The Big Trout Lake First Nation in Northern Ontario is in a fight to protect its rights from exploration and to recover the land in question from the Ontario government.
Big Trout Lake has been dealing with the government in the land claims process for years, but is now before the courts defending against a $10 billion lawsuit filed against them by Platinex, an upstart exploration company.
The First Nation, otherwise referred to as KI or Kitchenuhmaykoosib Inninnuwug, turned around and sued the company and the provincial government for failing to consult them directly on issues relating to the disputed land.
“We’re in Treaty no. 9 and the consultation obligations falls on the crown,” said David Peerla, the mining coordinator for Nishnawbe Aski Nation, which is providing assistance to KI. “All of the Supreme Court decisions affirm that.”
“The problem in Ontario is that the province, which is the treaty partner, has been trying to delegate its obligations to companies like Platinex,” Peerla added. “Platinex has been talking to the community; the problem is the community has a moratorium on resource development. The Crown has failed to show up and accommodate.”
There are 1,200 Ojibwa/Cree living in Kitchenuhmaykoosib Inninnuwug.
After the community affirmed its decision to place a moratorium on any kind of development on its land years ago, Platinex continued to stake and drill the land. The area is said to “possibly contain” large platinum deposits. A couple of months ago, community members set up a peaceful protest that halted exploration, but triggered the lawsuit.
“Resource development hasn’t worked in the past,” said Peerla. “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.”
At stake is a tract of land 15 kilometres from the community, which is not accessible by road.
“There is a very real environmental risk to their way of life this project represents,” Peerla said. “And they have unresolved land claims that haven’t been addressed.”
Neal Smitheman, lawyer and spokesperson for Platinex, said the $10 billion figure is simply a technicality. “What you have to do in litigation is you have to make sure you’re not going to find yourself getting awarded more than what you ask for, because then you would have to consult your insurers,” Smitheman told the Nation. “The life of a platinum mine could be 30 years, so the value could be $10 billion. All Platinex wants at this stage is to get an injunction to get on the property to do exploratory drilling.”
Peerla disagrees. He says that there is a motive behind suing for such a large number.
“The number, 10 billion, is designed to intimidate, silence and harass the First Nation,” said Peerla. “It’s not chosen accidentally. When I was up in the community, some members were saying it would take 200 years to pay off this bill. So it had the effect the company wanted.”
At one point, Platinex brought in an ex-British Army Officer to mediate. It was also seen as a scare tactic.
“That’s a very worrying trend,” said Peerla. “We don’t know what his instructions were, but we’re very concerned about using private security in First Nations’ disputes. At least the OPP is democratically accountable; you can have an inquiry and all kinds of checks and balances [if something were to happen]. But there are no checks and balances on private security firms entering into disputes with First Nations.”
Peerla said the community will be asking the OPP how it can regulate private security firms in cases like this.
“They’re not accountable to anyone,” he noted. “They’re common in Africa where they send an army to take over valuable mining deposits and protect them or to overthrow governments. The strange and worrying thing is to see them come to Canada.”
Smitheman said that people overreacted at the use of a mercenary.
“It’s not because he was a former British Army Officer that he was sent there, he just happened to be,” said Smitheman. “I was in the Boy Scouts one time, but I wouldn’t be referred to as a Boy Scout. This man has lots of experience in negotiating and dealing with situations like these and also to try to coordinate efforts so that the drill can come in. This has all been taken out of proportion. If he did anything, he calmed the situation down to ensure nothing unpleasant occurred.”
KI is also legally challenging Ontario’s Mining Act. “The problem is the courts say you must consult and accommodate First Nations prior to resource development,” said Peerla. “But the Mining Act says that companies can go anywhere on Crown land and stake and explore. It’s free entry. So there’s this archaic 19th-Century law that says they can go anywhere. Here in Ontario, if someone finds minerals under your house they’re theirs,” he laughed.
Four community members are walking to Ontario’s legislature in Toronto to raise awareness of their plight. They are hoping to arrive on Aboriginal Day, June 21.
Smitheman said Platinex was reluctant to sue the community, citing an eventual need to work together. However he said time is of the essence.
“If we have to wait to get to court before we could try this case, the company would suffer irreparable harm,” said Smitheman, who expects Platinex will be back to work in July if it receives an injunction during court hearings on June 22 and 23.
“If we can’t get on the property, we’re doomed,” he said. “We can’t wait for the First Nations and the province to determine what the land claims are. This has been going on for decades. 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.”
Peerla warned that much more was at stake than seeking out platinum deposits.
“Part of what Platinex claimed in their litigation is they want to create a treaty-free zone. In other words they want 8,000-plus acres, I guess, of area where no one can exercise their Aboriginal treaty rights,” he said. “They also want 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.”
