The tiny Ojibwa/Cree community of Kitchenuhmaykoosib Inninuwug (KI), Ontario, is losing more control of its traditional territory as the exploration company Platinex has garnered support from Ontario and the provincial justice system. The latest saga in the battle for mining on KI’s land has ended in a six-month jail term for its chief.
In a case which has been hailed as David (KI) versus Goliath (Platinex), Goliath has shown to have deeper pockets and the favour of the courts.
“We want our children and grandchildren to be able to continue our traditions of hunting, trapping and fishing,” said KI spokesperson Sam McKay, who was one of six people who were sent to jail.
“We are not afraid to go to jail to protect the environment at the potential mining site, plus the surrounding area which includes our Kitchenuhmaykoosib.”
The problem started a few years back when the potential of platinum deposits were said to have existed on the reserve’s land, near Big Trout Lake, Ontario. The community had a moratorium on mining development, but Platinex continued to stake and drill the land.
The territory in question is 15kms from the actual community of 1200 and is currently under a land-claim dispute with the crown.
“Resource development hasn’t worked in the past,” David Peerla, mining coordinator for the Nishnawbe Aski Nation told the Nation at the time.
“There is a legacy of mines on the territory that haven’t been cleaned up. In this particular case, there is concern that the exploration and drilling, and potentially a mine, will take place in a very sensitive watershed that drains into the Big Trout Lake, which is a critical part of their economy and activities.
“This project represents a very real environmental risk to their way of life,” he said. “And they have unresolved land claims that haven’t been addressed.”
Platinex responded by sending in a negotiator, who happened to be an ex-British Army officer. It was seen by the community as a strong-arm tactic.
When Platinex was refused entry into the territory by KI, it launched a lawsuit totaling $10 billion, which Platinex lawyer Neil Smitheman said was the approximate value Platinex would “lose” over the course of the mine’s life expectancy of 30 years. It was later reduced to $10 million, but that number was still enough to bankrupt the band council who are currently facing court fees totaling over $500,000.
“Part of what Platinex claimed in its litigation is it wants to create a treaty-free zone,” said Peerla. “In other words it wants to create a big band, 8000 plus acres, of area where no one can exercise their Aboriginal treaty rights.
“It also wants to create a buffer around that area. Basically no one from the community would be able to get within 200 metres of this zone. This would be a dangerous precedent for Aboriginal treaty rights around the country,” said Peerla.
On July 28, 2006, the Ontario Provincial Court granted an interim injunction to KI that was conditional on immediately establishing “a consultation committee charged with the responsibility of meeting with representatives of Platinex and the Provincial Crown with the objective of developing an agreement to allow Platinex to conduct its two-phase drilling project at Big Trout Lake.”
An agreement was never reached and by April 2007, KI sought an interlocutory injunction that would prevent Platinex from any further exploratory drilling.
“Ontario came to the table to talk about how many holes would be drilled, it wasn’t taking ‘No’ for an answer,” said Chris Reid, KI’s lawyer.
On May 1,2007, the court dismissed the suit, but ordered Platinex to adhere to certain protocol before commencing phase one of its drilling program.
Chief Donny Morris and his councilors were charged with contempt of court on October 25, 2007 and five months later, on March 17, 2008, they were sentenced to six months in jail for refusing to comply with the court ruling to allow Platinex to continue with its explorative work. They had set up a peaceful camp to keep workers out of their territory.
A motion to appeal will be brought before the courts in “a couple of weeks,” according to Reid.
“If they (KI) say they don’t want any development on their territory, the government says ‘that’s not an option,”’ said Reid. “The only thing it wants to discuss is where the drilling will take place and how much of a share the band will get,” said Reid, who added that in his opinion, the province of Ontario is unfairly favouring the mining companies over Aboriginal rights and concerns.
Aboriginal Nations are supposed to be guaranteed, by a Supreme Court of Canada decree, the right to be consulted and accommodated on development on their territory, even if it is under a land-claim dispute. However, a provision in the ruling states that First Nations do not have veto power and if the province sees fit to allow mining activity, it can do so.
Reid said that a test case could be made out of the jail terms to try and make the Supreme Court’s ruling about consulting Aboriginals for exploration clearer and fairer to Aboriginal groups. However, KI did not have the resources or the desire to be dragged into a lengthy and costly legal battle at this time.
“Not every problem can or should be solved through the courts,” he said. “Ontario could sit down and lay out what parts of the province are off limits to the mining industry. It chose not to because it wants to show that it is an ally of the mining industry, who will do whatever the industry wants it to do.”
On February 15, Robert Lovelace, former Chief of the Ardoch Algonquin First Nation in Ontario, was sentenced to six months in prison, plus $25,000 in fines, for refusing to obey a similar injunction.
Adroch land was staked and exploratory drilling approved by Ontario without consultation. Along with KI, Adroch has proposed a joint panel to recommend new approaches to mineral exploration on First Nations’ lands. Ontario premier Dalton McGuinty has yet to formally respond.
According to its website, “Platinex is a Canadian exploration company based near Toronto that focuses on carefully selected Platinum Group Element targets.” Platinex lawyer Neil Smitheman said that for his fledgling company, time is of the essence.
“If we can’t get on the property, we’re doomed,” said Smitheman. “We simply want to get on with what we’re doing and not get caught in this political football game with respect to land claims. It really has nothing to do with us, but we feel effectively that we’re a pawn between Ottawa, Queen’s Park and the First Nations.”
KI has gotten support from Aboriginal groups across the country.
“In one breath we hear Ontario talk about the importance of First Nations sharing in the wealth of the province’s resource revenues, and in the next breath they ignore Supreme Court of Canada rulings that say we need to be consulted by companies wanting to exploit our lands,” said Anishinabek Nation Deputy Chief Glen Hare.
“Meaningful consultation involves mutual respect, and not simply telling First Nations where you’re going to drill for ore or clear-cut forests. That’s not how good neighbours behave,” he said.
“In the event that this dangerously provocative trend continues, it will certainly provoke an ugly backlash of unprecedented proportions,” Grand Chief of the Union of B.C. Chiefs Stewart Phillip said. “Given these startling developments, what does the future hold for the First Nations of Ontario? Internment camps?”