6 First Nations challenge Ontario’s Mining Act, a month after similar legal action by Grassy Narrows

Six First Nations in northern Ontario are challenging the province’s Mining Act, arguing it violates their treaty and Charter equality rights.

Representatives from the First Nations and their legal counsel held a news conference at Queen’s Park on Monday, three days after the notice of application was filed in the Superior Court of Justice.

“The Ontario Mining Act is a piece of racist legislation that bulldozes over First Nations lands and rights. It says to the world that the land in Ontario is free for the taking and drilling and blowing up,” said Chief June Black of Apitipi Anicinapek Nation. “These are not your lands to give away, Ontario.”

The other First Nations behind the case are:

• Aroland First Nation.
• Attawapiskat First Nation.
• Fort Albany First Nation.
• Ginoogaming First Nation.
• Kitchenuhmaykoosib Inninuwug.

The Treaty 9 communities are being represented by Woodward and Company Lawyers LLP, a British Columbia-based firm that works exclusively for First Nations governments and organizations.

Last month, a separate but similar court case was filed by Asubpeeschoseewagong Netum Anishinabek First Nation, known as Grassy Narrows. It argues the Mining Act breaches the First Nation’s treaty rights under Sec. 35 of the Constitution and contravenes the United Nations Declaration on the Rights of Indigenous Peoples.

Grassy Narrows is a leading member of the First Nations Land Defence Alliance, which has been pushing for Ontario to respect their rights to free, prior and informed consent when it comes to development in their territories, including a proposed nuclear waste storage site near Ignace.

The six First Nations’ notice of application argues Ontario’s free-entry mining system — which allows prospectors to stake, or record, claims online for a fee — doesn’t allow First Nations to be properly consulted about exploration activities on their lands. It seeks changes to the act that would ensure treaty and constitutional rights are upheld.

In a similar case in British Columbia, the Supreme Court ruled the province’s mining permit system was not in compliance with the government’s duty to consult Indigenous groups.

Act has been amended over the years

Kate Kempton, senior counsel with Woodward and Company Lawyers LLP, said that when it comes to mining plans, Ontario’s efforts to consult with First Nations amount to “nothing but a paper chase.”

“The Crown governments … pretend that they’re engaging with First Nations, but they do nothing effectively but send out form letters. It’s an appalling, insulting, discriminatory regime,” Kempton said at Monday’s news conference.

Following pressure from a number of First Nations, the act was amended in 2009 to better recognize treaty rights and prohibit claims on ecologically sensitive lands. Last year, the act was updated again with the Building More Mines Act, which drew criticism from many First Nations leaders for expediting permit approvals.

Jacob Ostaman, director of lands and environment for Kitchenuhmaykoosib Inninuwug (KI), spoke of the legacy of environmental advocacy in his community and members of the group known as “the KI 6” who were imprisoned in 2008 for protesting against mining on their traditional lands.

“Our people have been stewards of these lands for countless generations and we assert our right to ultimate decision-making power over our territory,” Ostaman said. “This is not just a legal position — it is our sacred duty to protect the land, as entrusted to us by our ancestors.”

Black said exploration activities on her community’s traditional practices are detrimental.

“I can’t even begin to tell you the feelings that are arising for me and our communities, knowing our water is getting so very close to contamination — the water we hold sacred since time immemorial, the water we use during our sacred ceremonies, and ensuring we maintain our part in upholding our responsibility to take care of the land as given by the Creator.”

Premier, mining minister on northern Ontario’s potential

CBC News has reached out to the office of Mines Minister George Pirie for comment on the court application, and this story will be updated with any response.

On Friday, Pirie was in Thunder Bay with Premier Doug Ford to announce $17 million through the Skilled Development Fund (SDF) to train 36,000 workers and support jobs in mining, construction, energy and forestry.

“I’ve been the minister [of mines] for about two years. The first thing we did was change the Mining Act, and that was to ensure that we could permit these mines,” Pirie said.

Pirie said it took 17 years before the Côté Gold Mine south of Timmins was permitted, and it’s hoped changes to the act will help speed up the process for other projects.

“You have to have the right people at the right place, and that’s what this team in Ontario has done across the board — the right people at the same place.”

Ford said northern Ontario is key to unlocking the province’s economic potential when it comes to mining critical minerals for the electric vehicle (EV) industry.

“We’re so grateful to be working with you, with First Nation leaders, with terrific organizations like the ones we have here today,” Ford said Friday.

“If we don’t collaborate and co-operate with each other at all three different levels of government and organizations, nothing gets built. But when we do collaborate and co-operate, there’s no one that can stop us around the world.”

Timing for legal action to be heard

While lawsuits can take several years before getting to trial, Kempton said an application such as this one can go through the courts much faster, as “we’re mostly arguing the application of the law and not so much arguing the facts.”

That means a decision in this case could come as early as a year from now, she said.

In the meantime, Kempton said, chiefs continue to be flooded with emails about mining claims recorded on their lands.

“Every day, every chief I know gets dozens and dozens of notices that claims have already been recorded. It’s too late by then. That’s not consultation.”