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LLP who represented Solid Gold in its court fight with the Wahgoshig, says the new rules reinforce the image of a province washing its hands of its own duty to consult. ���They���ve simply pulled a Pontius Pilate and downloaded the obligation to consult to the industry,��� he says. Smitheman warns junior mining companies have neither the time nor the money to invest in consultation efforts at the exploration stage that he argues should be the government���s responsibility, and says it could turn investors off pumping money into the province. ���They should stamp the new act with something like ���investors beware,������ he says. ���The more obstacles and difficulties you have in a certain jurisdiction, the less the money flows. If you look at other jurisdictions in Canada, exploration is certainly a lot more encouraged.��� Mainville also has her doubts about the new regulations. She says a number of her First Nations clients have independently developed their own frameworks for dealing with mining companies, involving early talks over resource benefit sharing. ���Those are being ignored under the new regulations because the process doesn���t accommodate them in the consultation process,��� she says. ���Permitting almost gets in the way of those types of relationships being developed.��� She commends Osisko Mining Corporation and Rainy River Resources Ltd. for their culturally sensitive and cooperative approach to First Nations affected by their projects in northwestern Ontario ���I think that in a lot of ways there���s already some best practices that the ministry should have taken notice of,��� she says. At McCarthy T��trault LLP, Vancouver-based aboriginal law group head Thomas Isaac takes a more optimistic view of Ontario���s new exploratory rules. ���On their face, they read very well. The issue will be whether or not they���re implemented and carried out in a fair and transparent way. I go in totally optimistic,��� he says. Isaac says uncertainty over the rules of consultation have traditionally made Ontario one of the most challenging jurisdictions in Canada for mineral exploration. He says junior miners are willing to take on more of the heavy lifting if it means they can better predict the outcome of a permit application. ���If that���s the result, then it will be a good investment for companies,��� he says. ���But if it���s the same old situation, where the decision depends on the First Nation, what part of the province you���re in, or the political sensitivities of this particular week, then you haven���t got a level playing field, and it���s just another additional burden with little light at end of the tunnel��� the proof is in the pudding.��� Blake Cassels and Graydon LLP the side of caution when it comes to consultation with First Nations, in order to minimize the risk their projects will fail to get approved. ���The reality is that having local support is always a positive thing, and something most companies strive for,��� he says. He calls government involvement in the process a ���double-edged sword��� since they often operate on their own timetable, one which ���may not always align with your own.��� But Smitheman says it���s unfair to expect junior miners to invest large sums in consultation ahead of exploratory work, in the same way a larger, more established company might. ���Most of these companies are not much more than a couple of guys with a shovel. They���re hanging by a financial thread and they can���t afford to pay significant amounts of money to put in accommodations,��� he says. In September, Solid Gold won the right to appeal the Wahgoshig���s injunc- They���ve simply pulled a Pontius Pilate and downloaded the obligation to consult to the industry. NEAL SMITHEMAN, Fasken Martineau DuMoulin LLP partner Charles Kazaz says Ontario lags behind Quebec when it comes to mineral exploration. He credits 1975���s James Bay and Northern Quebec Agreement reached between the Crown, the Cree, and the Inuit of the region for giving all players a set of realistic expectations about the exploration process. ���There is a clear path, and yes, it takes some time to get through, but you can predict it to a certain degree,��� he says. ���For the first couple of years, there was a lot of mistrust between parties, but I think over the years, the relationship has evolved.��� Martin Ignasiak, a partner in Osler Hoskin and Harcourt LLP���s Calgary office, says many of his clients, which include oil sands players and electrical generation companies, prefer to err on ca na dia nl awy e rm a g . c o m / i n h o u s E tion at Ontario���s Divisional Court after a judge decided there was reason to doubt whether any duty to consult existed under the Mining Act in force at the time. The new regulations clear up that confusion by making clear that a duty to consult would now exist, but Jocelyn Kearney, a lawyer at Norton Rose Canada in Toronto, says the appeal will still be useful for companies that deal with consultation issues. ���Hopefully it will help clarify parameters of appropriate delegation by the government,��� she says. ���These new rules help to do that, but they only apply in the context of exploration, so there are other industries affected by the duty to consult where there isn���t such a framework in place.��� IH December 2012/January 2013 ��� 41

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