Editorial: The grass keeps growing

The lawsuit duel between the Kitchenuhmaykoosib Inninuwug First Nation and junior explorer Platinex — detailed in our news story last week T.N.M., July 7-13/06) — shows the lengths to which competing land users have been pushed by the Ontario government’s failure to work through aboriginal land claims.

Treaty 9 was meant to last as long as the sun shines, the rivers flow, and the grass grows. The government’s work on a response to aboriginal claims under the treaties seems to be as lasting.

Platinex has sued the band for $10 billion for interfering with exploration work near Big Trout Lake in northwestern Ontario. The band had declared a moratorium on exploration in what it describes as its traditional areas, and forced the company out by protests. Platinex, if it cannot complete required assessment work on which it already has extensions of time, could lose its claims.

Now it seems to us that $10 billion is pretty steep for what Platinex shareholders could lose if the band’s moratorium is enforced at Big Trout. Stillwater Mining is worth about $1.2 billion and North American Palladium $500 million; imagining Platinex would have grown bigger than that is highly speculative. We’re content to think the lawyers have counselled Platinex to ask big in their statement of claim.

But that kind of writ — writ large, you might say — also gives the opponents of the project a chance to sell the picture of big, bad multinational Platinex shaking down an impoverished Cree band. That kind of spin has already appeared in the politicized “alternative” press and will spread to the mainstream in the usual fashion. Other one-desk, one-phone juniors have been portrayed that way before.

Kitchenuhmaykoosib’s response was a $10-million suit of its own (in its way, an equally laughable sum, given Platinex’s $2-million market capitalization). The band has said its quarrel is not so much with Platinex as with the Ontario government, which has been named as a third-party defendant.

With the suit, courtesy of treaty-rights specialist firm Olthuis Kleer Townshend, came a constitutional challenge to the Mining Act, under section 35 of the Constitution Act, 1982.

Section 35 states, oh-so-helpfully, that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” From that, and from the later decision of the Supreme Court in Mikisew Cree First Nation vs. Canada, in which the Court held that the Crown is obliged to consult with Treaty bands when treaty rights may be adversely affected by the actions of the government, comes the argument that the Mining Act fails to provide for consultation. But nobody has made a credible argument that the decision places a duty on the Crown to give up existing principles of free entry.

So the fear that has been expressed that the right to mine what you find will evaporate if the band succeeds in its Section 35 challenge may be overblown. But the fear that bands can shut down a lawful mineral exploration or mining project by unilateral action is not. Not in Ontario, not after Caledonia.

The Ontario government is already setting the worst example possible in dealing with aboriginal land claims: the Douglas Creek Estates project in Caledonia, south of Hamilton. There, a group that claims to speak for the Six Nations Confederacy — but whose credentials on that score seem to fade in and out with the vagaries of Confederacy politics, and whose principal line of business appears to be cigarettes and gaming, if not worse — took over a housing development at the end of February and have occupied the land and barricaded major road and rail links ever since, in defiance of a court order.

What did the province do? Enforce the law? Hardly. It dithered over sending the police in and appointed a negotiator, former premier David Peterson, implicitly accepting the occupiers’ contention that Canadian courts have no jurisdiction over aboriginal lands or citizens. (The idea is rubbish, even having no basis in that very pliable concept “international law.” But we cater to it, and to our considerable cost.)

The government then bought the land from the developers, Henco Industries, for an amount to be settled later, based on fair market value. The solution was no solution: it was a way for the spineless and directionless McGuinty government to make the crisis go away, with taxpayers footing the bill. Never mind, it’s for the good of us all.

That won’t work for mineral rights, any better than Lands for Life did. Does the province plan to buy everyone’s claims back? (Mineral valuation specialists, call your agent. Or hire one this minute.)

Will it defend its own Mining Act? In the courts, perhaps; but very likely not on the ground. And it is naive to think that the Treaty 9 bands — even though they have shown a great deal more respect for the law than the Confederacy has — haven’t absorbed the lesson of Caledonia. If they decide arbitrary occupation backed up by the threat of violence works, and has no bad consequences for them, the government will send in the Provincial Police to stand around and watch, and appoint some former Liberal politician to jaw with the occupiers.

That can’t be allowed to happen, and there is a way forward that grows out of Mikisew. It’s not to overturn the Mining Act or to destroy free entry as a principle in law. It’s to bring in a standard program of consultation on all Treaty 9 lands. (Both Donald Bubar of the Prospectors and Developers Association of Canada, and Garry Clark of the Ontario Prospectors Association, made similar points in our news story about the Kitchenuhmaykoosib dispute.)

Here are some things we’d like to see. First, licensed prospectors should keep their right of free entry, and any lands where free entry will present a treaty problem should be clearly identified — either by a withdrawal from staking or by a land caution. There should be no after-the-fact discoveries of treaty rights.

Second, the treaty bands should have a representative at ground level in the Mining Lands Section, with the specific duty of keeping bands informed about exploration activity and keeping licence holders informed about competing land uses from the bands.

That appointee could also draw the important distinction that exploration is a very different thing from mining, that the one does not always mean the other, and that there is no bottomless well of impact benefits to draw from a drill hole or two. And he might save a few Agusk Lake incidents from happening again.

Third, that when you find a mineral deposit, it should be yours to develop, subject to a proper impact benefits agreement with the locals. In this, a boilerplate agreement consented to by the bands — a Treaty 9A, if you want to call it that — would make clear a lot of things that are now very murky. And — if the government cares at all about northern development — the benefits should fit the budget of junior developers. Not everybody is Inco.

Last, the bands themselves have to back up what they say about development. We are used to hearing that local people want development, but want it to be responsible, and want to have a say; Vernon Morris, chief of the Muskrat Dam band, said as much in our news report.

But that means no more press releases headed “Far North Peoples walk 2,100 km to say no to mining.” What part of that “no” were we meant to misunderstand?