A year after being named Ontario’s first standalone minister of mines in 50 years, George Pirie is consolidating authority over his ministry. In March, Pirie, the former mayor of Timmins, Ont., introduced Bill 71, the Building More Mines Act, which hands Pirie decision-making powers over exploration and mine closures, once relegated to staff. 

A 35-year mining industry executive and former president and CEO of Placer Dome Canada, Pirie has been tasked by the Doug Ford government to encourage mining in the province; notably in the northern Ring of Fire region, amid growing demand for critical minerals such as nickel, cobalt and lithium, seen as crucial for the battery building needed to transition away from fossil fuels towards electrification. 

The act, which received royal assent in May, is currently undergoing public regulatory consultations as to how to put the legislation into effect. But Bill 71 faces criticisms from First Nations, non-governmental organizations and legal experts who say the minister has given himself too much authority over mine exploration and closures that should remain in the hands of technical staff. 

“I think it gives a heck of a lot of power to the minister — and much unfettered discretion,” says Elizabeth Steyn, assistant professor at the University of Calgary’s law school teaching a course on critical minerals, regulatory frameworks and geopolitics.  

The ministry did not respond to The Narwhal’s questions about Pirie’s technical expertise or whether the minister would receive technical briefings and recommendations from staff prior to making decisions on exploration and closure plans. 

There’s also the issue of the province’s duty to consult First Nations, with some Indigenous communities also displeased the act broadens requirements on everything from closure plans to financial assurances to cover the expenses of the closure. Bill 71 cuts off their access to information, they say, making First Nations wary of allowing mining in their territories despite potential economic benefits.

The legislation “just adds to the fear, it adds to the distrust that’s already there,” says Lawrence Martin, director of lands and resources at Mushkegowuk Council, which represents eight Cree communities along the James Bay coast. “It’s disrespecting everything that the people want to believe in the government to do, to help out with. But every step of the way, this gives them another reason to point out: ‘There we go again, we’re about to get screwed again.’ ”

Ontario mining minister has taken power away from technical staff and given it to himself

Among the most significant changes Bill 71 makes to the Mining Act is a provision that takes power away from two non-political staff and passes it on to Pirie. The bill would “permit the minister to exercise any power and perform any duty of a director of exploration ” — who oversees mineral exploration and permitting. The act also moves to “remove the position of director of mine rehabilitation” — which is to oversee the closure of mines and recovery of minerals from tailings and waste — and transfer this position’s decision-making authority to the minister. 

The two director positions are responsible for the beginning and end of the mining life-cycle respectively, and so have conflicting interests, Steyn says. 

Steyn, a former director of the mining law, finance and sustainability program at Western University in London, Ont., explains Pirie has centralized the responsibilities of these two positions into one person — himself, as minister. 

“The director of exploration wants to see the development happen. The director of [mine rehabilitation] has to deal with the consequences and the fallout. But [the minister is] taking all of the powers and consolidating them onto himself.” 

Eliminating the position of director of mine rehabilitation is particularly troubling in the context of remediating and re-mining waste, says Steyn. Mining companies can apply for a permit to recover minerals from tailings, and under the old act, the director of mine rehabilitation granted these permits on the condition the land would be improved with “respect to one or both of public health and safety” following its recovery. 

Under the new act, conditions for health, safety and environment must simply be “comparable to or better than it was before the recovery, as determined by the minister.” Steyn notes that not only does the act drop requirements to improve the land’s condition, but it leaves the question of whether the tailings are in a similar state prior to its re-mining up to the minister.  

“That’s a heck of a qualification,” she says. “It’s very subjective — it’s in the minister’s opinion.”

The broad standards also concerned Martin. “There’s a Cree word, mamash, which means ‘half-ass’ or ‘haphazardly,’ ” he says. “We can’t bring the land back to the way we found it. That’s understood. But the people don’t want to have it put back in place half-ass, either.” 

David Good, a professional geologist and visiting scientist-in-residence at Western University, says “the process of permitting a mine project is lengthy and complex.” Good, who was a former vice-president of exploration for several Ontario mining companies, says the decisions to approve projects are “by definition political, and the minister should have the skill and experience necessary to make such determination.”

The closest global legislative parallel Steyn could think of is in western Australia: there, the Aboriginal Heritage Act of 1972 enabled mining companies to apply to destroy Aboriginal heritage sites, requests which were reviewed by a committee before being decided on by politicians. “That minister basically rubber-stamped every request that came from a mine that affected sacred sites,” Steyn says, including the destruction of heritage sites at Juukan Gorge by Rio Tinto in 2020, which caused international outcry. 

“Now, fast forward to Ontario, and it’s giving the exact same kind of powers to the minister,” Steyn says. “The potential for abuse is so rife. It’s just unseemly for me in a balanced, democratic sense.”

“We are really dependent on the minister of mines being a very prudent, very wise person — somebody who’s absolutely not biased towards any party.” Steyn says, pointing out [Pirie’s] history as a mining executive. “We don’t have to wonder what camp he is in,” she says. “I’m not saying Minister Pirie will abuse it. But the potential is there.” 

Minister Pirie did not respond to questions from The Narwhal.

Ontario Ministry of Mines staff will no longer review closure plans

Under previous legislation, government staff with technical expertise reviewed closure plans to “flag concerns” if mining regulation requirements weren’t met. The new amendments will end that practice, which was put in place upon recommendations from the auditor general in 2015. Instead, “qualified persons” outside the government will be allowed to perform a review — while policy is being drafted to define just who is a “qualified person,” the ministry is currently proposing it be someone “authorized to practice in Ontario in the areas of engineering, geoscience, agrology or landscape architecture,” limited to “the scope of [their] professional practice.” 

This, Steyn says, means a mining company’s staff or hired consultants could be the ones reviewing closure plans. “Basically, you’re letting the mine sign off on their own closure plan. There’s no external review,” Steyn says. 

Good says, however, industry engineers, geologists and other “qualified persons” will be both trained and experienced, and “all of them take this responsibility very seriously. Nobody will risk their reputation or livelihood on shoddy or incomplete work.” 

Steyn points out though, in a volatile industry dependent on significant capital financing such as mining, “people get under extreme pressure from bad operators. If your boss says to you, ‘Sign on the dotted line or we are going bankrupt because we can’t keep raising financing,’ some people will cave under pressure.” 

Industry malfeasance is an exception, not a norm, Steyn says. “I’m not saying this will happen in every operation,” she says, adding “we only need one Mount Polley, one Brumadinho mine disaster.”

Such disasters, Good says, are “the hammer over the head” of every qualified person. “The mining industry is populated by many professionals with impressive records and the technical expertise to prepare closure plans,” he says. That said, he believes these plan assessments should be made public through environmental review processes. “Nothing would or should be hidden,” he says. 

First Nations say Ontario Mining Act fails to address the duty to consult

First Nations have highlighted several issues in the Building More Mines Act, saying the legislation fails the government’s duty to consult affected Indigenous communities. For example, the legislation enables what the ministry calls a “conditional filing order,” which would allow the mining minister, at a company’s request, to approve an incomplete closure plan “that does not contain all regulatory requirements,” with stipulations to complete unfinished elements of the plan at a later, specified date. 

Mushkegowuk Council released a public response to the act in April: it states that the use of a conditional filing order “would force First Nations into consultation on mining proposals with no clear assurance the impacts of the project would be adequately remediated. Such a scenario makes free, prior and informed consent an impossibility.” 

The act also loosens the requirements for companies to notify the ministry if plans for a mine change. Under old legislation, companies had to file a “notice of material change” to the director of mine rehabilitation if a project was altered or expanded, switched ownership or if “any other material change has occurred” that could affect the closure plan. If the director of mine rehabilitation position is eliminated, the mining minister will oversee a truncated change notification process.

Under the Building More Mines Act, companies will only have to file a notice of material change if changes “could reasonably be expected to have a material effect” on the closure plan. ” 

In April, Jordan Benoit, policy manager of the territorial planning unit for Grand Council Treaty #3, which represents 28 Anishinaabe communities in northwestern Ontario, wrote the Mining Ministry with a number of criticisms of the bill, including this elimination of most change notices: “This proposed amendment may let important [notices of material change] ‘slip through the cracks’ and not receive proper consultation. First Nation communities need to assess a [notice of material change] themselves … .”

This move also empowers Pirie, Steyn says, as the act now allows the minister to determine what constitutes a material change, “because everything is done by the minister.” Material changes of any kind should be evaluated “in the objective sense of the word, not the watered-down, ‘discretion of the minister’ version that we have here,” Steyn says. “There should be ongoing consultation between a mine and its stakeholders. This is international best practice.” 

“It behooves any responsible and prudent mining operator to follow international best practice rather than just to scrape by the provisions of the lowest denominator law,” Steyn adds. 

Will the Building More Mines Act actually lead to more mines?

Jordan Hatton, director of economic development at Bingwi Neyaashi Anishinaabek, says his nation on Lake Nipigon, north of Thunder Bay, “is a very pro-development community.” After pushing Bingwi Neyaashi Anishinaabek off its land to build dams and provincial parks, Canada only granted the nation reserve land in 2010.

 “We’re trying to rebuild from scratch,” Hatton says, adding the community has industry partnerships and agreements with companies such as Rock Tech Lithium and Imagine Lithium. 

Even so, Hatton says, the Ontario government’s loosening of mine requirements on everything from closure plans to financial assurances is “not going to build support among the Indigenous population in the membership of our First Nation or other First Nations.” He believes Bill 71 is “probably going to harm” the development of future mining projects more than help it.

Martin, of Mushkegowuk Council, says the legislation is “not a good way to sell this mining [to the region],” he says. “If people were able to feel any kind of comfort to accepting a mine, if they could see the proper, responsible way of setting up these processes, it would not be so bad.” He says communities at the southern end of James Bay are already coping with the aftermath of abandoned mines in their region; to the north, the most infamous case is Attawapiskat First Nation, which continues to deal with fallout from the Victor diamond mine run by De Beers, which failed to monitor mercury levels that seeped into the local water system.   

Hatton, Martin and the public statement by Benoit of Grand Council Treaty #3 all say Indigenous communities do not have the resources to adequately process the exploration agreements and consultation documents sent their way by companies, and to avoid further delays, Canadian governments should provide them more resources to hire staff. 

While the act’s changes might seem to save time and money for companies in the short term, Steyn says, potential legal challenges from Indigenous communities and non-governmental organizations could cause more delays in the long run. 

“I can assure you that a contested project takes a heck of a lot longer and can drain a fortune,” she says, adding she attempts to “walk a balanced line” considering the needs of Indigenous communities, non-governmental organizations and industry. “I’m all in favour of getting critical minerals, but we can’t be irresponsible in how we do this.” 

Steyn believes the legislation is a missed opportunity for the government to establish stronger First Nation and other stakeholder engagement.

“I don’t think it will get anywhere,” she says. “There’s simply too much that they are trying to do that’s not within their power.”

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Updated on June 21, 2022, at 4:58 p.m. ET: On June 17, the 21 nations of the Robinson Huron Treaty announced a proposed $10-billion settlement. The payment would come from the federal and provincial governments, both of which must approve the settlement before it can be finalized. In northeastern Ontario, a treaty dispute over 170 years in the making might finally be coming to a close. A legal trust known as the Robinson Huron Treaty Litigation Fund is seeking unpaid treaty annuities — annual payments to individual members of the 21 First Nations involved — in a case that could set legal precedents across the country by formally recognizing Indigenous interpretations of historic treaties. 

Since the treaty’s signing, the region has produced one of the largest nickel mining operations in the world, alongside historic copper, uranium, lumber and fishing industries. Yet the annuity has remained the same since 1875 — at only four dollars per person — despite a unique clause in the treaty that ties the value of the annuity to the expansion of resource development in the region. 

“We were supposed to have a true sharing relationship over the land that was ingrained right at the onset [of the treaty],” Chief Dean Sayers of Batchewana First Nation, one of the Robinson Huron communities, says. “Of course, it didn’t go that way. But now we’re in a position where we expect to see a true reflection of that original understanding.” 

Hailing from Parry Sound to Sudbury, and North Bay to Sault Ste. Marie along the shores of Lake Huron, the 21 First Nations in the trust are seeking to enforce the terms of their treaty with both the federal and provincial governments. 

Governments neglected the treaty for more than a century. Now, after more than a decade of preparation and litigation, the Robinson Huron communities are on the precipice of realizing the vision of their ancestral leadership to seek reciprocal compensation for resource extraction — and secure their nations’ existence for future generations. 

The history of the Robinson Huron Treaty of 1850

By the 1840s, Canada, then a British colony, was granting mining patents in the area of Sault Ste. Marie in northern Ontario. But the land was not yet the government’s to grant. The Crown had never made any treaty with the local Anishinabek to obtain any rights to their land. Chiefs Shingwaukonse, Nebenaigoching and other Indigenous leaders met with then-governor general Lord Elgin in 1849 in Montreal demanding a treaty and reminding the Crown of their past alliance in the War of 1812. 

But miners continued to flood the region, leading to further conflict that would escalate in November 1849, when Indigenous leaders evicted a mine camp at Mica Bay. Their demands were finally heard, though not before Shingwaukonse and others were arrested. The charges were eventually dropped and the treaty was signed a year later alongside the Robinson Superior Treaty — each treaty is named for the Great Lake region which it encompasses — with Crown negotiator William Robinson in September of 1850.

Essential to both treaties was the inclusion of an augmentation clause — a unique note in both treaties that said annual payments would increase if resource extraction revenues grew. The Robinson Huron Treaty says the Crown promises if “the territory … shall at any future period produce an amount which will enable the government of this province, without incurring loss, to increase the annuity hereby secured to them … shall be augmented from time to time.”

In plain language, according to Sayers, his people said “We’re going to share with you that copper, we’re going to share with you that gold, that silver, those minerals,” provided the Crown shares back. “It is a sharing relationship of our inheritance. And we expect that to be honoured as part of the promises that were made that treaty time.”

Since the treaty’s signing, the region has witnessed well over a century of commercial resource extraction: nickel in Sudbury, copper in Bruce Mines, fishing on Manitoulin Island, uranium in Elliot Lake and more. Since operations began in Sudbury, its more than 77 mines generated $330 billion in revenue, based on contemporary mineral prices. But the annuity was only raised once, in 1875, from $1.70 to four dollars per person, which members can still receive each year. In 2020, then-chief Duke Peltier of Wiikwemkoong Unceded Territory told TVO: “As hard as it can be to line up for that four-dollar payment on an annual basis, it’s a grim reminder to the Crown that the terms are not honourable.” Now, his nation and the other signatories could possibly receive billions in back-owed payments. 

The passing of the Indian Act of 1876 took precedence over treaty arrangements, giving huge control over Indigenous communities to the federal government and its Indian agents across the country. In the century-plus since, Robinson-Huron chiefs made numerous attempts to address the matter with both Canada and Ontario, since provinces handle resource extraction. The recognition of Treaty Rights weren’t formally codified until First Nations fought for their inclusion in the Constitution Act of 1982, and it would take decades of court decisions to put the Robinson-Huron communities on a solid legal footing to press forward with their case. 

In 2010, the Robinson Huron Litigation Trust was created, representing 21 First Nations that are treaty beneficiaries. The case saw its first day in court in September 2017, after all parties submitted over 30,000 pages of evidence, which “may well be the most comprehensive collection of historic and cultural material ever amassed on the making of the Robinson Treaties and the life and history of the Anishinaabe,” Ontario Superior Court Justice Patricia Hennessy wrote at the time.

For Sayers, the process has been a long time coming. “The evolution of different governments, society, legal decisions on the Canadian side, the evolution of Indigenous Rights being more recognized in the last 20 to 30 years — it’s all coming to a climax right now,” Sayers says. “It’s an incredible feeling to be a part of this and to continue with the implementation of the original spirit and intent of our relationship.” 

First Nations calculate compound interest while Ontario wants to subtract the cost of colonization

The case, Restoule v. Canada, is named for trust chair and plaintiff Mike Restoule. The trial was split into three stages: first to interpret the meaning of the augmentation clause, second to determine whether the treaty is subject to the statute of limitations and last to determine the compensation owed to the Robinson Huron Anishinabek. 

In 2018, the Ontario Superior Court upheld the Anishinaabe interpretation of the treaty — that its intent was to share the land and Crown revenues from it in a mutually beneficial manner and that the mechanism to share that wealth was the annuity, which was supposed to increase with growing resource development. “The best possible interpretation of the parties’ common intention … is that the Crown promised to increase the collective annuities, without limit,” Justice Hennessy wrote.

In the second phase, which wrapped up in 2020, the Ontario government argued pursuing the back-owed annuity was subject to a statute of limitations and that payment was the responsibility of the federal government. Hennessy disagreed: “Treaties are part of the constitutional fabric of this country. Simple contracts they are not.” Ontario appealed stages one and two and, after the Ontario Court of Appeals largely upheld Hennessy’s decisions, filed an appeal to the Supreme Court of Canada in 2022, which is set to be heard this fall. 

Despite the pending Supreme Court hearing, the third stage concerning compensation was set to begin in January of 2023. It has since been paused for ongoing out-of-court negotiations. 

While the Robinson Huron negotiations aren’t public, a parallel case is being brought to court by members of the Robinson Superior Treaty, which contains the same augmentation clause. In that case, according to the National Post, the province cites a report commissioned by the Crown to estimate the value of lost annuities, arguing that Robinson Huron signatories are owed $2.7 billion, while Robinson Superior signatories are owed $35 million. The province maintains the costs of infrastructure — for things like mining research, forest management and “colonization roads and railways, which of course the harvested resources could not be moved to market without,” as the Crown  argued in court — outgrew any revenues.

The First Nations in that case called an expert witness, Nobel Prize-winning economist Joseph Stiglitz, to assess the financial losses incurred by their communities. In early February, Stiglitz expressed skepticism at the Crown’s argument, saying if money was an issue, another solution was obvious. “Seeing all the losses, what would a reasonable actor do? Rather than having these lawsuits, [they would say]: ‘take the land back. We’ll save ourselves a lot of money by paying you to take the land,’ ” he says. “That doesn’t comport.” 

Factoring in compound interest that would have been earned had Indigenous recipients been able to invest their collective annuities, Stiglitz pegged resource extraction revenues in the region at $126 billion, of which the First Nations are owed 84 per cent — or over $100 billion. He acknowledged the “sticker shock” of such a figure, but said “compounding the significant deficiencies over 170 years is going to inevitably wind up with big numbers.” 

Since the Robinson Huron negotiations are private, Sayers could not speak to the specific terms of the settlement process. However, he says negotiations have continued even after the mediator, former senator Murray Sinclair, stepped away for health reasons. “We’re in a good place with the discussions. We’ve had ceremony and from our ancestral perspective, we are at the right place. We do have to work through issues with representatives of Canada and Ontario, and we are doing that.”

The Robinson Treaties could set a legal precedent for honouring Indigenous worldviews

While the augmentation clause is unique to the Robinson Treaties, legal experts say the case has wide-ranging implications for how courts could handle future treaty disputes across Canada. Hennessy’s stage-one decision dedicated over 3,000 words to outlining the local Anishinabek worldview: their spiritual beliefs, political and legal structures, using the expert testimony of local Indigenous historians and Elders to understand the intent of Shingwaukonse and others who signed the treaty. 

“We have not just some words from the court about listening to the Indigenous perspective on the dispute,” Michael Coyle, a law professor at Western University in London, Ont., says. “We have, enshrined in the court’s ruling, an equal recognition of the Indigenous perspective on what the treaty was intended to achieve.” 

Kate Gunn, a partner at First Peoples’ Law, a law firm dedicated to the rights of Indigenous Peoples, notes that Hennessy’s recognition of the treaty’s underlying intent “does open the door for other groups to be on a stronger footing,” when asserting their own historic treaty interpretations. Discrepancies between the text of a treaty and the Indigenous understanding of the treaty aren’t uncommon. 

“For so many Indigenous parties, regardless of what the written [treaty] text says, their position has always been that they didn’t give up all the rights to their lands and resources. Seeing how that’s addressed as part of this has been really significant for us.”

Both Coyle and Gunn say the real precedential impacts will come at the Supreme Court level. “Rulings in Restoule may well set an example for the amount of respect and attention that should be given to Indigenous understandings of what was at stake and what was agreed in historic treaty negotiations,” Coyle says. Even if they settle before the Supreme Court hearing, “it would still be a significant precedent, being a decision from an influential and respected court of appeal in this country,” Coyle says. 

Batchewana First Nation Chief Dean Sayers wants to renew Robinson Huron Treaty relationship

Sayers has been involved in the litigation since the trust was founded in 2010. The historical and spiritual significance of restoring the treaty relationship is not lost on him. One of his ancestors, Chief Nebenaigoching of Batchewana, signed the treaty himself. “Everything is aligning,” Sayers says. “The essence, the medicine of that [negotiation] table is incredible. Everybody sitting there, I believe, has an understanding that we are at a really incredible time in history right now.” 

The settlement will create economic opportunities and help improve community infrastructure and services, but “it’s so much bigger than the monetary component,” Sayers says. It’s about survival. “We know that we’re going to still have Ojibwe, Potawatomi, Odawa nations continue to flourish with language, culture into the future. We have an incredible tool with the implementation of this treaty so that we can see this unique worldview continue,” he says. 

“It is part of the secret to looking after North America: our water systems, our forest systems, our land systems,” he adds. “I do see the sun rising, and I can see a beautiful day coming for everybody on our lands here in Canada.”

Updated April 13, 2023, at 5 p.m. ET: This article was updated to clarify that some First Nations in the map area are not signatories to the Robinson Huron Treaty.

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