The Tail wagging the Dog

Linda Kamerman, the Ontario Mining and Lands Commissioner, in the Neskatanga First Nation (Order on Party Status) decision, has made it quite clear that neither a federal nor provincial environmental assessment nor any First Nation negotiations need to be completed before the OMLC decision in the case of 2274659 Ontario Inc. v. Canada Chrome Corporation and MNR.

"The Neskantaga say that they should be added as a party because the decision to be made by this tribunal is a part of a larger approval process that, since it involves the Crown, triggers consultation with the First Nations. This tribunal’s decision could “move the ball forward” as far as the overall project was concerned. Mr. Kirchner’s submission on this point was informative and articulate. He readily admitted that he and his client had come to understand that the matter before this tribunal was not the actual granting of an easement. But he said that in no way took away from his argument that the proceeding and the application were a part of a broader application. He repeatedly made reference to this point. The consultation process was triggered by the fact that the Crown was involved in the project. Mr. Kirchner made repeated references to the proposed chromite mine, to the proposed road and the effect that granting an easement would have on his client’s rights. This tribunal’s work was but one approval step in the whole process. This is where the tribunal believes that the Neskantaga argument fails and not only for the fact that this tribunal’s decision only affects a mining claim holder’s right under the Mining Act.

The cases presented to the tribunal by Mr. Kirchner all involve some action of the Crown. This is the key. The tribunal is not “the Crown” here, nor is it making a Crown decision. It is an independent inferior court of review and as such it is determining whether a mining claim holder’s refusal to consent should stand in the way of an application for disposition. The Mining and Lands Commissioner is acting alone and independently of the Crown. It could not be otherwise.

Mr. Kirchner’s logic properly applies to the Minister of Natural Resources’ decision to grant an easement and there has been information provided to this tribunal to satisfy it that a consultation process is a necessary component to that decision. This tribunal finds no support for the granting of party status as a result of the Neskantaga “big picture” argument The tribunal’s decision as to whether the mining claim holder’s right described by section 51 of the Mining Act should be affected is actually a necessary precursor to the consultation process. In his affidavit, Chief Moonias described the need for “a full regional process that properly considers the infrastructure needs of northern First Nations….” A decision by this tribunal is needed now in order to make that process fully “regional” and to determine early on who is involved and in what capacity. As the MNR’s Mr. Burke put it, the Ministry cannot operate in a vacuum. While the tribunal sympathizes with Neskantaga’s argument that processes involving decisions concerning its traditional territory are proceeding without recognition or invocation of its constitutional right to consultation, the tribunal cannot behave like the proverbial tail wagging the dog in sympathy. It is merely making a very discreet determination as to a mining claim holder’s rights under the Mining Act and is not jurisdictionally empowered to consider wider issues encompassing the broader mining community and the proposed mining projects when making that determination.

Should the Neskantaga be granted the role of “interested person” as an alternative? The tribunal is of the view that the phrase “interested person” as found in subsection 51(4) does not have a wide meaning. It does not lend itself to opening up a section 51 hearing to the general public. This finding arises out of the earlier finding regarding the singular scope of section 51 and is supported by the narrowness resulting from a statutory interpretation of the actual provision. If all that the section is dealing with is a mining claim holder’s refusal/failure to consent, then the parties involved will be the mining claim holder and whoever sought that consent. Occasionally, there will be the need to notify those who can properly be called “interested persons” – for example, in the case of The Improvement District of Gauthier v. Egg (7 M.C.C. 282), notice of the hearing was given to a credit union that had filed a certificate of interest against the mining claim and another individual who had filed a lien under the Construction Lien Act, 1983. Neither of those individuals appeared at the hearing. These people obviously had a specific interest in the mining claim and could have presented information regarding their interests should they have felt it necessary.

The logical interpretation of the phrase “interested person” should reflect the fact that a section 51 hearing is dealing only with a mining claim holder (or holders) and a person (or persons) who seeks to acquire some right to the surface rights. These are the recipients of a notice of hearing under the section. It may be that information comes forward to indicate a need for other interested persons to be heard (such as the credit union or lien holder in the cases cited earlier). The Neskantaga can make no such assertion regarding the mining claims that are the subject of this hearing. Opening up the hearing to the general public is not contemplated given the narrowness of the issue. The statutory provision specifically provides that it is the tribunal who must determine ahead of time who is an interested person and provide notice of the proceedings to that person (or persons). This is not akin to an environmental assessment process or even a public consultation process found in Part VII of the Mining Act. The drafting is clear that it is a very limited and circumspect provision and is not intended to cast a wide net.

Nor can the Neskantaga provide any better information with respect to the plans that the mining claim holder or applicant have for the surface rights. This will come from those two parties themselves. The tribunal will assess and weigh the plans of the mining claim holder and those of the applicant and make a determination as to whether the applicant can proceed to seek a disposition under the Public Lands Act without the consent of the claim holder. The tribunal cannot foresee any need for the Neskantaga to play a role in that process.

The tribunal’s role will be to take into account the interests and intentions of the mining claim holder in terms of the Mining Act, as well as the interests and intentions of the applicant seeking access and decide if the applicant’s request for disposition should be processed in the face of a refusal by the mining claims holder to consent. The result will be just what the Neskantaga are seeking – a holistic approach to the assessment of the project vis-à-vis their rights. All the parties will be assembled (whether Cliffs is successful or not) and once the MLC’s final decision is made, the Minister of Natural Resources will be in a position to proceed with its consultative work, also from a holistic and comprehensive perspective.

Mr. Kirchner indicated that should party status be granted, he will be arguing that the tribunal hearing be stopped pending completion of the consultation process. This highlights another flaw in his argument. Were the process to be stopped before knowing who should be at the proverbial table, how would that lend itself to a holistic approach? It makes no sense to interpret the decisions he presented to come up with this result. How could the consultation process be carried out without knowing the surface rights status of all interested parties?"