Ministry of Mines
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The Ministry of Energy, Northern Development and Mines (ENDM, Ministry) wants to ensure that lands identified by Aboriginal communities as sites that might meet the prescribed criteria as a site of Aboriginal cultural significance (SOACS) are given due consideration in order to ensure protection, and to help build relationships between communities, Ministry and industry proponents. This can best be achieved by early identification of lands so that they can be withdrawn from prospecting, mining claim registration, sale and lease. This policy outlines how the Ministry will process requests for protection of SOACS.
Note: This policy only deals with sites of Aboriginal cultural significance or SOACS for purposes of, or under the Mining Act. This term may be used differently by other ministries.
The Mining Act includes provisions intended to assist the Ministry in minimizing or avoiding disruption to “sites of Aboriginal cultural significance” caused by mineral exploration and development activities. This includes withdrawing lands from prospecting, mining claim registration, sale or lease, pursuant to section 35 of the Act where no mineral tenure yet exists, or, as a last resort, restricting a claim holder’s rights to use certain surface portions of the mining claim (“surface rights restriction”), pursuant to subsection 51 (4).
The decision to use either of these tools is a discretionary decision and will be made consistent with: the purpose of the Act, the criteria prescribed in the General Regulation, O. Reg. 45/11 (the Regulation) and the processes set out in this policy.
Withdrawals and surface rights restrictions made pursuant to the Mining Act have the effect of constraining or prohibiting mineral exploration and development activities only. If an Aboriginal community wants other protections for specific areas, application must be made to other appropriate ministries or agencies. They, in turn, may require different information than what may be required by the Ministry for sites of Aboriginal cultural significance under the Mining Act.
The consideration of sites of Aboriginal cultural significance is intended to be a straight-forward process based on readily available information about areas known to an Aboriginal community. This policy and process do not require, duplicate or initiate land use planning, values mapping, archeological studies, or other similar processes, although information gathered through those processes may be submitted and helpful to ENDMin making a determination about any specific site.
Finally, ENDM’s consideration of sites of Aboriginal cultural significance is not intended to detract from any obligation ENDMmay have to consult with Aboriginal communities, nor to interpret or determine Aboriginal or treaty rights. For further clarity, lands eligible for consideration as a site of Aboriginal cultural significance for the purposes of the Mining Act need not be lands that would otherwise be protected by section 35 of the Constitution Act, 1982.
ENDMrecognizes that concerns about ownership and confidentiality of sensitive information are often an obstacle and disincentive to Aboriginal communities in identifying sites they wish to have considered for some form of protection.
For the purpose of withdrawals, ENDMrequires sufficient information on which to base a decision. Information collected will be considered, and classified as sensitive and confidential, and will be available internally on a need-to-know basis only. In appropriate circumstances, ENDMmay also share certain information with other ministries.
Areas that have been withdrawn from prospecting and mining claim registration will be indicated on ENDM’s Mining Lands Administration System (MLAS) Map Viewer but will not indicate the specific reason for the withdrawal or the information on which the decision was based (e.g.: “This area is withdrawn for reasons of its cultural, ecological or other sensitive nature"). The information contained in an application for a withdrawal will not become a part of the public record.
Information that ENDMgathers in considering whether to impose a surface rights restriction will necessarily be treated differently given that the claim holder who would be affected by the restriction is entitled to notice of any proposed restriction and to make representations to the ENDMabout the proposal.
Finally, ENDMis subject to the Freedom of Information and Protection of Privacy Act (FIPPA) and, despite efforts to maintain confidentiality, may nonetheless be compelled to disclose information that has been collected in support of a withdrawal or surface rights restriction in certain circumstances.
The criteria for sites of Aboriginal Cultural Significance used in this policy are set out in the Regulation in section 9.10, which is found below. This policy defines how the criteria will be interpreted and applied.
Sites that will be considered for withdrawal as a “site of Aboriginal cultural significance” must be 25 hectares or less. Lands that exceed this criterion are considered through ENDM’s processes for withdrawing lands. To further address confidentiality and sensitivity concerns, withdrawals of sites of Aboriginal cultural significance will generally be made in standard size and shape increments (four-sided polygons in increments of 4, 9, 16 or 25 hectares). The area withdrawn will be the minimum size necessary as determined by ENDMthrough dialogue with the community and will include a sufficient area of land surrounding the specific value to ensure its features or uses are appropriately protected.
Surface rights restrictions will be applied to the smallest area of land necessary to address the use and significance of the site identified and the boundaries will conform to the nature of the specific site rather than to a standard four-sided polygon. Please see the section below on “Consideration of Surface Rights Restrictions” for more information on how these will be reviewed by the Ministry.
The criteria above are intended to be interpreted and applied with flexibility, recognizing that these sites cannot always be defined with absolute precision. Aboriginal customs and histories vary and what may be of significance in one community’s tradition may not be in another’s. As such, when determining whether land is a site of Aboriginal cultural significance for the purposes of the Act and regulation, the ENDMwill accept the views of the Aboriginal community on the question of the land’s association with that community, subject to certain reporting requirements detailed below.
While each application will be evaluated on an individual basis, the types or categories of lands that are intended to be captured by the Act and Regulation include those such as:
Where a site does not fall neatly into the categories or types of sites listed above, other factors the Minister may consider in relation to determining whether a site should be considered a site of Aboriginal cultural significance for the purposes of the Regulation include:
Lands or areas not intended to be captured by the Act and regulation but for which other tools exist to address concerns that Aboriginal communities may have about adverse effects, include:
The Regulation is not intended to address lands that have been identified in land claims, treaty land entitlement cases, or for protection through Far North planning exercises. Those lands will continue to be considered for withdrawals or other measures through ENDM’s usual processes.
The mineral potential of the lands, or whether mine hazards exist, will not affect the decision to withdraw a site of Aboriginal cultural significance pursuant to this Policy but may be factors the Ministry considers under its usual processes for withdrawals under the Mining Act.
Where a Withdrawal Order is made under the Act, the area withdrawn must be depicted on MLAS Map Viewer to ensure prospectors are aware of lands that are not open for mining claim registration. Similarly, a surface rights restriction must be depicted on maps or other documentation sufficient to inform the claim holder of the area subject to the restriction.
The Regulation requires that lands being considered as sites of Aboriginal cultural significance be in a fixed location that can be delineated with precision on a map. Aboriginal communities will be asked to identify sites to ENDMwith map sketches or GPS coordinates sufficient to identify the required area on MLAS Map Viewer for withdrawals on a mining claim subject to a proposed surface rights restriction. The sketch or coordinates should be specific to the value or site for which the community seeks protection and should not include an additional buffer or boundary around the site. See application criteria above with regard to how decisions will be made with regard to the extent of the withdrawal or restriction.
To be considered as a site of Aboriginal cultural, ENDMrequires that the identification of the site be supported by the community as a whole.
Applications for a withdrawal should typically be accompanied by a Band Council Resolution, Community Council Resolution or similar documentation which confirms the community’s support and awareness of the application and the information submitted in support of the application.
Surface rights restrictions do not follow an application process, but similar documentation will be required before a determination will be made to place a restriction on a mining claim.
While an application might appear to meet the criteria of a site of Aboriginal cultural significance, the Ministry may consider whether other mechanisms exist which would sufficiently protect the identified value or significance of the lands. For example, restrictions or processes may exist under other legislation which would apply to the circumstances or the ENDMmay consider terms and conditions on an exploration permit to address the expressed concern.
The decision to withdraw lands from prospecting, mining claim registration, sale and lease, must be made based on appropriate and sufficient information. Equally, a decision to restrict a mining claim holder’s rights to use certain portions of the surface rights of the claim in question, must not be made lightly or without sound supporting information and rationale.
In the case of sites of Aboriginal cultural significance, ENDMconsiders Aboriginal communities themselves to be in the best position, based on their traditions, observances, customs or beliefs, to identify those areas that are strongly associated with their community for reasons of their historical, social, cultural, ceremonial or traditional use.
ENDMwill require Aboriginal communities to submit information sufficient to describe the nature of the site and its uses and significance to the community as well as information pertaining to the process used by the community to identify the site as a potential site of Aboriginal cultural significance. ENDMis not asking communities to generate new information or studies in support of the proposed site but, rather, to rely on existing information of known areas, readily available to communities. This may, however, require that communities record or transcribe stories or testimonials that have not previously been captured. Typically, documentation which will serve to satisfy ENDM’s information requirements will include:
In exceptional circumstances, including where supporting documentation is limited, ENDMmay, at its discretion, require further information collection, independent review, site visits with community members, or other measures prior to making a decision as to whether to withdraw lands or to impose a surface rights restriction.
This will be an application-based process that ensures the ENDMhas sufficient information to make an informed decision. Applications will be screened for completeness upon submission and must include the below requirements to be considered. If any of these items are not satisfied, the application will be considered incomplete and returned to communities.
The Ministry is committed to processing SOACS applications as efficiently as possible. If the above mandatory requirements are included with the application, the Ministry expects the application assessment and Withdrawal Order can be made within 21 days.
Note: Reopening Lands:
The Minister may consider reopening lands that have been withdrawn as a site of Aboriginal cultural significance pursuant to the Mining Act and this policy, including at the request of the community which originally sought the withdrawal and where supported by appropriate documentation and rationale as to why the lands no longer require the protection that had originally been sought.
A surface rights restriction is a last resort and will be used only in exceptional circumstances, where, for instance, agreement cannot be reached on voluntary measures to protect a value or feature or use, or where terms and conditions on an exploration permit are determined, in the sole discretion of the Minister, to be inadequate.
While agreement on measures to mitigate concerns are preferred, the Ministry can also consider site specific terms and conditions on an exploration permit that would address concerns, prior to resorting to the imposition of a surface rights restriction.
There is no application process. Rather, ENDM’s consideration of the use of surface rights restrictions as provided by subsection 51 (4) will typically arise through the notification and consultation processes undertaken after a mining claim has been registered and early exploration activities are proposed. See O. Reg. 308/12 and ENDM’s Policy: Consultation and Arrangements with Aboriginal Communities at Early Exploration.
Consideration of a surface rights restriction will not occur until all other measures have been considered to address the value or use identified. ENDMwill discuss concerns brought forward by Aboriginal communities and will facilitate dialogue with the claim holder in an effort to find mutually agreed upon measures to address any concerns. See ENDM’s Policy: Consultation and Arrangements with Aboriginal Communities at Early Exploration.
Where, in the anticipated rare case, a surface rights restriction is proposed to address a site of Aboriginal cultural significance; and despite dialogue and consultation that may have already occurred, the claim holder is entitled to receive formal notice of that proposal and to make representations to the Minister within 30 days of having received notice (subsection 51 (5)).
Where a claim holder makes representations objecting to a proposed surface rights restriction and the objection is based on, for example, challenges to the veracity of the identified site or, proposes alternate approaches to address concerns about impacts to the identified site, ENDMmay require additional information from communities or independent review of the information supporting the identification of the site. ENDMmay also encourage or facilitate dialogue between the community and claimholder, if that has not already occurred, to further discuss measures to mitigate concerns raised.
When it is determined that a surface rights restriction should be in place, a Withdrawal Order will be applied to the area. The Withdrawal Order does not affect the pre-existing mining claim. When the mining claim, with a surface rights restriction reverts to the Crown, for whatever reason, the area of the restriction will automatically be withdrawn under the withdrawal order.
Communities may request that withdrawn lands be re-opened for mining claim registration, and that request should be supported by appropriate documentation and rationale as to why the lands no longer require the protection that had originally been sought.
For any inquiries about the SOACS policy, please contact:
Ministry of Energy, Northern Development and Mines
Indigenous Relations and Reconciliation Branch
B3-933 Ramsey Lake Rd.
Willet Green Miller Centre
Sudbury ON, P3E 6B5
Toll Free Telephone: 1-888-415-9845
The Ontario Mining Act R.S.O. 1990, c. M. 14 and its regulations can be viewed on line at https://www.ontario.ca/laws/statute/90m14#BK57
35 (1) The Minister may, by order signed by him or her, withdraw from prospecting, mining claim registration, sale and lease any lands, mining rights that are the property of the Crown, and the lands, mining rights or surface rights shall remain withdrawn until reopened by the Minister. 2009, c. 21, s. 14 (1)
35 (2) In making an order under subsection (1), the Minister may consider any factors that he or she considers appropriate, including,
9.10 (1) Land, with a surface area of 25 hectares or less, may be considered as a site of Aboriginal cultural significance for the purposes of the Act if the following criteria are met:
9.10 (2) In determining whether a site of Aboriginal cultural significance should be the subject of a withdrawal order or an order to restrict the right to the use of portions of the surface rights of a mining claim, the Minister may consider whether other mechanisms are available and appropriate to protect the site. O. Reg. 306/12, s. 2.