Court battle brings native land rights to fore

A conflict over land in northern Ontario that has seen a junior explorer launch a $10-billion lawsuit against a First Nations community could have major implications for the mining industry, including changes to the way claims on First Nations territory — which comprises about two-thirds of the province — are staked.

The 1,300-member Kitchenuhmaykoosib Inninuwug (KI) First Nation, is being sued by Aurora, Ont.-based Platinex (PTX-V) for interfering with its exploration program near Big Trout Lake, 580 km north of Thunder Bay, Ont. The company says although it did nothing wrong and its claims were acquired legally, protests by community members — who have land claims pending on parts of the property — forced Platinex to abandon its camp just one week after it started drilling for platinum group elements in February.

Until its claim for damages can be heard, the company has applied for an injunction against KI members so it can access the property.

“From Platinex’s point of view, either the claims were properly issued — and if they were, then we’d like to be able to continue to exploit those claims — and if they weren’t, then we’ll have to have a discussion with the government if they didn’t have the authority to issue those claims,” says Neal Smitheman, a lawyer representing Platinex.

In the meantime, the recently listed company — whose shares have plunged from a high of 60 in February to less than 20 at presstime, mostly on the heels of the dispute — says it needs to continue exploration as soon as possible to stay afloat.

Platinex president and CEO James Trusler argues the case is of life-or-death importance not only to his company, but to the entire industry.

“If we don’t get this injunction, the mining industry in Ontario will collapse because there won’t be one claim that’s in good standing,” he told The Globe and Mail recently.

Meanwhile, KI says that its very way of life is in danger.

“What is at stake (is) basically the right for our First People to exercise their aboriginal treaty rights,” said KI spokesperson John Cutfeet during a recent press conference at Queen’s Park.

KI says that it was never properly consulted about the project, and although the community has launched a counter-suit against Platinex for $10 million and its own injunction to keep the company off the land in question, it lays responsibility for the dispute squarely at the feet of the provincial government.

“(The government is) choosing to ignore the highest law of the land, which is the Canadian Constitution,” Cutfeet said. “Although aboriginal treaty rights are recognized and affirmed in section 35 of the Canadian Constitution, these governments (federal and provincial) continue to stick their heads in the sand and pretend that those rights do not exist. By their inaction, they create conflict.”

Constitutional challenge

KI has launched a separate legal action challenging the constitutionality of the Mining Act, which is says fails to protect treaty rights. The First Nation has also launched a third-party claim against the government, which is essentially an attempt to redirect the Platinex suit. The claim could make it to court sometime next year.

A decision on the injunctions is expected soon from the Superior Court in Thunder Bay. The case was heard over two days in late June.

Although cases such as this are often portrayed as a battle between industry and First Nations, Don Bubar, chair of the aboriginal affairs committee of the Toronto-based Prospectors and Developers Association of Canada, says that’s not accurate.

“The issue is really between First Nations and the government over land claim issues and Platinex is really just caught in the middle as a sort of victim of that issue,” he says.

Shin Imai, a professor at York University’s Osgoode Hall Law School, and a specialist in aboriginal law, says there’s no question that the province was in error for issuing permits for exploration without first consulting KI.

Recent Supreme Court decisions, most notably the Mikisew Supreme Court ruling in November 2005 confirmed that the government has a duty to consult and accommodate aboriginal stakeholders before it allows development that could affect native treaty rights such as hunting, fishing and trapping on treaty land. The Mining Act, however, allows the province to issue permits for exploration without any consultation with affected First Nations.

The situation can be problematic for companies working on First Nations traditional territory. Even after following the rules, companies could find themselves in trouble.

Imai says companies in Ontario should follow the lead of firms in British Columbia, which are pushing for their province to comply with the rulings.

“They’re putting pressure on the (B.C.) government saying: ‘Do this right. Don’t get us halfway involved and then find out that because you haven’t done a good job, we’re screwed.'”

While court rulings have made it clear that the government is responsible for consultation, the Ontario government is still in the process of developing guidelines that would help it meet that obligation. It is currently seeking input on draft guidelines from aboriginal groups and industry, and says they should be available sometime this year.

Until then, some companies may find themselves in limbo.

“That’s a bit of a problem because we still don’t know where we are with what we have to do to consult as industry,” says Garry Clark, president of the Ontario Prospectors Association.

End to free entry?

As for the potential implications of the Big Trout Lake conflict and ensuing lawsuits, the industry is divided on what it could mean for miners. Although Clark says the case could put an end to “free-entry” staking — which means anyone can stake land freely at any time on Crown land — contrary to Platinex’s claims, it would not likely devastate the industry. Instead, it could lead to other, less intrusive forms of staking, such as map-staking, which is used in other jurisdictions.

The worst-case scenario for the industry, Bubar says, would be any change that results in less security over claims than is currently enjoyed under the free-entry system.

“When you invest in exploration and development, you know you’re going to have title to the minerals at the end of day,” Bubar says of free entry.

On the plus side, Bubar says the case could result in greater aboriginal participation in the industry — something he’s been advocating for.

“Once that’s achieved on a more widespread basis, then these conflicts that arise between First Nations and mineral companies will start to fall away,” Bubar says.

Clark, too, sees a potential positive outcome to the case.

“If it all falls on the ministries to consult, that could be good for industry,” he says. “Then the ministries would actually have to go in and spend the time to get the communities to understand what’s going to happen (with) exploration.”

But most important for industry, Clark would like to see some formal guidance on working with aboriginal communities.

“We’re used to working through these things in the industry, but we do need some direction from the governments and from the First Nations on how they want us to deal with working in their traditional lands.”

Muskrat Dam

Platinex is not the only resource company to find that it’s stepped on the toes of northern Ontario aboriginals lately. In April, exploration activity by De Beers around the Agusk Lake area disrupted a seasonal goose and caribou hunt by members of the Muskrat Dam First Nation.

Muskrat Dam Chief Vernon Morris says the activity, which included helicopter surveys, has caused “extensive hardship” for his community of 350.

“A jug of milk in the north is fifteen dollars,” he says. “We need our traditional food sources for the health of our families and our children. We cannot have our customary territory and our life on it disturbed to the point where we can
not get our livelihood.”

Muskrat Dam and KI were among a number of communities that declared a moratorium on mining in their traditional territories last October.

Although De Beers says it did meet with multiple aboriginal communities before conducting its exploration program, it simply didn’t know that Agusk Lake — over 100 km north of Muskrat Dam — was part of Muskrat Dam traditional territory.

Still, there are plenty of examples of aboriginal communities and miners working together in Ontario’s north. Recently, De Beers began construction of the Victor diamond mine in northern Ontario, but only after signing employment and impact benefit agreements with the Attawapiskat First Nation.

Even Morris says his community recognizes the importance of resource development as a potential source of wealth and hasn’t ruled out mining on traditional lands.

“We are in support of development (but) it has to be a balanced approach,” Morris says. “We want to be meaningful participants in determining the future developments on our homelands and territories.”