable development into the changes as they are being introduced. The department has a heavy agenda of pending legislation, including the new Mackenzie Valley Resource Management Act, the Nunavut Waters Act, the Nunavut Surface Rights Tribunal Bills and is not able to commit resources, at this time, to a comprehensive review of all legislation.

In addition, the North is entering a transitional period during which the settlement of comprehensive land claims is changing the very context of land administration and resource management in the N.W.T. The establishment of new institutions provides opportunities to create modern, predictable and efficient, natural resource and environmental management practices which better promotes sustainable development. Conducting a comprehensive review of existing resource management legislation including the Canada Mining Regulations, will be more appropriate, after land claims are settled in the N.W.T.

In conclusion, the Canada Mining Regulations do not work alone. There is a multitude of existing legislation which regulates the mining industry in the N.W.T. in a sustainable manner. The licenced staking regime, which the petitioners call "free entry", supported by the overall regulatory framework, is consistent with the principles of sustainable development.

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Attachment

THE MAIN ACTS AND REGULATIONS GOVERNING
THE MINING SEQUENCE IN THE NORTHWEST TERRITORIES

APPENDIX TO THE PETITION
SUBMITTED TO THE AUDITOR GENERAL
BY
MR. KEVIN O'REILLY AND MR. NIGEL D. BANKES
OFFICERS OF THE CANADIAN ARCTIC RESOURCES COMMITTEE
DATED APRIL 15, 1997

 

Introduction

The following discussion of the mining sequence and the main acts and regulations governing it in the Northwest Territories (N.W.T.) Is not intended to be exhaustive. The reader is directed to the acts and regulations for complete details. This discussion forms part of the response to the Petition submitted on April 15, 1997 by Mr. Kevin O'Reilly and Mr. Nigel D. Bankes, officers of the Canadian Arctic Resource Committee to the Auditor General under section 22 of the Auditor General Act. This discussion supports the position held by the Department of Indian Affairs and Northern Development (DIAND) that the mining sequence in the N.W.T. is adequately regulated from beginning to end, in a manner consistent with the principles of sustainable development.

The regulatory framework described in this discussion is a snapshot in time. Since the early 1990s, most major pieces of legislation governing mineral development in the N.W.T. have changed. For example, the Northern Inland Waters Act was replaced by the Northwest Territories Waters Act which in turn will soon be replaced by the Mackenzie Valley Resource Management Act (MVRMA) and the Nunavut Waters Act. The Canadian Environmental Assessment Act process has replaced Environmental Assessment Review Process Guidelines, Environmental assessment processes will soon be established under the MVRMA and Nunavut Resource Management Act, which will, in most cases replace the Canadian Environmental Assessment Act (CEAA). Extensive amendments have been to the Canadian Environmental Protection Act (CEPA), the Territorial Mine Safety Act has been replaced by the Mine Health and Safety Act.

Under most settled land claims in the N.W.T. land use planning boards are being or will be established. For example, in the Nunavut settlement region the Nunavut Planning Commission was established in early July 1997, while the Gwich'in Interim Land Use Planning Board was established when the agreement was signed in 1992. Permanent land use planning boards will be put in place for both the Gwich'in and the Shatu Dene and Metis settlement areas upon passage of the MVRMA. The land use planning function in the settlement regions effectively replaces a function which, until recently, was carried out by the federal government. The land use planning process will develop planning policies, priorities and objectives regarding the conservation, development management and use lad land within the various settlement regions.

Not only have the regulations changed, the regulators are changing. The MVRMA will establish co-management boards in which Aboriginal groups will participate in regulating mineral development in their areas. In Nunavut, the Nunavut Impact Review Board (NIRB) is responsible for environmental assessments while the Nunavut Water Board (NWB) issues and renews water licences. Although this has represented a period of uncertainty for those in the mining sequence, it has been an opportunity to ensure that modern resource management practices and sustainable development principles are being enshrined in legislation. This process is ongoing.

The mining sequence covers all activities related to mining, from initial mineral exploration or prospecting and claim staking, through to mineral production and eventual mine closure and rehabilitation. The role of the individual prospectors and the exploration and mining companies involved in the Canadian mining sequence is to find, delineate and develop economic mineral deposits, then to mine and concentrate the ore for further processing either domestically or internationally for the eventual manufacture into consumer durables or other end uses. The discovery of economic mineral deposits is what maintains the mining industry's ability to continue to be active in the economy and to provide the benefits from that activity. These activities range in scope from a single person out prospecting to the construction of a large scale mineral development and production facilities that will operate over several decades.

The mining sequence is closely regulated before the first claim stake is put into the ground until the final reclamation of the mine site. In the N.W.T. there are no less than twenty-five different Acts of Parliament or sets of regulations which together govern the mining sequence.

In this discussion on the mining sequence and the Acts and regulations under which it is pursued is limited to Crown lands in the N.W.T. Crown lands in the N.W.T. are controlled and administered for the federal government, for the most part, by DIAND. The Territorial Lands Act, and its several regulations is the federal legislation responsible for the disposition and administration of Crown lands. The Canada Mining Regulations (CMR), under the Territorial Lands Act sets the methods of disposition and administration of minerals (except for coal, oil, natural gas and minerals which are quarried). By virtue of federal control and administration, practically all activities on Crown lands undergo an environmental assessment in order that DIAND fulfill its regulatory obligations before issuing permits, approvals or authorizations.

As described below the mining sequence follows a fairly standardized path in that, generally speaking, the sequence is a process of answering yes or not to a series of questions at each step in the sequence with respect to the probability of a economic mineral deposit being found. A "yes" generally leads to the next step in the sequence if financial resources are available while a "no" answer generally leads to the land reverting to the Crown.
Past experience indicates that on average, one in every 10,000 starts in the mining sequence leads to the development of a mine.

The Mining Sequence - Availability of Land

One of the earliest steps in the mining sequence is the determination of what land is available. In the N.W.T. there is a significant amount of Crown land which is not available to the mining sequence including; National Parks, National Wildlife Areas, cemeteries and burial grounds, lands withdrawn on a temporary basis for the purposes of settling an Aboriginal land claim except where existing mineral rights have been established, and lands under the administration and control of other federal departments including National Defence, Natural Resources Canada or Transport Canada unless with written permission from the responsible Minister. As well, Commissioner's land which has been withdrawn by the Government of the Northwest Territories (GNWT) are also not available to the mining sequence.

Private lands where the subsurface is owned by Aboriginal groups pursuant to the settlement of a land claim are not subject disposition under the CMR.

As noted above, the methods of disposition and administration of minerals in the N.W.T. are controlled and administered through the CMR. The CMR provide for the holders of a prospector's licence to acquire exclusive rights for the prospecting and development of mineral rights by staking and recording mineral claims. For remote areas in the N.W.T. the CMR provide for the holders of a prospectors licence to obtain a prospecting permit which covers a large area and provides the licence holder exclusive right to prospect and to stake mineral claims in the area.

Entry onto private lands where surface rights have been established for purposes of acquiring the underlying Crown mineral rights may be made with the permission of the surface holder or by permission following arbitration.

In the areas where Aboriginal land claims have been settled and legislated by the federal Parliament, a degree of control over Crown lands has been, or will be, transferred to the Aboriginal claimant groups through their participation on regulatory co-management boards. These co-management boards will ensure that community values and aspirations are part of the decision making process with respect to economic development in the settled areas. As well, within the settlement areas there is Aboriginal ownership of the land (known as fee simple title) to specifically defined surface land areas which can also include subsurface land areas. In these areas, land is controlled and administered by the respective claimant group and therefore they will need to be approached by any person or company wishing to stake a mineral claim.

Governing Acts and Regulations:

Federal: Territorial Lands Act (Canada Mining Regulations); Canada Wildlife Act; Migratory Birds Convention Act; National Parks Act; Historical Resources Act; NWT Act (Archeological Sites Regulations).

GNWT: Commissioner's Land Act and regulations.

Aboriginal: Gwich'in Land claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

The Mining Sequence - Beginning

In most cases a prospector or exploration company will identify areas of interest from a number of sources such as, a literature search, the work of others nearby, or work in similar geological environments. This strategy increases the possibility that an economic ore deposit will be identified.

Before any type of exploration activity on Crown lands in the N.W.T. can be undertaken, a prospector's licence must be obtained from a federal government mining recorder. This licence gives the individual or a company registered in the N.W.T., the authority to enter onto Crown land in order to prospect and to stake a mineral claim except where the surface rights have been disposed in which case the licence holder must get the permission of the owner to enter the land. Once the individual prospector or a properly registered company has undertaken the necessary homework, obtained at least a prospector's licence and any other permits which are necessary to undertake the expected level and type of exploration work then the process of area selection can begin.

Following selection of the land and the required claim staking, any properly staked mineral claim must be recorded by the local mining recorder. Having the claim recorded ensures that the licensee's temporary right to any sub-surface minerals is established. The staking of a mineral claim does not stop others from undertaking non-mineral related activities within the claim boundaries such as eco-system assessment, hunting, trapping, or nature hiking.

Additional authorization permits are required if the mineral claim holder decides to undertake any activity beyond those normally associated with early stage exploration such as building a small temporary camp in order to do preliminary on-ground geophysical measurements, or to do small scale geochemical sampling such as stream sampling or chip sampling of naturally exposed bedrock. However, the use of powered mechanical equipment which weighs more than 500kg requires an environmental review by the permitting authority.

The mineral claim holder wishing to undertake a more intensive exploration program needs both a land use permit, which details the conditions of land use and may need a water licence, which details the amount of water used and the condition of any water being returned to the environment.

Governing Acts and Regulations

Federal: Territorial Lands Act (Canada Mining Regulations); Canadian Environmental Assessment Act; Fisheries Act; Canada Wildlife Act; Migratory Birds Convention Act; National Parks Act; Historical Resources Act.

GNWT: Commissioner's Land Act and Regulations.

Aboriginal: Gwich'in Land claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

Mining Sequence - Regional Surveys

In order to identify potential mineral occurrences within the mineral claim boundaries a regional survey may be undertaken. Most commonly this is done using airborne geophysical surveys with follow-up work on the ground. In most cases, given the remote nature of most of the N.W.T., it is necessary to establish field camps before any actual exploration work can economically be undertaken.

Only the smallest field camps can be established without any permits beyond the prospector's licence. Any camp which will use regulated powered equipment or material such as fuel or explosives beyond the established thresholds requires a land use permit which, depending on the location in the N.W.T., is obtained either from DIAND or the authorized Aboriginal group or co-management board. The land use permit will undergo an environmental assessment by the issuing authority such as the Nunavut Impact Review Board who will set out terms and conditions which must be followed subject to inspections. Some of the conditions covered relate to fuel storage, geochemical sampling, access trails, temporary camp construction and removal, spill continency plans and other issues.

The Territorial Lands Act governs the disposition and administration of federal Crown lands in the N.W.T., including mineral rights and access. The CMR dispose of subsurface rights, and regulate mineral exploration licensing and mining rights. Where legislated thresholds are surpassed, the Territorial Land Use Regulations govern temporary use of surface such as for trail construction, fuel storage use and camp facilities for temporary exploration activity on unoccupied Crown lands (where no surface rights have been granted). The Territorial Land Regulations provide for leasing of surface rights where long terms structures and occupation of the land is required.

Exploration carried out prior to mineral rights acquisition, including airborne geophysics, geochemical surveys, geological surveys, may be carried out under a prospector's licence required under the CMR. The Commissioner's Land Act governs surface access and disposition (through the GNWT Department of Municipal and Community Affairs) to Commissioner's lands.

The actual operation of a field camp must meet the minimum working conditions as established by the GNWT Labour Standards Act and Regulations, the sanitation and medical care standards as established by the GNWT Public Health Act, the use and control of open fires as set out in the GNWT Forest Protection Act. The land use permit will establish conditions for the storage of bulk fuels and explosives as well as the use of mechanical equipment including vehicles and drill rigs.

Governing Acts and Regulations

Federal: Territorial Lands Act (Canadian Mining Regulations, Territorial Land Use Regulations); Canadian Environmental Assessment Act; Fisheries Act.

GNWT: Commissioner's Land Act; Public Health Act; Emergency Medical Aid Act; Workers Compensation Act; Forest Protection Act; Fire Protection Act; Labour Standards Act; Wildlife Act; Labour Standards Regulations; Mines Health and Safety Regulations.

Aboriginal: Gwich'in Land Claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

The Mining Sequence - Primary Exploration

Except in areas administered by Aboriginal authorities, the work undertaken during primary exploration surveys on Crown lands are administered by DIAND under the CMR of the Territorial Lands Act. The CMR govern rights, representation work and licence requirements for mineral exploration in the N.W.T. Primary exploration is done on mineral claims and prospecting permits by holders of prospector's licences. Primary exploration may include site specific airborne geophysics, line cutting, prospecting, ground geophysics, geochemical surveys, geological surveys, hand and mechanical trenching/stripping and drilling to determine the nature and extent of a mineralized zone that might encourage advanced exploration which in turn could lead to the development of a mine. The rights granted under the CMR authorize exploration on Crown lands. The Territorial Land Use Regulations set the environmental terms and conditions for the temporary use of unoccupied Crown lands and a land use permit will be required in the majority of the exploration activities on both Crown and Commissioner's lands. The Northwest Territories Waters Act may require that a water licence be obtained for the use of water over certain quantities, the condition of used water being returned to the environment and the location of waste deposits relative to the watershed any where in the N.W.T.

Governing Acts and Regulations:

Federal: Territorial Lands Act; Northwest Territories Waters Act; Explosives Act; Canadian Environmental Protection Act; Transportation of Dangerous Goods Act; Canadian Wildlife Act; Canada Parks Act; Forest Management Act; Territorial Timber Regulations.

GNWT: Commissioner's Lands Act; Explosive Use Act; Environmental Protection Act; Environmental Rights Act; Mining Safety Act; Mine Health and Safety Act and Regulations.

Aboriginal: Gwich'in Land Claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

The Mining Sequence - Advance Exploration

Except in areas administered by Aboriginal authorities, the regulation of advanced exploration surveys on Crown land is administered by the DIAND under the Territorial Lands Act and the CMR. The GNWT administers mine safety and miners health and welfare under territorial legislation, and issues land use permits for Commissioner's lands. Advanced exploration on a claim or a claim group includes activities such as diamond drilling on a grid, bulk sampling, open pitting, underground mining and pre-development construction for pilot operations, in order to establish a grade and tonnage for the mineralized zone. Activities associated with advanced exploration will under go an environmental assessment and screening by the regulatory authority depending where the project is located.

Governing Acts and Regulations:

Federal: Territorial Lands Act (Canada Mining Regulations, Territorial Land Use Regulations); Northwest Territories Waters Act; Canadian Environmental Protection Act; Canadian Environmental Assessment Act; Fisheries Act (Metal Mining and Liquid Effluent Regulations); Arctic Waters Pollution Prevention Act; National Parks Act; Northwest Territories Act (NWT Archaeological Sites Regulations) Historic Sites and Monuments Act; Navigable Waters Act.

GNWT: Commissioner's Land Act; Mine Health and Safety Act and Regulations; NWT Historical Resources Act; Territorial Parks Act; Explosives Use Act; Public Health Act; Fire Prevention Act; Emergency Medical Aid Act; Gas Protection Act; Labour Standards Act and Regulations.

Aboriginal: Gwich'in Land Claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

The Mining Sequence - Development and Production

Except in areas administered by Aboriginal authorities, the development and production of mineral deposits on most Crown land is regulated by DIAND under the Territorial Lands Act (Canada Mining Regulations and Territorial Land Use Regulations) and in accordance with the Canadian Environmental Assessment Act (CEAA). The development and production of mineral deposits on Commissioner's lands is regulated by the GNWT Department of Municipal and Community affairs. Most often, a surface lease and a mineral lease is obtained before any production commences. These leases give the holder exclusive use of the surface and subsurface in question. The site development would include the mine, mill works, concentrators, heap leaching facilities, labour housing and a transportation system. The mine works might be open pit (extraction of ores from the surface) or underground (extracting ores by shafts, tunnels, drifts). Beyond the quality and the quantity of the discovered mineral resources a number of external factors bear upon the decision to commence commercial operations; access to power, transportation, refining and marketing, and the availability of manpower and equipment. The current and forecast mineral prices bear heavily upon the decision to commence a full scale mining operation.

The decision to open a commercial mineral operation requires planning in order to succeed. The support systems such as on-site transportation, housing, labour and environmental protection, require a system of permits, standards and authorities which must be obtained before development construction can commence. These support systems give rise to a need to provide an environmental impact statement and a review and assessment under the Canadian Environmental Assessment Act. This review and assessment process can range from a basic Level 1 screening through to a more rigorous Level 2 screening or could even require extensive public consultations and panel hearings. In addition to the protection of the environment, wildlife and wildlife habitat, fisheries and fishery habitat, the social and economic impacts and opportunities will be examined and importance will be attached to the benefits and business opportunities accruing to the local communities and to the N.W.T. Although the current mineral legislation does not require a reclamation plan or security deposit, careful attention should be given to the current guidelines and policies respecting mine reclamation and acid drainage abatement.

Where a water licence is required by the Northwest Territories Water Act, for mine development purposes (water use and deposit of waste) a detailed reclamation plan and security deposit will be required. While the Minister of DIAND signs Class A water licences, the NWT Water Board is responsible for holding public hearings and writing the final terms and conditions of the licence.

Under the Territorial Lands Act, the project proponent will also require one or more surface leases. The terms and conditions of the leases cover the activities which are allowed to take place on the leases and are negotiated between the federal government and the project proponent.

Governing Acts and Regulations:

Federal: Territorial Lands Act (Canada Mining Regulations, Territorial Land Use Regulations); Territorial Quarrying Regulations; Northwest Territories Waters Act and Regulations; Canadian Environmental Protection Act; Canadian Environmental Assessment Act and Regulations; Migratory Birds Convention Act; Canada Wildlife Act; Northwest Territories Act (NWT Archaeological Sites Regulations); Fisheries Act; Atomic Energy Control Act; Uranium and Thorium Mining Regulations; Historic Sites and Monuments Act.

GNWT: Commissioner's Land Act; Mining Health and Safety Act; Explosives Use Act (Blasting Certificate Regulations; Mining Safety Regulations); Public Health Act; Wildlife Act; Forest Protection Act; Fire Prevention Act; Worker's Compensation Act; Labour Standards Act; Transportation of Dangerous Goods Act; Gas Protection Act; Miners Liens Act; Fair Practices Act; NWT Historical Resources Act; Territorial Parks Act.

Aboriginal: Gwich'in Land Claim Settlement Act; Western Arctic (Inuvialuit) Claims Settlement Act; Nunavut Act; Nunavut Land Claims Agreement Act; Sahtu Dene and Metis Land Claim Settlement Act.

The Mining Sequence - Closure

A surface lease will require that the rights-of-way, spoil piles and platforms be stabilized and the site returned to as near its original state as is practical. Personal property, equipment and structures, will likely have to be removed. The land covered by the surface lease will be inspected prior to closure and, if all is in order, a certificate of compliance will be issued. If warranted, the closure of the operations may be subject to an environmental assessment.

A water licence will require a formal closure plan for the project to ensure that the territorial waters and watersheds are protected from further deposit of deleterious substances. The licence will be conditioned by the successful compliance with the approved closure plan before the financial assurance will be released on the abandoned property.

The abandonment and closure of a mine will not discharge the holder from liabilities without a satisfactory inspection. In some cases, a company may be required to continue monitoring the water discharge long after closure.

Governing Acts and Regulations:

Federal: Territorial Lands Act (Canada Mining Regulations, Territorial Land Use Regulations); Northwest Territories Waters Act.

GNWT: Mining Health and Safety Act.