[R-G] One First Nation Takes On the Ontario Mining Act

[Anthony Fenton]

There Is No Honour in the Crown

Tyler McCreary and Barbara Barker

One First Nation Takes On the Ontario Mining Act

Canadian Dimension magazine, September/October 2008 issue

http://canadiandimension.com/articles/2008/09/04/2021/

On May 28, after more than two months in jail, six members of the  
Kitchenuhmaykoosib Inninuwug (KI) First Nation in northern Ontario  
were released following a decision by the Ontario Court of Appeal. On  
March 17, KI Chief Donny Morris, Deputy Chief Jack McKay, councillors  
Sam McKay, Darryl Sainnawap and Cecilia Begg, and band member Bruce  
Sakakeep had been sentenced to six months in jail after they  
interfered with drilling for platinum on their traditional lands.

Despite their release, the problem for KI and other Aboriginal  
communities in Ontario remains essentially the same. There is a  
fundamental conflict between provincial law, which grants unfettered  
access to land in Ontario for mining development, and the government’s  
obligations under treaty to honour First Nations’ relationships to  
their traditional lands.

Located 580 kilometres north of Thunder Bay on Big Trout Lake, KI is  
an Ojibwa/Cree community that has occupied and used their traditional  
lands since time immemorial. Across the lake from the KI reserve,  
mineral exploration for potential nickel and chromite deposits began  
in the late 1960s. Results of early exploration did not favour  
development at the time, but in 1999 a new, junior exploration  
company, Platinex, became interested in platinum potential that  
earlier surveys may have overlooked, obtaining 221 contiguous mining  
claims in the vicinity of Big Trout Lake.

Current Ontario legislation prioritizes mining development over  
responsibilities to Aboriginal peoples. The Ontario Mining Act is  
based on what is referred to as a free-entry system. This system  
allows the mining industry to access the majority of the land in the  
province and make claims without consulting land users. This system  
fails to recognize the nation-to-nation relationship between the Crown  
and First Nations as treaty partners, and violates the government’s  
constitutional duties to consult with First Nations prior to making  
decisions that might affect their interests.
Jurisdictional Games

This also reflects the jurisdictional games played by the federal and  
provincial governments, which share sovereignty of the Canadian state.  
The provinces are slow to accept the obligations the courts impose on  
governments, invoking their jurisdiction over resources and the  
federal government’s jurisdiction over “Indians and lands reserved for  
Indians.” This is disingenuous and violates constitutional law. It  
also stretches conflicts out while development proceeds — and it  
forces First Nations to dig deep into shallow pockets to pay for legal  
challenges, even as the Canadian public pays for governments, via  
taxes, to litigate challenges to Aboriginal and treaty rights  
literally for generations.

In Ontario right now, First Nations communities are not recognized to  
have a right to determine what kind of development, if any, occurs on  
their traditional lands. First Nations communities, in the words of  
KI’s lawyer, Chris Reed, “do not ever have the right to say no to  
mining or mineral exploration.” He describes First Nations communities  
faced with a mining company exploring their land as possessing three  
options: be quiet and do nothing, negotiate a deal that mitigates the  
impacts and shares some of the benefits, or resist and go to jail.
The James Bay Treaty

KI is a signatory to the 1929 adhesion to Treaty 9, the James Bay  
Treaty. KI councillor Sam McKay states that his ancestors agreed to “a  
treaty of friendship and sharing.” Unable to speak English, they were  
unaware that in the written version of treaty First Nations released  
their traditional lands to the Crown. Regardless of what the treaty  
text may say, when Big Trout Lake (as KI was formerly known) reached a  
deal with the Crown, it agreed to share the land with the settlers —  
not to forgo its rights to it.

The treaty provided assurances that First Nations would both be  
allocated reserve lands and allowed to continue to access and use  
their traditional lands. According to the treaty commissioner’s  
report, one of the chiefs, Missabay, expressed fear that after signing  
the treaty his people “would be deprived of the fishing and hunting  
privileges which they now enjoy.” The treaty commissioners assured the  
assembled First Nations that their fears “were groundless, as their  
present manner of making their livelihood would in no way be  
interfered with.” Treaty 9 First Nations entered into the treaty to  
preserve their way of life and protect their hunting, trapping and  
fishing rights.

Treaties are nation-to-nation agreements that serve as a basis for  
relationships between First Nations peoples and Canada today. While  
Treaty 9 has a provision that allows the Crown to “take up” or use  
lands for mining, lumbering, settlement and the like, this process  
must be reconciled with the First Nations’ continued relationship to  
the land. The Supreme Court has recognized this duty, ruling that the  
Crown had an obligation to consult with the Mikisew Cree when it took  
up some of their traditional lands to build a winter road. The court  
ruled that the Crown is obligated to research the impact that proposed  
activities will have on Aboriginal and treaty rights, and to  
accommodate change, where possible. Since mining exploration could  
reduce and degrade the territory over which KI could exercise its  
treaty rights to hunt and fish, the government is honour bound to  
participate in good-faith negotiations with the community, a legal  
responsibility it cannot delegate.
Resisting the Platinum Prospectors

The Ontario government has, over the course of almost a decade, failed  
to uphold the honour of the Crown with respect to KI. In 1999,  
Platinex and the federal and Ontario governments received notice of  
KI’s treaty land entitlement claim. The Crown knew that KI had an  
interest in the lands they were permitting for exploration, yet they  
made no move to consult with the community — this, despite the fact  
Platinex expressed concerns to the government on a number of occasions  
that they were needed as a supervisory presence.

After filing their claim, KI issued a moratorium on resource  
development, including mineral exploration, to protect the lands.  
Unable to persuade KI to change their position, Platinex decided to  
move forward without KI’s consent. Platinex issued shares and raised  
further capital without communicating KI’s opposition to the investing  
public, and purchased leases adjoining its claims in February, 2006.  
That same month, Platinex mobilized a drill team on KI’s traditional  
land. After KI learned that Platinex was on their lands, members  
traveled to the Platinex camp to ensure that Platinex cease all  
exploratory activities. Following the confrontation, the drilling crew  
abandoned the drilling site and much of their equipment.

In April, 2006, Platinex filed a $10-billion lawsuit for damages  
against KI and sought a permanent order preventing KI from interfering  
with exploration activities. KI counter-sued for damages and an  
injunction against further development. While KI was initially  
victorious, obtaining an injunction against further development in  
July, 2006, the judge reversed his decision the following May, as  
continued delay threatened Platinex with bankruptcy.

On May 1, 2007, Justice G.P. Smith mandated negotiation and gave KI,  
Platinex and Ontario until the May 15 to implement a consultation  
protocol, timetable and memorandum of understanding. The sides  
exchanged drafts, but did not reach an agreement.
Justice Smith’s “Solution”

In the absence of an agreement, Justice Smith imposed a solution,  
allowing Platinex to begin its drilling program on June 1. KI  
continued to assert that they “want no such activity other than the  
traditional customary practices to be permitted on these lands,” and  
considered Platinex unwelcome in their community. When Platinex  
arrived on November 6, members of KI met them at the airport and  
threatened to arrest the Platinex representatives if they further  
trespassed on KI land. Platinex decided to leave, later bringing a  
motion for contempt of court against KI.

On December 7, 2007, Chief Morris told the court: “I stand by the fact  
that the land I’m in, on now, is our land. I believe God put us there.  
God gave us a language, the animals to live off, and we just don’t  
want to see development on that area.”

The court, however, took a hostile view of KI members’ active  
disrespect for Canadian law. Justice Smith argued, “If two systems of  
law are allowed to exist — one for the aboriginals and one for the non- 
aboriginals — the rule of law will disappear and be replaced by  
chaos.” He argued that Canadian law remains paramount, and that  
disagreement is appropriately voiced through the appeals process, not  
civil disobedience. But KI lacked the funds to prolong its legal  
battles with Platinex and the province. As a result, Justice Smith  
leveraged the maximum jail sentence against KI members to protect “the  
sanctity of the system of justice.”

It is hard to understand how the sanctity of justice is protected in  
KI’s experience. It seems that two systems of law do exist in Canada:  
constitutionally enshrined treaty and Aboriginal rights, and  
provincial legislation that operates oblivious to the nation-to-nation  
treaty relationship that created mutual obligations to be respected by  
both parties.
Ontario’s Bad-Faith Approach

Without a recognized right to control development on their territory,  
First Nations’ defence of their land has been criminalized. While good- 
faith negotiations between the Crown and First Nations are difficult  
at the best of times, in KI they have been badly compromised by the  
government’s lack of good faith. Platinex launched a $70-million  
lawsuit this past May against the Ontario government for failing to  
discharge its duty to consult KI, making the failure of the Crown in  
its responsibilities one of the few points of agreement between the  
company and the community.

KI has not been the only community struggling against the Ontario  
Mining Act. As a result of his community’s resistance to uranium  
development, Bob Lovelace, retired chief of the Ardoch Algonquin,  
served more than three months in jail before his release on appeal.  
The Court of Appeal ruled that the sentence was excessively harsh, and  
asserted that the outdated Mining Act “lies at the heart of the case.”

The Mining Act must be revised to reflect the Crown’s obligations to  
First Nations. Instead of further impoverishing Aboriginal peoples  
through lengthy court battles, the government needs to recognize  
Aboriginal law, title and rights, and to seek a mutually agreeable  
solution that respects the true spirit and intent of the treaty  
relationship.