MAC/20: Mines and Communities

To Courts in Canada: First Nations versus mining's alleged interlopers

Published by MAC on 2006-08-29


To Courts in Canada: First Nations versus mining's alleged interlopers

29th August 2006

To Court in Canada: First Nations versus mining's alleged interlopers

In at least four ongoing cases, the rights of Canada's Aboriginal peoples (First Nations), backed by environmentalists- are being tested against the claims of four mining companies

bcMetals facing showdown with Indians

Mike Caswell, Stock Watch Street Wire

29th August 2006

bcMetals Corp. will appear in B.C. Supreme Court Tuesday seeking to remove Indian environmentalists blocking its Red Chris project in Northern B.C, but the protesters may not move. A group calling itself the Klabona Keepers blockaded drilling equipment last Wednesday, the company has revealed in court filings, and the protesters will not say if they plan to obey any court order removing them.

The Klabona Keepers claims it initially blocked the project earlier this summer over fish spawning concerns, but now its members could face arrest if they do not allow drilling equipment in. "We, the people who use and occupy these lands, will decide which and how many projects are appropriate for our traditional territory," intoned Rhoda Quock, one of the group's leaders.

The group says it does not oppose mining, but it does oppose the Red Chris project, according to spokesman Peter Jakesta. "It's in traditional territory," and the group has the backing of several other Indian bands, he says.

bcMetals halted proposed drilling on the project in July, and agreed not to resume work until spawning was complete on a nearby stream, according to court filings. The company says the local Indian band, the Tahltan First Nation, agreed to allow the drilling once the fish were done. "I asked [Tahltan council chair Curtis Rattray] if they had any objection to us going up to the site after spawning was finished and he stated there would be no problem at all," says an affidavit by Michael Redfearn, bcMetals' vice-president of operations.

However, when the drills arrived last Wednesday, they were greeted by a group of 30 protesters forming a human barricade, the company says. Two RCMP officers attended, but even with a valid work permit in hand, the work crew could not get the environmentalists to budge. "You are polluting our land and water and putting us at risk," one of them apparently said. The trucks turned around and the crews are still waiting to return.

bcMetals says it is spending $4,021 per day to keep drills ready and a camp open while the protesters prevent its trucks from entering. The company is asking for damages for obstruction and nuisance, among other things.

The Klabona Keepers will not say if they plan to obey the injunction, assuming bcMetals is successful Tuesday. "That can't be answered," says Mr. Jakesta.

The company expects protesters could oppose the court order as "standard procedure," says Mr. Redfearn. "If they don't obey [the injunction] the RCMP will arrest them," he says.

The RCMP arrested 13 Tahltan members last September after a seven-week blockade of Fortune Minerals Ltd.'s Mount Klappan coal project in the area. That dispute deeply divided the Tahltan community, with some wanting the jobs associated with the project, while others opposed the development on environmental grounds. Eventually Fortune Minerals obtained a court order and police removed the roadblock, arresting nine elders and four young people.

In 2004, Coast Mountain Power Corp. went to court to remove a Tahltan roadblock at its Forrest Kerr hydroelectric project, which had the misfortune of being in a land claim area. The company later dropped the case when the Tahltan agreed to drop its opposition to Coast Mountain's land-use permits.

More recently, Shell Canada abandoned methane coalbed exploration in the area because it could not agree to terms with the Tahltan. The Indians said Shell would not let them be fully involved in land-use decisions, while Shell said it offered a deal that could have provided up to $6-million and wages and contracts to Indian workers.

Not all companies have been unsuccessful in dealing with the Tahltan, however. NovaGold Resources Inc. secured the band's support this March for its planned Galore Creek mine with a $20-million deal that includes commitments on mining jobs and other opportunities.

bcMetals disclosed the roadblock problem last Wednesday in a news release, delicately calling the Indians a "dissident group." The company lost eight cents to close at 60 cents that day, and lost two cents to close at 58 cents Monday.


OSC probe urged of miner's role in Cree land dispute

Platinex in legal row with community

Groups seek tougher oversight of firms

PETER GORRIE, TORONTO STAR

17th August 2006

Four environment groups want the Ontario Securities Commission to investigate a mining company that's suing a small Cree community in Ontario's far north for $10 billion.

The groups hope their action will lead to tougher oversight when companies claim clear access to land, including consent from nearby communities, where they aim to explore for minerals. In a letter to the commission, they allege Aurora-based Platinex Inc. "breached disclosure requirements" when it assured investors it had permission to seek platinum near Kitchenuhmaykoosib Inninuwug, or KI, about 600 kilometres north of Thunder Bay.

KI actually opposed the project, based in an area it claims is part of its traditional territory.

The investigation request is based on a court judgment in the first of what is likely to be a series of legal battles between Platinex and KI.

Last winter, a Platinex contractor opened an exploration camp. KI set up a protest nearby. After a week of peaceful standoff, the contractor left.

Platinex, claiming intimidation, sued KI for $10 billion; the community countersued for $10 million. Platinex sought a ban on protests; KI asked the courts to prohibit exploration.

KI won the first legal round last month, when Mr. Justice G.P. Smith of the Ontario Superior Court issued an injunction against work by Platinex.

Smith gave the two sides, and the province, five months to resolve the matter. Talks are to proceed, although last week Platinex said it would appeal.

The struggling junior miner argued in court it faced insolvency unless it could do exploration work this summer. It had raised money by issuing flow-through shares, which offer a tax writeoff for the cost of work within the year.

Platinex is "to a large degree, the author of its own misfortune," Smith wrote. "At the time (it) became listed on the (TSX Venture Exchange) and issued a prospectus to raise funds, it knew that access to the land was a serious and real issue."

"Mining exploration companies are not adequately reporting to investors the nature and extent of opposition by communities to their activities," state the groups - MiningWatch Canada, Forest Ethics, Rainforest Action Network and Natural Resource Defence Council. "There's nobody monitoring ... so investors can't know whether access claims are accurate," Joan Kuyek, national co-ordinator of Ottawa-based MiningWatch, said yesterday.

In a separate action, KI wants the courts to throw out the province's Mining Act, which allows prospectors free entry on to almost any privately owned land.


Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, [2006] O.J.

No. 3140 (QL), 2006 CanLII 26171, Ontario Superior Court of Justice

(G.P. Smith J.)

28th July 2006

Borden Ladner Gervais LLP, ABORIGINAL LEGAL ISSUES e-NEWSLETTER 16 August 2006

The Ontario Superior Court of Justice granted an interim injunction to a First Nation in northwestern Ontario enjoining a company from engaging in any mining exploration activities for five months. The Court also ordered the First Nation to establish a "consultation committee" to negotiate with the exploration company and the provincial government.

The Court dismissed the injunction application brought by the exploration company to prevent the Aboriginal community from interfering with its activities.

The case concerned what the Court described as a "clash" between a desire for "the economic development of the rich resources located on a vast tract of pristine land in a remote portion of Northwestern Ontario" and the First Nation's fight to "safeguard and preserve its traditional land, culture, way of life and core beliefs".

The Kitchenuhmaykoosib Inninuwug First Nation (the "KI First Nation") was described as an Ojibwa/Cree First Nation. It was a signatory to the 1929 adhesion to Treaty 9, and occupies a reserve near Big Trout Lake, approximately 380 miles north of Thunder Bay.

In May 2000, the KI First Nation filed a Treaty Land Entitlement Claim on the basis that the calculation of the area of its reserve was improper. It sought further land in its traditional territory.

Platinex Inc. is a junior exploration company in Ontario that is in the business of exploratory drilling. Its main asset is a 100% interest in unpatented mining claims and mining leases near Big Trout Lake. Platinex was granted a number of extensions on these mining claims by the Ontario Ministry of Northern Development and Mines since 1999.

The area of land at issue in the injunction application covers 19 square kilometres of boreal forest near Big Trout Lake. It is not part of the KI First Nation's reserve, but the KI First Nation asserts that this area falls within its "traditional territory" and is therefore part of its Treaty Land Entitlement Claim.

Platinex and the KI First Nation had ongoing discussions since 1999 about the intended exploration and development of the area. In February 2001, the KI First Nation advised Platinex that it wanted a moratorium on all development until proper consultation had taken place. The KI First Nation stated that it was not opposed to development, but wanted to be a "full partner" and to be fully consulted.

Further discussions were held, but they did not comply with the KI First Nation's consultation protocol. In August 2005, the KI First Nation advised Platinex that all previous agreements were now "null and void". Nevertheless, in October 2005, Platinex made public its mining application on the TSX Venture Exchange and represented that the KI First Nation had "verbally consented" to low impact exploration. By December 2005, Platinex had raised over $1 million in private placements.

In February 2006, the Chief and Council of the KI First Nation wrote to Platinex advising that members of the community were committed to take any measures necessary to stop exploratory drilling in the area. A number of individuals from the community went to the drilling camp to protest. As noted by the Court, there is a large discrepancy between Platinex and the KI First Nation as to what happened next. Platinex alleged that the protest by the KI First Nation was hostile and threatening, and involved the seizure of equipment and the ploughing of an airstrip. The KI First Nation alleged that the protest was peaceful and involved elderly members and children. Members of the Ontario Provincial Police were present.

Platinex and the KI First Nation both sought injunctive relief. The Court reviewed the applicable RJR MacDonald test for injunctions as well as materials on the use of injunctions in the Aboriginal context. Justice George P. Smith noted that an injunction is "often not suited" to situations involving Aboriginal issues.

The Court held that both parties were able to satisfy the first prong of the RJR MacDonald test, as there was a serious issue to be tried.

The Court did not agree that Platinex would suffer irreparable harm. The Court found that Platinex had known as early as 2001 that the KI First Nation was not consenting to further exploration. The Court stated:

"It is inconceivable that Platinex did not know that KI was strongly opposing any further drilling on the property.

"Platinex decided to gamble that KI would not try to stop them and essentially decided to try to steamroll over the KI community by moving in a drilling crew without notice.

"While I accept the evidence of Platinex that it will face insolvency if it cannot complete its drilling by the end of this year or shortly thereafter, Platinex is, to a large degree, the author of its own misfortune."

The Court held that the "unilateral" actions of Platinex were "disrespectful" of the First Nation's interests and were interpreted as an insult. Such actions were likely motivated by the "severe financial pressure" being felt by Platinex. The Court continued:

"For Platinex to now say that it will suffer irreparable harm if an injunction is not granted flies in the face of the equitable basis upon which injunctive relief is premised. The circumstances giving rise to the economic harm that will be potentially suffered by Platinex relate directly to decisions and choices that it made after KI had said that further exploration would be resisted. In making those choices, including the choice to raise funds by means of flow-through shares, and in understating its problems of access to the property, it ignored or was wilfully blind to the concerns and position of the KI community.

"The financial and time pressures Platinex is now experiencing are self-created and are based on an unreasonable belief that KI would not defend its interests when push came to shove. Platinex had the choice to continue with the process of consultation and negotiation with KI and the Crown and chose not to do so."

The Court held that the KI First Nation satisfied this prong of the RJR MacDonald test for an injunction. The Court stressed that the loss of traditional lands could constitute irreparable harm. The issue of "loss" must be considered from the Aboriginal perspective. The Court was satisfied that, for the KI First Nation, land was important from both a cultural and spiritual perspective, as it was "the very essence of their being" and their "very heart and soul". He stated:

"No amount of money can compensate for its loss. Aboriginal identity, spirituality, laws, traditions, culture, and rights are connected to and arise from this relationship to the land. This is a perspective that is foreign to and often difficult to understand from a non-Aboriginal viewpoint."

The Court also found that the KI First Nation satisfied the "balance of convenience" prong of the RJR MacDonald test. There were two "very unique" aspects in this case: (1) the exploration may take place on lands subject to an ongoing treaty claim; and (2) both Platinex and the provincial Crown chose to ignore the concerns of the KI First Nation. If the exploration were allowed, the KI First Nation's treaty claim could be adversely affected. In regards to the public interest, the Court found that there would not be a loss of employment for a large number of citizens. On the other hand, the public interest favoured the "integrity of the consultation process itself". The Court stated:

"A decision to grant an injunction to Platinex essentially would make the duties owed by the Crown and third parties meaningless and send a message to other resource development companies that they can simply ignore Aboriginal concerns.

"The grant of an injunction enhances the public interest by making the consultation process meaningful and by compelling the Crown to accept its fiduciary obligations and to act honourably.

Balancing the respective positions of the parties, I find that the balance of convenience favours the granting of an injunction to KI."

In light of Platinex's claim for $10 billion in damages, the Court also considered whether the KI First Nation must provide an undertaking to pay damages in order to obtain an injunction. After reviewing various sources, the Court waived this requirement. Justice G.P. Smith stated:

"Large wealthy corporations issuing law suits for many millions of dollars could disentitle First Nations from qualifying from the right to claim injunctive relief. This result cannot be deemed to be in accordance with the principles of equity.

To disentitle KI to a grant of an injunction in these circumstances cannot be fair or just."

The Court also rejected the argument that the KI First Nation did not have "clean hands" due to the nature of the protest at the drilling camp. The actions of the community members were "understandable", and no violence occurred. There was also no evidence that the KI First Nation had failed to make good faith efforts to consult.

The Court also made strongly-worded comments regarding the glaring absence of the Ontario government in the consultation process. The comments of the B.C. Court of Appeal in the Halfway River First Nation case, concerning the content of the duty to consult, were approved.

Justice G.P. Smith stressed that the Crown must make good faith efforts to negotiate an agreement, and cannot delegate this duty to third parties. The evidentiary record in this case shows that Ontario "abdicated its responsibility", while also granting extensions to Platinex's mining leases despite the KI First Nation's treaty claims.

There was no evidence that Ontario "maintained a strong supervisory presence in the negotiations". The Court commented that Ontario ignored its fiduciary role despite the "repeated judicial messages" since the Sparrow decision of 1990. He stated: "this case sadly reveals that the provincial Crown has not heard or comprehended this message and has failed in fulfilling this obligation". One of the unfortunate consequences of the Crown's failure was the resulting "industrial uncertainty".

The Court reviewed the options for the appropriate remedy in this case, such as ordering the creation of a consultative committee (as was the result in the Cheslatta Carrier Nation case), or an injunction. The promotion of "reconciliation" is the ultimate goal. The Court held that the possibility still exists in this case for a negotiated settlement.

The Court ordered that Platinex be enjoined from engaging in exploration at the Big Trout Lake site for five months, at which time the parties will re-attend at the Court. The granting of the interim injunction was conditional upon the KI First Nation releasing any property that had been removed from the drilling camp, and immediately setting up a "consultation committee" to meet with Platinex and the provincial Crown with the objective of developing an agreement with Platinex.


Environmentalists take federal government to court to protect BC caribou herd

JEREMY HAINSWORTH CP National News

24th August 2006

http://www.canadaeast.com/cp/national/article.php?articleID=36302

VANCOUVER (CP) - Environmental groups opposing the proposed Tulsequah Chief mine have initiated a legal challenge against the federal government saying the project could wipe out a protected caribou herd.

The lawsuit, filed late Wednesday, will ask the Federal Court of Canada to ensure the federal government upholds its legal duty to protect the East Atlin caribou herd.

Redfern Resources of Vancouver wants to reopen the Tulsequah Chief mine - 1,100 kilometres northwest of Vancouver near the B.C.-Alaska border - to extract copper, gold and other metals.

The project involves construction of a 160-kilometre road in the Taku watershed, in what is one of the largest roadless areas in North America.

It has been denounced by the likes of Robert Kennedy Jr.

The Liberal federal fisheries minister said last year there were no serious environmental objections to reopening an old mine in northern B.C.

Environmentalists were outraged Geoff Regan had approved the project.

"The project would include construction of a 160-kilometre access road into a pristine, rich and sensitive ecological area, with devastating impacts on local wildlife including a herd of caribou that are supposed to be protected under the federal Species at Risk Act," said David MacKinnon, executive director of the Transboundary Watershed Alliance in a news release.

The Sierra Legal Defence Fund, on behalf of the Transboundary Watershed Alliance, is targeting Transport Canada and the Department of Fisheries and Oceans in the suit.

They want federal authorizations for construction of the mine and road denied until the federal government fulfils what they see as its legal duties under the Canadian Environmental Assessment Act.

"The responsible authorities have confirmed that they intend to issue approvals and authorizations without ensuring that identified mitigation measures are enforceable and implemented or ensuring that measures are taken to protect listed wildlife species," the suit says.

In particular, the lawsuit asks the courts to ensure the federal government upholds its legal duty to protect the East Atlin caribou herd.

The 800-1,000-head herd roams the BC-Yukon border region. It is part of the Northern Mountain population of Woodland Caribou listed as a species of special concern under the act.

"Canadian Wildlife Service, Yukon Government and independent scientists all agree that the impacts from this project would be devastating on the caribou," MacKinnon said.

"Moose and grizzly bear populations will also suffer. By approving this project, our federal government has failed miserably to protect the Taku's wildlife populations and environment," MacKinnon said.

The groups say the federal government ignored federal laws by not implementing measures to protect the herd, but also the advice of both independent and government scientists in coming to its own "politically motivated" approval of the project in 2005.

"We are asking for the court to rule that no federal authorizations be issued until the glaring problems with the federal approval of this project have been remedied," said Sierra Legal Defence Fund lawyer Randy Christensen.

The suit would not be the first to target the highly contentious mine.

The Taku River Tlingit First Nation appealed to the Supreme Court of Canada in an unsuccessful bid to stop it.

At the time of the project's approval, Regan said there had been eight years of environmental assessments on the project.

MacKinnon disagrees.

"We were really dissatisfied with the federal conclusion. They were basically suggesting that building a 160-kilometre road into the heart of an incredible roadless wilderness area populated by caribou, mountain goats and grizzly bears and all kinds of wildlife would have no significant environmental effects," MacKinnon said.

"It appeared Canadian officials had simply decided they were going to approve this project regardless of what the evidence suggested."

Former NDP fisheries critic Peter Stoffer said last year the mine will endanger a salmon fishery which supports hundreds of fishermen in both the United States and Canada, many of them aboriginal.

He said the Fisheries Department is not fulfilling its mandate to protect fish habitat.

Fisheries Department spokeswoman Sue Farlinger has said concerns about the caribou were resolved through a wildlife management plan, but she did not have details.


De Beers fights to avoid full-scale review of diamond project

CBC News

2nd August 2006

De Beers Canada is taking the Mackenzie Valley Environmental Impact Review Board to court over its handling of the Gahcho Kue diamond project near Lutselk'e. De Beers alleges the board, which has the job of determining if the project is environmentally safe, was not thorough in its initial environmental assessment. The diamond giant is calling on the courts to quash a board order in June that requires them to conduct a public environmental review. De Beers says that instead of looking at the cumulative environmental effects of the project during that earlier assessment phase, the board referred the project to an environmental impact review, a long and costly process. "The review board was required to consider the impact of the development on the environment, including any cumulative impact that is likely to result, the significance of any such impact, and whether mitigative or remedial measures are necessary," the company's legal application states. "The review board failed to consider these matters and instead deferred their consideration to the environmental impact review." As a result, De Beers says the board erred in law and exceeded its jurisdiction. De Beers is also wondering why the Gahcho Kue mine has to go through the more rigorous review than their Snap Lake project.

An open pit

But Martin Haefele, who speaks for the Mackenzie Valley review board, says the difference is Snap Lake is an underground mine, while the Gahcho Kue project will be an open-pit mine near the treeline. He says it requires the draining of a lake and therefore poses a greater threat to fish and wildlife. "As we all know, caribou numbers have declined in recent years and there is a very big concern the diamond mines may have something to do with it, and this one is proposed on a known migration route," he said. The board wants the environmental effects of the mine to be discussed at public hearings in Lutsel Ke, Fort Resolution, Behchoko and Detah. Whether those hearings take place depends on the judgment of the territory's Supreme Court. The application will go before a judge on Aug. 25.

 

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