January 28th, 2025
Authors: Gillian Chamberlain, Areej Safdar, Julia Singer, John-James Stranz, Kristen Theriault
In a 2023 ruling, the Supreme Court of British Columbia found that the province has a duty to consult Indigenous peoples prior to registering mineral claims on their territories. Similarly, the Supreme Court of Quebec recently confirmed that the Quebec government must consult and accommodate Mitchikanibikok Inik First Nation on existing mining claims before granting new claims.
Similar challenges to the regime prescribed in Ontario’s Mining Act are emerging. Although Ontario’s framework differs slightly from those in British Columbia and Quebec, these successful challenges provide useful precedent for evaluating what we know as “free entry” mining regimes.
Issues with Ontario’s Free Entry Mining Scheme
Ontario has seen a surge in permit applications for mineral extraction, particularly in Northern regions which substantially overlap with Indigenous lands and Treaty territories. Under Ontario’s Mining Act, any individual or company worldwide can register mining claims online after a brief course and minimal licensing fee. These claims are authorized without prior consent from surface landowners, including Indigenous communities, through the free entry mining system.
Once registered, claim holders are required to perform early assessment work, such as sampling, drilling, and geo-surveying, which disrupt the land. These activities have caused significant and cumulative adverse impacts on Aboriginal and Treaty rights, yet Ontario’s current mining scheme does not mandate Indigenous engagement before claims are registered.
Ontario’s scheme only requires perfunctory notification to Indigenous communities after claims are registered, typically in the form of a letter. The onus is placed entirely on communities to respond within a short timeframe despite each permit having unique considerations and concerns. This process, which Ontario believes meets the bare minimum of the duty to consult, leaves Indigenous communities overwhelmed and under-resourced to evaluate permits and address concerns effectively.
This free entry mining system lacks meaningful engagement before claims are registered and early exploration commenced. Meanwhile, Canada’s Critical Mineral Strategy, which seeks to position the country as a global supplier of critical minerals, exacerbates these issues. Mining development is accelerating while the constitutional and international obligations to consult and accommodate Indigenous communities fail to be addressed.
Legal Challenges to Ontario’s Mining Act
In July 2024, Grassy Narrows First Nation (GNFN) challenged the constitutionality of Ontario’s Mining Act and asserted its inconsistency with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). GNFN argues that Ontario breached its duty to consult by registering mining claims and allowing exploratory work on GNFN’s territory without first discharging its duty and obtaining consent.
The claim argues that Ontario has knowledge of GNFN’s treaty rights and the potential adverse impacts of mining activities. This triggers the province’s duty to consult, accommodate, and obtain free, prior, and informed consent, pursuant to section 35 of the Constitution Act, 1982 and Article 32 of UNDRIP.
In August 2024, six other First Nations filed a similar challenge, additionally asserting that Ontario’s Mining Act violates their equality rights under the Canadian Charter of Rights and Freedoms. They say that since Ontario’s scheme does not protect Indigenous peoples’ land interests, it directly discriminates against and disproportionately impacts them based on their identity.
These legal challenges signal a turning point for Ontario’s free entry mining system. Precedents out of Yukon, British Columbia, and Quebec have ruled in favor of First Nations in similar constitutional challenges. As Ontario faces mounting pressure, it is only a matter of time before Ontario’s free entry system collapses under judicial scrutiny, prompting overdue reform.
Indigenous Calls for Change
Ontario continues to enable and empower private actors to stake claims to minerals throughout Indigenous territories without seeking the informed consent of First Nations. Indigenous communities are inundated and burdened by mining claims, yet they are expected to facilitate resource extraction on their territories despite significant barriers, including continued colonial oppression, economic marginalization, and lacking critical infrastructure and drinking water services.
Indigenous governments across Ontario are calling for an end to the free entry mining system, a moratorium on the current mineral claiming process, and the cessation of any developments on Indigenous territories without their informed consent.
Ontario, and all of Canada, must restore the honour of the Crown and begin meaningful decolonization through reconciliation and good faith government-to-government negotiations. While Gitxaała v. British Columbia is a step in the right direction, the failure to meaningfully implement UNDRIP commitments continues to limit Canadian reconciliation efforts.
The downfall of this unconstitutional and colonial legacy presents an opportunity to uphold consent standards, ensure equitable economic and ecological outcomes, and implement UNDRIP commitments through the recognition of Indigenous sovereignty and the right of refusal.
