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Aboriginal Consultation for the Ontario Mining Act Modernization Process: Varying Perspectives on Whether the Consultation Process Works

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Aboriginal Consultation for the Ontario Mining Act Modernization Process: Varying Perspectives on Whether the Consultation Process Works Aboriginal Consultation fo r the Ontario Mining Act ModernizationProcess: Varying Perceptive on Whether the Consultation Process Works By Elysia Petrone Reitberger A Graduate Thesis Submitted in the Partial Fulfillment of the Requirements fo r a Master of Environmental Studies in Northern Environments & Cultures Departments of Geography and Anthropology Lakehead University May 201 1 Library and Archives Bibliothèque et Canada Archives Canada Published Heritage Direction du Branch Patrimoine de l'édition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre référence ISBN: 978-0-494-77405-2 Our file Notre référence ISBN: 978-0-494-77405-2 NOTICE: AVIS: The author has granted a non- L'auteur a accordé une licence non exclusive exclusive license allowing Library and permettant à la Bibliothèque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par télécommunication ou par l'Internet, prêter, telecommunication or on the Internet, distribuer et vendre des thèses partout dans le loan, distrbute and sell theses monde, à des fins commerciales ou autres, sur worldwide, for commercial or non- support microforme, papier, électronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriété du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette thèse. Ni thesis. Neither the thesis nor la thèse ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent être imprimés ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformément à la loi canadienne sur la Privacy Act some supporting forms protection de la vie privée, quelques may have been removed from this formulaires secondaires ont été enlevés de thesis. cette thèse. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. LakeheadUNIVERSITY OFFICE OF GRADUATE STUDIES NAME OF STUDENT: Elysia Petrone-Reitberger DEGREE AWARDED: MES- NECU ACADEMIC UNIT: Geography TITLE OF THESIS: Aboriginal Consultation for the Ontario Mining Act Modernization Process: Varying Perspectives on Whether the Consultation Process Works This thesis has been prepared under my supervision and the candidate has complied with the Master's regulations. Signature of Supervisor /"t�\(� 2-v1 \ Date ABSTRACT Attempts to engage Aboriginal peoples in resource and environmental management decision-making process, fo r the most part, have been characterized as tokenism (Bowie 2007). This has left Aboriginal peoples frustrated and disillusioned. This thesis uses a theory of civil engagement, Arnstein's (1969) ladder of citizen participation, as a framework to interpret the level of Aboriginal consultation conducted during the Ontario Mining Act Modernization (MAM) process. This case study gauged the current state of public participation practices by examining Aboriginal peoples' participation and influence in decision making. In August 2008 the Ontario Ministry of Northern Development Mines and Forests (MNDMF) initiated a consultation process to modernizethe Mining Act. The MAM sought to find a balance between the wants of the mining industry, Aboriginal peoples, environmental organizations and private landowners. My case study fo cused solely on the consultation processes conducted with Aboriginal communities and organizations between August 2008 and December 2010. To gain insight into this process I did a documentation review and I conducted 26 interviews with Ontario political leaders, Aboriginal leaders, lawyers, elders, economic developmental officers and MNDMF staff. My analysis fo und the MAM Aboriginal consultation was flawed and I positioned the level of participation in decision making ranging fromIn forming to Partnership rungs on Arnstein's ladder. Arnstein's framework was not entirely compatible to judge Aboriginal consultation in Ontario. I added detail to the ladder to make it more pertinent for Aboriginal case studies in resource management. I provide recommendations to improve consultation processes, such as, setting realistic timeframes, addressingcapacity issues and including Aboriginal peoples in designingthe consultation process. Unfortunately, I am doubtful they will be instituted because of the different interpretations of treaties and a governmental lack of interest in power sharing. I believe until such time as the provincial government is prepared to make major systemic changes to how they interact with Aboriginal peoples, consultation processes will remain unsatisfactory from an Aboriginal and citizen engagement perspective. Consequently, civil activism and legal action will be options for Aboriginal groups in the push to change specificlegis lation. Area of Research: Arnstein 's ladder, natural resource management, Crown 's duty to consult and accommodate, Aboriginal consultation, Ontario, mining 1 Table of Contents ACKNOWLEDGEMENTS ........................................................................................................... 4 ACRONYMS ...................... ............................................................................................................ S TERMINOLOGY .......................................................................................................................... 6 DEFINITIONS .............................................................................................................................. 7 CHAPTER 1: INTRODUCTION ............................................................................................... 9 PURPOSE AND OBJECTIVES ............................................................................................................. 9 RELEVANCE OF THE RESEARCH .................................................................................................. 12 THESIS STRUCTURE ........................................................................................................................ 13 CHAPTER 2: LITERATURE REVIEW ................................................................................. 15 HISTORY OF ABORIGINAL PARTICIPATION IN NATURAL RESOURCE MANAGEMENT ................................................................................................................................................................ 15 PUBLIC PARTICIPATION ................................................................................................................ 21 Figure 1: Arnstein's ladder of citizen participation including eight rungs and three categories (Source: Arnstein 1969) ..................................................................................................... 22 Figure 2: Levels of Co-management (Source: Berkes 1994) .................................................... 24 Figure 3: International Association of Public Participation: Public Participation Spectrum (Source: IAP2 2007) .............................................................................................................. 25 ABORIGINAL CONSULTATION ..................................................................................................... 26 CHAPTER 3: BACKGROUND ................................................................................................. 34 HISTORICAL CONTEXT: SITUATING THE CASE STUDY ...................................................... 34 THE OLD MINING ACT ..................................................................................................................... 41 MINING ACT REFORM ..................................................................................................................... 43 TABLE 1 Chronology of Mining Act Reform ..................................................................................... 45 CHAPTER 4: METHODOLOGY ......................................................................... , .................. 52 GROUNDED THEORY ....................................................................................................................... 52 CASE STUDY ....................................................................................................................................... 53 ETHICS ................................................................................................................................................. 55 DATA COLLECTION .......................................................................................................................... 56 ANAYLSIS ............................................................................................................................................ 58 CHAPTER 5: RESEARCH FINDINGS ................................................................................... 59 TABLE 2: Core Categories by Respondents ..................................................................................... 60 CAPACITY ISSUES ............................................................................................................................. 61 LACK OF KNOWLEDGE ............................................................................................................................
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