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LAW REFORM: THE MINING ACT, URANIUM & NATIVE RIGHTS

by Elisha Rubacha

These issues are all questions of priority; health, nature, and the opinions of those who feel it is their sacred duty to protect the environment, all overruled by the money to be gained from mining. The recent land claims made by Frontenac Ventures Corporation in Lanark County and Frontenac County for potential uranium mining have raised concerns about property rights, the negative impacts of mining, and the government’s breach of its duty to consult the local native community prior to registering the company’s land claim.

Many property owners are completely unaware that they own only the surface rights of their land, and that the government controls the mineral rights. Nor are they aware that with just 24 hours notice, exploration can occur on land that a prospector has made a mining claim on. This could mean clearing trees, trenching, drilling or even blasting, in order to collect samples. Interestingly, the requirements for gaining a license to prospect are minimal. I, being 18 years old, could become a prospector for a fee of $25.50, allowing me access to almost all private and public land with available sub-surface rights. The free entry system, under the Mining Act of Ontario, gives prospectors the right to access the majority of land in Ontario, and record claims without consulting land users. The provincial government can not deny a mining lease, which provides security of title on the land for 21 years or more, assuming the prospector pays the fee of $3 per hectare, per year for mining and surface rights. When the mine is to be developed, surface rights owners may be obligated to sell their property. This system assumes that mining is the best use of land, and prevails over private property interests. The mining industry, unlike other industries, is not required to consult with municipal councils, or adhere to their official plans and policies. They have the right to gain access to, or redirect water by whatever means necessary, even if the water is on, or overflows onto, a property owned by another person. Free entry, an old European system designed so royalty had rights to any and all minerals, violates and destroys private properties, and can cause long-term damage to the environment. Bedford Mining Alert envisions responsible mining practices that respect property owners, the environment and regional land use decisions. They’ve been working for years, gaining support, but have made no change in the Mining Act.

Similarly, in the local uranium dispute, little has been accomplished, as the province refuses to put a moratorium on uranium mining, and Bob Lovelace, former Ardoch chief, is in a maximum security prison for protecting the land, despite the peaceful nature of his protest. When my mother, Donna Dillman, spoke to Premier McGuinty during her fast to stop the mine, he told her uranium was needed to keep the lights on in Ontario and seemed surprised to hear that about 85% of Canada’s uranium is exported. Only 14% of Canada’s electricity is produced by nuclear power plants, making it unlikely that Ontario is reliant on uranium for energy purposes. Though we were denied a moratorium, something good did come from my mother’s 68 days without food. Her “Bring Grandma Home” campaign, taking place both on the potential mining site, and in Queen’s Park, drew the attention of many well-known groups, such as the David Suzuki Foundation, Greenpeace and Sierra Club, who are now assisting the Community Coalition Against Mining Uranium (CCAMU) with their citizens’ inquiry into the impacts of the uranium cycle. The research will cover the entire process; claim staking, exploration, mining, transportation, processing, waste, and uses (power generation, weapons, medical) and would address public and environmental health and safety, social responsibility, economics, political responsibility, and self determination of a community in relation to each part of the cycle. The mere exploration risks releasing cancer-causing radon gas into the air and water, threatening the health of not only the local community, but communities downwind and downstream. Tailing ponds, the pools of left-over sludge from the extraction of uranium from the mined ore, are the ultimate result of mining. These ponds are covered with water or clay to reduce radioactive emissions. In the Elliot Lake area in northeastern Ontario, there are approximately 130 million tones of this substance that will be dangerously radioactive for thousands of years. The town is now being marketed as a retirement community.

The Natives, my mother, and countless others, are still struggling to stop uranium exploration here, and their one hope lies in the government’s failure to consult the local native community. The duty to consult and accommodate has been seen in Haida Nation v. British Columbia, Taku River Tlingit First Nation v. British Columbia, Mikisew Cree First Nation v. Canada and R. v. Sparrow, and is based on the principle that the Crown must act honourably in aboriginal land and resource issues, but this duty was ignored by Justice Douglas Cunningham who ruled in favour of Frontenac Ventures, after Bob Lovelace refused to abide by the terms of the previously imposed injunction and blocked the company from drilling test holes. "I am in a dilemma,” Lovelace said, “I want to obey Canadian law but Algonquin law instructs me that I must preserve Creation. I must follow Algonquin law." Others in contempt of court, both natives and Caucasian residents, are awaiting sentencing. At appeal, the duty to consult angle will be argued again.

Law reform is not easy. One man blocking miners or one woman refusing food is not enough. It seems that even working in great and growing numbers does not make change, but it can. Women can vote, all races have equal rights, same-sex couples can marry, but that which we should protect is still ignored when it becomes a hurdle that hinders money-making. Like the natives, it is our responsibility to protect our environment and consequently, future generations. As Thomas Jefferson once said, “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”


References

Bedford Mining Alert. (n.d.). The issues. Retrieved February 28, 2008, from
http://www.bedfordminingalert.ca/

Campbell, K. (2004). Mining's privileged access to land: a free entry backgrounder. Retrieved February 28, 2008, from
http://www.miningwatch.ca/index.php?/Free_Entry

CCAMU. (2007). Factsheet on Uranium Radioactivity and Human Health. Retrieved March 9, 2008, from
http://www.ccamu.ca/fact-sheet.htm

Christian Peacemaker Teams Canada. (2008). Bob Lovelace to serve six months in jail. Retrieved March 2, 2008, from
http://sumoud.tao.ca/?q=node/view/983

Stewart, C. (n.d.). The honour of the Crown: the Supreme Court of Canada addresses the duty to consult First Nations. Retrieved March 2, 2008, from
http://www.sms.bc.ca/logo/2004/winter/winter2004-1.html

Special thanks to lawyers Chris Reid and Stephen Reynolds, as well as Bedford Mining Alert’s Marilyn Crawford, and my lovely, overworked mother for helping with research and disambiguation of said-research.