Mine Fields
In 1849, Ojibwa chiefs Shingwauk and Kinebonegojing got tired of waiting for the British government to do something about mining companies abusing First Nation land and stormed the Quebec and Lake Superior Mining Company’s operations on Lake Superior, 100 kilometres northwest of Sault Ste. Marie. The raid landed the Aboriginal leaders in a Toronto jail, garnered political attention and resulted in land treaties spanning much of northern Ontario.
As much as treaty requirements, such as the duty to consult, accommodate and reconcile First Nation concerns, have bolstered Aboriginal rights in Canada, mining still instigates conflict. Ontario’s free-entry system does not recognize the fact that treaties govern all Crown land in Ontario. This means that the vast majority of mining claims staked across the province affect Aboriginal groups; while not all claims provoke quarrels, those that have done so emphasize the contradiction between treaty rights and mining policy.
In March, six members of the Kitchenuhmaykoosib Inninuwug (KI) First Nation, a Treaty 9 signatory with land claims covering more than 22,000 square kilometres of northwestern Ontario, were arrested and jailed for peacefully protesting the Toronto-based mining company Platinex’s plans to explore for platinum. The Ontario Superior Court of Justice sided with Platinex, ruling that KI was in contempt of court for refusing to obey a previous legaldecision to allow Platinex access to KI land. According to Jacob Ostaman, KI’s director of lands and environment, removing overburden and drilling for samples would disrupt pristine, intact watersheds and possibly contaminate Big Trout Lake. After it accepted Platinex’s mining claims, Ostaman says, the Ontario government ignored KI’s environmental concerns. Under the Mining Act, however, Platinex is not required to report exploration plans to the government or First Nations. “There has to be a meaningful consultation process,” says Ostaman. “Right now, the government just tells us what’s going to happen.”
Last fall, the mining company sued KI for $10 billion for denying access to its mining claims; the band has since paid around $750,000 in legal fees. Similarly, an ongoing dispute in eastern Ontario landed Ardoch Algonquin First Nation leader Robert Lovelace in jail, with a fine of $25,000 for opposing uranium exploration on traditional lands. In April, in response to widespread protests of the sentencing of members of these First Nations and criticism of the unconstitutional framework of the Mining Act, Premier Dalton McGuinty maintained that the government had no influence over the court’s decisions but is working to modernize mining policy.
Until that happens, environmental and human rights organizations are siding with First Nations groups, including the Nishnawbe Aski Nation, which represents 49 First Nations communities across northern Ontario, to call for a mining moratorium.
“It’s impossible to keep up with the current pace of exploration,” says Julee Boan, Ontario Nature’s boreal conservation coordinator. “A moratorium on any new mineral exploration is the best way to ensure that comprehensive land-use planning can take place.”
Conor Mihell
Perhaps the greatest shortcoming of Ontario’s mining policy is that it has no provisions for measuring the cumulative environmental impacts of development. Because the jurisdiction is split between Ottawa and the provinces, mines are subject only to a piecemeal review, where federal agencies, such as Fisheries and Oceans Canada, and provincial legislation, such as the Ontario Water Resources Act, guides the assessment of individual components of a proposal. As a result, explains Anastasia Lintner, a staff lawyer and economist at Ecojustice Canada (formerly Sierra Legal Defence), a national nonprofit environmental law organization, “no one does an overall examination of a project.”
The situation is further confounded in Ontario by the fact that the MNDM has been historically protected from environmental assessment legislation. Lintner says that before the Ontario Environmental Assessment Act came into force, the government “wanted to allow ongoing [mining] projects to be able to continue while they went through the process of determining the criteria of class environmental assessments.” Exemptions for mining development were first put in place in the early 1980s and have been extended ever since, with the current three-year term set to expire in June 2009.
Ontario Nature
www.ontarionature.org
Bedford Mining Alert
www.bedfordminingalert.ca
Canary Institute
www.canaryinstitute.ca
Federation of Ontario Cottagers’ Associations
www.foca.on.ca
MiningWatch Canada
www.miningwatch.ca
MNDM Mines and Minerals Division
www.mndm.gov.on.ca/mines/default_e.asp
Lintner believes that the problem of split jurisdiction and piecemeal assessments could be overcome with joint panel reviews, in which federal and provincial agencies and the mining proponent agree to a review of potential environmental impacts by an independent panel of experts, including, she says, “an overall assessment of whether or not it’s worth it.” In 2007, for example, a joint review panel in British Columbia rejected a proposal for a copper and gold mine, the first mine proposal turned down by an environmental assessment in Canadian history.
This April, Dalton McGuinty renewed his promise to review the Mining Act and told reporters that Ontario’s mining policy does not mesh “with our values and expectations at the beginning of the 21st century.” A press release issued by the premier’s office in July promised that new mining legislation would be introduced “in the upcoming session” and “new rules would be in place for later next year.”
That is welcome news to environmentalists like Bayne, whose more than 20 years of protecting her Lake Superior property from prospectors have made her skeptical that reform will ever come. Crawford is hopeful, too, but not relenting in her activism. While she wants the MNDM to commit to wholesale changes of the Mining Act, including the abolishment of free entry, incorporation of comprehensive environmental assessments at all stages of the mining process, and mandating effective rehabilitation, she continues to plug away at the smaller details of mining policy. Under the current system, any proposed changes to mining legislation must first go through the Minister’s Mining Act Advisory Council, many of whose members are mining industry representatives who are selected for the council by invitation only from the Minister.
Still, demands for changes to the Mining Act are getting stronger. In an April letter to McGuinty, 20 high-profile Canadians, including author Margaret Atwood and human rights activist Stephen Lewis, urged the premier to expedite changes to mining policy. In another letter to the premier in May, U.S. environmentalist Robert F. Kennedy Jr. scolded the province’s hesitant response to the plight of Aboriginal leaders from the Kitchenuhmaykoosib Inninuwug reserve, in northwestern Ontario, and Ardoch Algonquin First Nation, near Kingston, who were jailed in March for opposing mineral exploration in their traditional lands. (See “First Nations rights vs. mining rights”).
The public will no longer accept the assumption that mining is the best use of the province’s land base, says Ontario Nature’s Baker. “Right now, mining companies don’t even bother to say that they’re environmentally friendly. They’re all-powerful and they’ve always had the government’s support. But attitudes are changing,” she insists. “We want to make sure that a review of the Mining Act is open [and] transparent, and has solid public consultation along the way.” For Baker, the glitter of diamonds and gold cannot compare with the simple pleasure that will come when the ground beneath our feet is truly ours to venerate.
Conor Mihell is a freelance environment and adventure travel writer based in Wawa, Ontario.
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