Case highlights dispute over the land as a sacred legacy or a rich resource


Case highlights dispute over the land as a sacred legacy or a rich resource



2007 CTVglobemedia Publishing Inc. All Rights Reserved.


Sometimes a court ruling solves a problem and sometimes it doesn't. That's the case with an Ontario Superior Court of Justice judgment last week that sought to mediate a dispute between a native band in the remote, unspoiled northern forest and a mining company that is eager to exploit the riches beneath the forest.


Mr. Justice Patrick Smith ruled that the junior mining company, Platinex Inc., could conduct limited exploration on aboriginal territory but that it had to consult with the Kitchenuhmaykoosib Inninuwug people living on Big Trout Lake, about 580 kilometres north of Thunder Bay.


It's a glass half full and half empty. The natives won a victory in that Judge Smith's ruling required Platinex to work out a “consultation protocol” by next week before it can proceed to drill 24 test holes to determine the extent of chromium deposits. But even as he ruled that the company did not have carte blanche to proceed with a full-scale drilling project, he noted that aboriginal constitutional rights “do not … automatically trump competing rights whether they be government, corporate or private in nature.”


The Platinex case is under the radar of Southern Ontario, but it is being followed closely by those who live north of the 51st parallel or follow its affairs.


The tussle between the company and KI, which has been going on for eight years, centres on 300 mining claims and leases on the aboriginals' traditional lands that are beyond the KI's more restricted reserve property. The scope of the traditional land and the reserve was determined when the people of Big Trout Lake signed on to Treaty 9 in 1929.


The claims are above board because Ontario's 100-year-old mining law gives prospectors the right to enter Crown land to stake claims without first having to purchase the land. The government requires a mining lease before mineral production can begin, but KI is nervous that it does not understand how exploration would affect aboriginal traditions.


The conflict between rights has been hastened both by the growing pressure to allow resource extraction north of the 51st parallel and a series of court judgments that establish the duty of consultation. “On one side of the battlefield is the non-aboriginal desire to develop the rich resources of the land,” Judge Smith wrote. “On the other side is the aboriginal perspective that views the land as a sacred legacy given to them by the Creator to manage.”


Judge Smith's ruling may have straightened things out in the short term. John Cutfeet, a spokesman for KI, says it represents something of a victory because it ensures consultation, and Platinex president James Trusler says he is confident of “healing the relationship” with the native band.


But there are other voices warning that the ruling is a victory only for aboriginal communities that are ready to make deals with developers. They say the judge's contention that aboriginals “surrendered” their lands is wrong and they want the right to veto development.


Once again, the courts have failed to recognize the special relationship that first nations have with the land,” said Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation, which represents 49 reserves across the north.


David Ramsay, Ontario's minister responsible for aboriginal affairs, foresees many more years of court cases. “The larger issue in regard to the relationship between the Mining Act with aboriginal rights has yet to be determined,” he said.


Premier Dalton McGuinty showed he understood the issue in 2003 when he promised “meaningful, broad-scale land-use planning” for the boreal forest. No such plan exists, although a government spokesman said it is being worked on. Meanwhile, mining permits continue to be handed out.


That has to be addressed,” said Mr. Cutfeet. “Right away.”