Grassy Narrows launches legal battle against Ontario’s Mining Act
The Grassy Narrows First Nation is taking Ontario to court over its Mining Act – one they allege is unconstitutional.
The First Nation, located 80 km north of Kenora, Ont., is asking a court to declare the province has a duty to consult the Nation and obtain its consent before granting or renewing mining claims in the area.
Grassy contends the Ontario Mining Act violates Sec. 35 of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Act, they say, infringes on Treaty rights and does not require proper consultation with First Nations before staking mining claims.
On Friday, representatives from Grassy Narrows and their legal team announced they’d issued an application to the Ontario Superior Court of Justice at Queen’s Park in Toronto.
The application, obtained by APTN News, states there are about 10,000 mining claims in the Grassy Narrows’ Interim Core Area of Interest for Mining. In total, the claims cover approximately 42 per cent of the land in the area as of July 5.
“Most of our area has been staked and claimed, and all of it has been done without consulting our First Nation,” said Chief Rudy Turtle. “These claims were processed but we were told after the fact.”
Rescind existing mining claims
The First Nation is also calling on Ontario to rescind existing mining claims in the area and require present and future prospectors to obtain consent from Grassy Narrows before engaging in mining activities.
If their case is successful, it could set a precedent for mining claims in the rest of Ontario.
In an interview with APTN ahead of the news conference, Grassy Narrows’ lawyer Jackie Esmonde alleged the province’s free-entry mining system infringes on the rights of First Nations.
“Basically anyone in their pajamas on a couch can get on their laptop and they can stake a claim anywhere that’s open for mining in the province without notifying, consulting, getting consent from Indigenous nations who have an interest and rights over that land,” Esmonde said.
In 2018, the Ontario government launched the Mining Lands Administration System, making it possible to stake mining claims online. The Grassy Narrows application says Ontario’s introduction of online staking has resulted in “an explosion in claims” in the area.
In October of the same year, Grassy Narrows enacted a Land Declaration banning mineral staking and mining without the First Nation’s consent. Nonetheless, the declaration has failed to halt mining activity.
More than 5,000 claims
The First Nation says more than 5,000 claims – that’s more than half of the total – have been staked since 2018.
Michael Fobister, a supervisor on the Grassy Narrows Land Protection Team, said the community has long suffered from the impacts of industrial activity, damaging their health and compromising their way of life.
In the 1960s and ‘70s, the Reed Paper Mill in Dryden, Ont., dumped about nine tonnes of mercury into the nearby English-Wabigoon River System.
The First Nation continues to be adversely impacted by contamination, with approximately 90 per cent of its members displaying symptoms of mercury poisoning.
“I think about what happened after the mercury hit,” said Fobister. “We were trapping out at the trapline, and the forestry companies were coming, they were getting closer to the community.
“Now with the mining, the stakes are getting closer to the community, and without our consultation. The governments, the mining companies don’t think about what had happened to our community.”
Launched a lawsuit
Last month, Grassy Narrows launched a lawsuit against the provincial and federal governments for failing to protect or remedy the effects of mercury contamination in the area.
Now, after launching a second legal battle, lead negotiator Joseph Fobister said the community cannot continue to cope with the twofold impacts of mercury and mining.
“We are going to deal with more pollution, more contamination,” he said. “We have high levels of mercury as it is right now, and I don’t think we can handle anymore.
“It explains a lot of our losses, a lot of our people passing away. So it’s hard to try and deal with two problems at the same time, you know, the Mining Act and these deaths.”
Last year, the British Columbia Supreme Court transformed that province’s free-entry mining system after ruling that First Nations must be consulted before establishing mineral claims.
The decision came after the Gitxaała Nation and Ehattesaht First Nation argued the previous system failed to uphold the duty to consult First Nations before staking a claim.
Grassy Narrows says this case is the first of its kind to be brought forth in Ontario courts.