The Unconstitutionality of Canada’s Free Entry Mining Systems and the Ontario Exception

Abstract

The recent amendments to Ontario’s Mining Act have ushered in significant changes in the way mineral claims are acquired, explored and developed, within the free entry mining system in the province. The amendments, for the most part, aim to ensure that Ontario’s free entry mining regime complies with Aboriginal law, particularly with respect to the duty to consult required under section 35 of the Constitution Act, 1982. Despite the modernization in the law and the improved Aboriginal consultation under the Act, there are academic opinions, which maintain that the amended statute is still unconstitutional. This article makes an incisive review of the modernized Mining Act and its relevant Regulation. It also examines Ontario’s government policy on consultation with Aboriginal peoples. It takes a position different from that of existing academic opinions. It argues that the statute has become constitutionally compliant, especially because of the entrenched statutory scheme for Aboriginal consultation and a scheme for providing an immediate notice of a mining claim registration to any affected Aboriginal people. For these reasons, this article maintains that the unconstitutionality argument that is generally ascribed to free entry systems in Canada does not apply to Ontario's reformed free entry regime