Province ‘missing in action’ in mining dispute, lawyer says

Province ‘missing in action' in mining dispute, lawyer says

 

KATE HARRIES

 

 

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THUNDER BAY — The Ontario government came under fire in court on Friday for standing by while a dispute has escalated between an Indian band and a Toronto mining exploration company.

 

There's been an absolute and complete failure by Ontario to fulfill its duties,” lawyer Francis Thatcher told Mr. Justice Patrick Smith of the Superior Court, who is hearing an application by Platinex Inc. for an injunction to prohibit Kitchenuhmaykoosib Inninuwug First Nation (KI) from getting access to its drilling site on Crown land in KI traditional territory.

 

Mr. Thatcher, acting for the Independent First Nations Alliance, an intervenor in the case, said the province has dragged its feet since a Supreme Court ruling six years ago spelled out its duty to consult with aboriginals in any situation where treaty rights could be infringed.

 

He scornfully dismissed draft consultation guidelines, circulated last week by the Ontario Aboriginal Affairs Secretariat, as “a day late and a dollar short,” adding that extensive aboriginal input should have been sought before they were produced.

 

The draft guidelines are to be officially released tomorrow when Aboriginal Affairs Minister David Ramsay addresses an All Ontario Chiefs conference in KI. “This is just a starter document,” spokeswoman Anne-Marie Flanagan said in a telephone interview Friday. “We want to have a really open and full consultation on this.”

 

Mr. Thatcher said the province was “missing in action” and should have had a lawyer in court to explain its conduct, as Judge Smith's ruling on the dispute has the potential to affect the rights of aboriginals across Ontario. “Ontario has completely dropped the ball,” he said.

 

If they dropped the ball on KI, they dropped a brick on Platinex,” said company lawyer Neal Smitheman, who told Judge Smith that a finding against Platinex could jeopardize all mining activity north of the 51st parallel. “Failure to consult by the province could put in jeopardy every mining claim in the province,” he said, adding, “I'm asking the court not to punish Platinex for the sins of the province.”

 

KI lawyer Kate Kempton told Judge Smith that the province's failure to consult with KI on mining exploration in its traditional territory make its approval of Platinex's claims and leases void.

 

Ontario completely abdicated its responsibility to Kitchenuhmaykoosib Inninuwug,” she said, noting that officials from the Northern Development and Mines Ministry attended only three meetings in the seven years Platinex has owned claims in the Big Trout Lake area.

 

KI is seeking an injunction to stop Platinex from proceeding with its plans without KI's consent and has launched a challenge of the Ontario Mining Act which, Ms. Kempton said, makes no provision for constitutionally required consultation.

 

She pointed out that, according to Mr. Smitheman, Northern Development and Mines has just renewed Platinex mining claims that were due to expire next month. “Guess what? My client wasn't consulted about that.” The failure, she argued, is an “absolute violation” of Canadian law, as shaped in recent Supreme Court decisions.

 

This disrespectful, abusive relationship with the Crown cannot continue,” she said. “Kitchenuhmaykoosib Inninuwug is seeking a meaningful decision-making role about its own fate and its own future. . . . which is what the law requires.”

 

Ms. Kempton said KI is not opposed to economic development and is willing to consult with Platinex and the province. The harm comes from unilateral decisions that have no regard for aboriginal laws and perspectives, she said.

 

There is an intolerable risk that one more harm heaped on top of all those with which KI is currently burdened would push KI and its social and cultural structure past the brink.”