First Nation court action against Ontario could invalidate all mining claims in the province
A court action launched by Grassy Narrows First Nation against Ontario could invalidate all mining claims in the province, a lawyer representing the Indigenous group said – a scenario that could cause havoc for the industry.
Grassy Narrows on Friday served Ontario with a notice of application asking the Ontario Superior Court to mandate individuals and companies to consult with the First Nation before seeking mining claims.
The Globe and Mail earlier in the week reported that the legal action was pending.
An Anishinaabe First Nation, Grassy Narrows is located about 80 kilometres north of Kenora in Northwestern Ontario. Its traditional territory covers approximately 7,500 square kilometres within the Treaty 3 area.
More than 10,000 mining claims have been issued in its territory without consultation. The First Nation says that Ontario’s current staking system violates both the government’s duty to consult Indigenous peoples under Section 35 of the Constitution, and the United Nations Declaration on the Rights of Indigenous Peoples, which requires free, prior and informed consent.
In addition to requiring the industry to consult Grassy Narrows for future mining claims, it is asking the court to rescind all mining claims that have already been granted. That could have implications not only for exploration companies, but for existing mines, all of which would have been granted claims at some point.
If the court rules that historic mining claims in its territory are void, it’s logical to conclude that all mining claims given out in Ontario are invalid, said Jackie Esmonde, a lawyer with Cavalluzzo LLP, who is representing the First Nation.
“If it’s unconstitutional for Grassy Narrows, then it would be unconstitutional throughout the province,” Ms. Esmonde said in an interview at Queen’s Park after the launch the of legal action.
“It’s a product of the way the Constitution works. If it’s invalid under section 35, then section 52 says the law is of no force and effect.”
Jack Fazzari, press secretary for Ontario Attorney-General Doug Downey, declined to comment on the legal action against the province.
Grassy Narrows’s legal action against the province follows a successful case in British Columbia last year that saw two First Nations successfully argue that B.C.’s prospecting system is unconstitutional. The province has committed to moving away from its free-entry system for staking and now requires prospectors to consult the Indigenous peoples. The free-entry system allows any person or company to stake a claim for a nominal fee.
Across Ontario, 370,161 mining claims are active, according to the Ministry of Mines. Those claims cover 11.5 per cent of the area of the province, according to data from Meg Southee of the Wildlife Conservation Society Canada.
Claims have risen at a dramatic pace since the system moved online in 2018, more than doubling in Grassy Narrows to cover 29 per cent of its traditional territory.
Grassy Narrows for years has been rebuffed in its efforts to discuss its concerns with the province about the minerals staking system, Ms. Esmonde said. Last year, the First Nation staged a rally in Toronto alongside several other First Nations to protest the alleged unconstitutionality of the free entry system. On Friday, Grassy Narrows made a fresh appeal to Ontario Premier Doug Ford.
“I’ve never met Doug Ford. I’d like to meet him,” said Grassy Narrows Chief Rudy Turtle at a news conference at Queen’s Park on Friday. “Our consultants have written a letter to see if we could sit down with him and talk face-to-face, but it’s never happened.”
While prospecting is far less disruptive than mining, Grassy Narrows says that prospecting activity harms its traditional hunting, trapping, fishing and medicine-gathering grounds. The First Nation says that disruptive work on claims includes building trails for heavy machinery, clearing trees and brush, digging pits and trenches, and stripping the soil off the bedrock.
“We want our land to remain intact because of our cultural practices, our way of life,” Mr. Turtle said.
The Dryden Paper Mill dumped about 9,000 kilograms of mercury into rivers around Grassy Narrows in the 1960s and 1970s, contaminating its fish supply and leaving much of its population suffering health impacts from mercury poisoning.
Michael Fobister, Grassy Narrows’s land protection team supervisor, said he has lived mostly off the land his entire life and as a child went out trapping with family members. He suffered through the mercury catastrophe firsthand because his family caught and ate fish contaminated with the poison.
“It was our way of life, living off the water, eating the fish,” he said. “And that was taken away.”