By Christine Beevis

It seems incredible that, under the Ontario mining act, today’s prospectors are just as entitled to “free entry” on any crown or private land as they were a century ago. By simply placing a stake on each corner of an area being claimed and registering the staked claim, prospectors gain exclusive rights to explore that area. If enough minerals are discovered to justify a mine, the company will apply for a mineral licence, which the government cannot refuse. But a dispute between a mining company and a First Nations community has set the stage for a legal battle that could change all that.

In the last issue, on nature reported that eight first nations communities – all located in the intact boreal forest north of the 51st parallel – were calling for a moratorium on the province’s system of free entry for mineral exploration and development (see “bands ask for mining moratorium,” summer 2006, page 10). In a surprising twist, Platinex inc., one of the companies affected by the moratorium on exploration in the Big Trout Lake area by the Kitchenuhm Aykoosibinni Nuwug (KI) first nation, responded by suing the KI community for $10 billion and requesting a ban on protests demonstrating the community’s position. KI is suing Platinex and the Ontario government for $10 billion and is asking for a moratorium on exploration.

The KI community has charged that the Ontario mining act is unconstitutional since it does not require adequate consultation with and accommodation of first nations communities. “On the face of it, it appears that the free entry system is in violation of the principles set out by the supreme court of Canada in the Mikisew Cree case,” agrees Wendy Francis, Ontario nature’s director of conservation and science. In the landmark 2005 decision concerning a proposed road through Wood Buffalo National Park , the supreme court unanimously held that where an activity is likely to affect a first nations community’s rights to hunt, trap and fish on crown lands, then that community has the right to demand consultation to minimize any impacts on its treaty rights.

“If the mining act is deemed to be unconstitutional, it will have ramifications for the way mining is conducted throughout the country,” says Francis. “The century- old assumption that mining is the first priority use on crown lands will be shattered, opening the way for a new regime that might better balance the interests of aboriginal peoples, conservation and industrial development.”