MAC: Mines and Communities

Arms and a hammer used against Canadian First Nation

Published by MAC on 2006-06-07

Arms and a hammer used against Canadian First Nation

7th June 2006

Last week we reported that BHPBilliton plans to sue a trade union in Canada for allegedly obstructing operation of its Ekati diamond mine.

Now a much more junior company, Platinex, is suing a First Nations' (native Canadian) community in Ontario, claiming that its exploration has been disrupted.

In response the First Nation is challenging the constitutionality of the Ontario Mining Act for failure to prioritise exercise of aboriginal and treaty rights and observe consultation with aboriginal parties.

Platinex has employed an ex-British soldier to "front" its encroachment on the native territory, claiming he has the expertise to cope with a "potentially volatile situation".

Other communities have been this way before - though not in Canada. The former Scots Guard officer, Tim Spicer first cut his "civilian" teeth by setting up Sandline, a mercenary outfit become notorious for serving mining companies and the governments which back them. But in Papua New Guinea, Spicer bit off more than he could chew, when a peoples' revolt exposed his plot (conjured up with prime minister, Julius Chan), to invade Bougainville and repossess Rio Tinto's Panguna mine.His colleague, Simon Mann, is now in jail for plotting an oil coup last year in Equatorial Guinea.

Spicer has gone on to become the second biggest profiteer from the invasion of Iraq through his "security" outfit, Aegis, which has so far reaped over £246 million.

When asked by the Guardian newspaper (May 20) to justify his exploits in Sierra Leone and Papua New Guinea, Spicer declared: "We were there at the request of the democratially elected governments...The idea was well before its time."

No doubt the gun-wielding Paul Gladstone of Wonderlic would be among the first to agree.


Anchor/Reporters: ALAN NEAL, JODY PORTER

2nd June 06

ALAN NEAL, ANNOUNCER: Now of course land disputes involving First Nations are becoming familiar ground for people in Ontario not only the Caledonia situation but in Northern Ontario. There's a case of a First Nation being sued for $10 million by an exploration company. You may remember this company says the protest by the First Nations disrupted its search for platinum and in that case is bringing to light what some people are calling an alarming new development in the way these disputes are handled. The CBC's Jody Porter joins us from our Thunder Bay studio with more details on that alarming development. Hi, Jody.


NEAL: So what is this alarming new development?

PORTER: Well it's the use of a former soldier to provide security for a private company doing business on disputed land and to get to why that's alarming some people – put your parka on, Alan, we're going to go back to February.

NEAL: Oh, okay, great thanks.

PORTER: You might remember that's when an exploration company called Platinex was looking for platinum and palladium near Big Trout Lake.

NEAL: Right.

PORTER: But the people of the nearby First Nations that's Kitchenuhmaykoosib issued the company with an eviction notice. The community said the exploration work was a violation of its ban on resource development on their traditional lands.

NEAL: Told them to get out.

Exactly. We now know that after they were served with the eviction notice the company brought in a former British Army officer named Paul Gladstone.

NEAL: How did we find this out?

PORTER: Well it's part of that lawsuit, that $10 billion lawsuit you mentioned in the introduction. Platinex is suing the community over the eviction and Gladstone had to file an [2J[H affidavit as part of those proceedings.

NEAL: Okay, so they brought in a former British army officer. Why is that so alarming?

PORTER: Well it has to do with Paul Gladstone's military background and his experience providing security to mines in South America and the middle East. A spokesperson for Kitchenuhmaykoosib says bec ause of those two factors he has serious concerns about Gladstone's role in this dispute. John Cutfeet says the fact that Platinex brought in an ex- soldier to deal with the conflict makes him think of the way that land disputes are settled in the third world.

You've heard of situations in other countries where there's these people ending up starring down the barrels of guns of the military and the police. So this is something at a different scale. That is a concern that they were prepared to send this person, a mercenary if you will, to come and enforce the drug program.

NEAL: Wait a second, Jody, mercenary, it's a fairly loaded word.

PORTER: I thought so too. I've heard it a couple of times working on this story and so I looked it up in the dictionary, it's definition there, "a foreign soldier hired for private gain."

NEAL: So what do we know about Mr. Gladstone?

PORTER: His private securities firm Wonderlic and Gladstone have offices in Canada and the U.S. and that's where I reached him. Gladstone was understandably reluctant to talk about the specifics of this case because it's currently before the court. But he did say he'd be happy to talk to me once the case concludes because he thinks there will be a growing demand for his services as mineral exploration heats up here in Northern Ontario.

NEAL: So much as I understand what his services actually are was he armed when he went to the drilling camp?

PORTER: Well that's something I haven't been able to find out but the lawyers in the court case are planning to ask him that question once they get him in court.

NEAL: So did the company explain why it hired this former soldier in a dispute? So then how does the company explain its hiring of a former soldier in this dispute?

Affidavits filed by the company give the impression that employees were really frightened by the First Nations they encountered, the First Nations people they encountered.

NEAL: Right but does it explain what Gladstone actually did?

PORTER: Well in his account filed with the court he talks about meetings with the OPP. He's very critical of what he [2J[H sees of the OPPs unwillingness to provide the workers with security. He talks about scouting around for different routes for the workers to get away from the drilling site if need be. And he talks about meeting with chief and councilors and various people from the community. And again he talks about being intimidated or frightened and the workers feeling that way too.

I should say, Alan, that the chief of Kitchenuhmaykoosib has a very different version of events. He described it to me as having a relaxed cup of tea over the camp fire at the drilling site with Gladstone and the workers.

NEAL: So slightly different views of what happened.

PORTER: Definitely. So these discrepancies will get hammered out in court but in the meantime because of the lawsuit media questions to Platinex are now going through their lawyer. And here's how Neil Smitheman explains Gladstone's role.

NEIL SMITHEMAN, PLATINEX LAWYER: Well the company felt that it needed someone who had some experience. Could act as a spokesperson for the company. Mr. Gladstone, in particular, had the security expertise as well to assess and manage a potentially - what was perceived as a potentially volatile situation to ensure that it - this is the kind of thing that would not get out of hand.

NEAL: But experience and expertise in what, did they ever explain this?

PORTER: In - well they talked about his experience in managing and assessing security situations. They also talked his experience in dealing with large equipment over long distances with the British military and that was something that was needed here for their drilling equipment.

NEAL: Oh, okay. Is there anything to suggest the First Nations should be concerned about private security hired by Platinex?

PORTER: Well Madelaine Drohan thinks it's the beginning of a disturbing trend. Drohan is a Canadian journalist and the author of "Making A Killing, How And Why Corporations Use Armed Force To Do Business." Her expertise, Alan, is in a third world country where mining companies regularly use hired soldiers to provide security at mine sites. Drohan sees similarities between this situation and what she's seen in other countries and she says she was surprised to hear about what's happening in Canada in Ontario at Kitchenuhmaykoosib.

MADELAINE DROHAN, AUTHOR: When emotions start getting hot and there's a protest over land, you know, things can get out of control very quickly and I would be concerned in this case that you couldn't get the police there fast enough to restore order and that someone might be hurt. But you know someone - the governments involved will really have to step in now and, you know, take a good look to prevent something [2J[H like that happening.

NEAL: So what is the government doing in this case. I mean certainly we've heard about the lack of action or the slow action in the case of Caledonia. What's happening here?

PORTER: Well they're becoming reluctant players in this case in Kitchenuhmaykoosib. You'll recall the government largely stayed out of the dispute as it was unfolding during the winter.

NEAL: Uh-huh!.

PORTER: But now as part as their defence to the Platinex to the lawsuit Kitchenuhmaykoosib has named the province as a third party in the case. They're arguing that since the province gave Platinex the permit to operate on land claimed by the First Nations it's the province that's to blame for this whole dispute.

So because the government is now involved in the lawsuit the Minister of Northern Development and Mines is among those who are reluctant to talk specifically about the situation. But I asked Rick Bartlucci to explain in general terms what he thinks of the use of former soldiers as private security during land disputes.

RICK BARTLUCCI, ONTARIO MINISTER OF NORTHERN DEVELOPMENT AND MINES: We would hope that through the engagement process along the way that there would be a relationship built up based on respect and trust and as we move forward we would move forward as partners in the development of any particular property. However, I can't micromanage what a particular mining company would choose to do.

NEAL: Huh! So when does all this go to court?

PORTER: The next court date is later this month. That's where things could begin to look a lot like Caledonia, Alan. The - like the developer there Platinex is asking for a court injunction to keep the First Nations protestors far away from its drilling camp so it can continue its work. So I'll let you know how that court date works out.

NEAL: Right, or if the court injunction is in fact any more effective than the judge put out in Caledonia as well. Jody, it's interesting, thanks very much.

PORTER: No problem.

NEAL: Jody Porter is with the CBC Radio in Thunder Bay.

Kitchenuhmaykoosib Inninuwug First Nation Says Ontario Mining Act Unconstitutional via MiningWatch Canada

26th May 2006

Kitchenuhmaykoosib Inninuwug First Nation (KI - Big Trout Lake) has today filed documents with the Ontario Superior Court to protect its lands and community from an injunction application and lawsuit for $10 billion by Platinex Inc. KI is challenging the constitutionality of the Ontario Mining Act for failure to provide priority to the exercise of aboriginal and treaty rights for consultation with aboriginal parties and accommodation of their rights and interests.

The documents answer Platinex's lawsuit against KI and counter suing Platinex. The third party claim is against the Province of Ontario and seeks a declaration that the Mining Act regime is unconstitutional and that mining authorizations granted to Platinex should be struck down. There is also an injunction motion against Platinex seeking to stop its drilling activity pending trial.

These materials, and supporting evidence, were all filed with Superior Court of Justice in Thunder Bay, Ontario, Canada, the morning of May 26, and are now public. The third party claim is not actually filed and served at this time, as there is a rule that Ontario must be given 60 days notice before filing any claim against it. That notice was given on May 23, and Ontario is on notice.

Government and northern First Nation agree on forum to discuss resourceissues

Thunder Bay Chronicle-Journal

21st March 2006


A northern Ontario First Nation is negotiating a new deal with the province for sharing the benefits of mining, forestry and hydro development in the remote North.

Nishnawbe-Aski Nation Chief Stan Beardy and Natural Resources Minister David Ramsay announced the establishment of the Northern Table on Tuesday in Thunder Bay, during the annual winter chiefs assembly.

``We are happy to inform you that the presentation made by Minister Ramsay has been accepted by the chiefs,'' Beardy told a news conference.

Beardy, who represents 49 Nishnawbe-Aski communities in northern Ontario, said the announcement will allow NAN to engage the government in talks regarding ``prosperity for my people.''

Ramsay called it an historic day for Ontario, and a first in government-to-government negotiations with First Nations.

``It's a forum for discussion that will be driven by NAN,'' said Ramsay. ``They will drive the agenda and set the time frames.''

Although Ramsay and Beardy were smiling and shaking hands at the news conference, there appears to be some dispute over a moratorium on development while the Northern Table talks are held.

Beardy said the NAN chiefs' position is that a Supreme Court decision mandating consultation with First Nations must be respected.

``We want to make sure that before anything happens on our territory, any further development happens, that there has to be proper consultation,'' Beardy said.

Ramsay said halting development in the North is ``not a good idea.''

``We don't want to interrupt the prosperity and the development of their resources as we now sit down together for the first time,'' Ramsay said. ``It would be very disruptive because we want to grow that pie.''

Eight First Nations communities, including Big Trout Lake, have imposed moratoriums on mining and other development on their territorial lands.

Ramsay said there's ``no legal right'' for the moratoriums to be upheld.

``Not under law, no,'' Ramsay stated. ``That is an issue that is probably going to come up at the Northern Table.''

Ramsay said the Mining Act, in its current form, is a powerful piece of legislation that allows mining companies to stake claims on almost any piece of land in northern Ontario.

Other First Nations in the North, such as the Treaty 3 communities near Kenora, will be given progress reports and will be considered for full inclusion in the future.

Ramsay said he's spoken with Treaty 3 Chief Arnold Gardner about the Northern Table, but the province chose to start negotiations with NAN because of its large land base.

Big Trout Lake First Nation band councillor John Cutfeet said he was disappointed with Ramsay's decision not to acknowledge the moratorium on development.

``All they're saying is, `We need the territory now, and we'll give you part of that', and there's nothing to address what has happened in the past,'' Cutfeet said.

(Thunder Bay Chronicle-Journal)



1st March 2006 Mercredi 1er mars 2006


Mr. Howard Hampton (Kenora-Rainy River): My question is for the Premier. One year ago, with much fanfare and self-congratulation, your government announced a new approach to aboriginal affairs. You said, "Our new approach calls for working with aboriginal people."

Recently, the chief in council of the Big Trout Lake First Nation informed your government officials that they were opposed to a mining exploration company conducting drilling operations in the First Nation's traditional territory without your government first consulting with the First Nation.

Instead of your government consulting with the people of Big Trout Lake First Nation, you gave the mining exploration company the go-ahead to begin drilling in the First Nation's traditional lands, and when the people of the First Nation protested this, you sent in the OPP.

Premier, can you tell aboriginal people across this province, what happened to your promise to work with aboriginal people? What happened to your specific promise to respect and observe your legal obligations in respect of aboriginal people?

Hon. Dalton McGuinty (Premier, Minister of Research and Innovation): To the Minister of Northern Development and Mines.

Hon. Rick Bartolucci (Minister of Northern Development and Mines): In incidents like this, it is always good to ensure that the facts that are given are facts that can be substantiated. Let me tell you that my ministry has been in contact with both the First Nations community and the company in question. We are very happy that the company has chosen to vacate the site and that police levels have returned to normal.

Mr. Hampton: This is not about the company; this is about your promise to consult with First Nations. This is about the Mikisew Supreme Court of Canada decision, which says that before you're going to build a winter road on traditional First Nation territory, before allowing a mining company access to their traditional territory, you must consult with the First Nation about their legitimate interests and rights. You didn't consult with the First Nation; you simply gave this mining company the go-ahead to go into their traditional territory and start drilling, and when people protested, in go the OPP.

I'll tell you, Minister, a chief of NAN and the chief of Big Trout Lake First Nation want to know when the McGuinty government is going to start observing the law of Canada as set down by the Supreme Court of Canada. When are you going to start observing the promise that you specifically made a year ago to First Nations to respect not only their constitutional rights, their treaty rights and their legal rights --

The Speaker (Hon. Michael A. Brown): The question has been asked. The Minister of Northern Development and Mines.

Hon. Mr. Bartolucci: There's absolutely no question that our government is committed, through the Ontario Secretariat for Aboriginal Affairs, to meet our legal obligations with the duty to consult. Ontario is preparing draft consultation guidelines to assist ministries in fulfilling that consultation, and that's being done through the minister responsible and through OSAA.

Let me tell you that when it comes to mining issues, we've very clearly spelled out in our mineral development strategy that the duty to consult will be lived up to as to the Mikisew Supreme Court ruling.

Stakes are high as miners and natives square off

Remote site's platinum riches touch off fight over land rights

Bell Global Media Publishing.

22nd February 2006

BIG TROUT LAKE, ONT. -- It may not look like much: a white canvas tent, a five-kilowatt diesel generator throbbing on the frozen muskeg and two miners puffing in the winter air. In fact, the setup was so small that the men and their equipment had fit into the belly of a Twin Otter plane that landed on a nearby frozen lake the day before.

But this tiny wilderness camp in a forgotten corner of Northern Ontario is the scene of a dispute that may have an impact across the country.

The outcome may prove pivotal for the welfare of native communities in Northern Ontario and may set a precedent that could alter the way Canada manages its natural resources.

At stake is the notion dating back to the days of the Yukon gold rush and beyond -- the idea that anybody can stake a claim on Crown land, buy a licence and begin digging or drilling for valuable resources.


But while the miners who arrived at the site last week believe they have the right to dig, the Big Trout Lake band is arguing that aboriginals never signed away ownership of the land to the European settlers in early 20th century treaties.

Big Trout Lake, along with six other native communities in Northern Ontario, and several environmental organizations, has called for a moratorium on all mining and logging in the region until a proper land-use survey is done and a deal on resource sharing is agreed upon.

At stake is a huge amount of money. According to Platinex Inc., the Southern Ontario company that has staked and leased the remote drilling site, the Big Trout Lake claim alone could prove to be the largest deposit of platinum in North America.

The nub of the argument put forward by Big Trout Lake is that although the land is outside the reserve it is theirs, at least in part, by inheritance.

"They think they can ride roughshod over us like in the old days," said Chief Donny Morris of Big Trout Lake (the reserve has recently renamed itself the Kitchenuhmaykoosib Inninuwug First Nation).

"But this is our birthright, our God-given right. The community wants to be involved."

The seeds of the current conflict were sown eight years ago when Platinex was incorporated and began seeking rights from provincial authorities to drill near Big Trout Lake.

Platinex president and chief executive officer James Trusler said he tried many times to win the approval of the band for the drilling but was rebuffed. The Supreme Court of Canada has ruled in several cases that natives must be consulted in such situations.

"Some members of the band were happy with us, others were not. They just tried to get us off so they could get the land," Mr. Trusler said.

The company has spent $600,000 on the claim and expects to spend $1.5-million by the end of winter, he added.

The company has decided to push ahead without the title dispute being settled. But Big Trout members cite examples from Quebec, the Northwest Territories and Atlantic Canada in which courts have ruled that the native communities must be allowed to benefit from the resources of the land.

The band says that under the Treaty of Adhesion in 1929, when Big Trout Lake reached a deal with the Crown, it agreed to share the land with the settlers -- not forgo its rights to it.

The land staked by Platinex is also subject to a treaty land entitlement claim by the Big Trout Lake band.

This land redistribution process, which has been going on for years, stems from recognition by the federal government in the 1980s that it cheated the natives out of some of the land it promised them in treaties.

Based on experience, native groups fear that if mining and logging is allowed to go ahead willy-nilly, the environment will be ruined.

The last company to drill near Big Trout Lake, for example, dumped large boxes of core samples on the fragile muskeg when it packed up and left several years ago.

"About 20 years ago, mining exploration destroyed an important area for hunting and fishing sturgeon. We have no assurances that new exploration will not bring similar problems," Allan Beardy, an elder with the nearby Muskrat Dam First Nation, said in a letter signed by seven native groups, calling for a moratorium on mining exploration and forestry in Northern Ontario.

"First nations are not anti-development. They are anti-development that is destructive and doesn't benefit them," said Francis Thatcher, a Thunder Bay lawyer who represents many native communities.

"Northern Ontario is a generation behind in terms of the government response. The first nations were getting more respect in the 1980s."

Frank Beardy, a former chief of Muskrat Dam, explained the native opposition to such ventures as drilling, mining and logging. "There are millions of dollars out there and we live in islands of poverty. We're not against development. We just want a piece of the action. And we want some environmental protection," he said.

"We've been after revenue-sharing for countless numbers of years. Now we need to evict the intruders until the matter is resolved," Mr. Beardy said.

Environmental groups have also weighed in, criticizing Ontario Premier Dalton McGuinty for his failure to live up to promises he made while in opposition to institute comprehensive land-use planning.

The Wildlands League has called on the Premier to protect Ontario's huge boreal forest, which is home to woodland caribou, wolverine and many other species of wildlife at risk.

Last week, native leaders who had been watching the winter road for signs that Platinex might try to truck in a drilling team against their wishes were caught unawares when the company flew a team in.

By the time Big Trout Lake members reached the remote spot the next day – a draining journey by truck and snowmobile in temperatures of -30 -- the first two-man Platinex construction team was in place.

David Sainnawap, 46, who works for the band, was one of the scouts. "I've always had a deep feeling that this is ours. They shouldn't just come and take something that doesn't belong to them," he said.

Platinex has refused to call off drilling operations and the ban d leadershiphas become increasingly frustrated.

The Ontario Provincial Police flew in an extra man, Inspector Darrell Smiley, to try to smooth over the differences, but he met with little success and left late last week.

Mr. Trusler said this week that his workers had been threatened but that he was planning to proceed regardless.

"We've informed police and government we've received threats but we're proceeding. I hope to start drilling soon," he said.

The tactics of both sides will be dictated by climate and geography as much as any legal considerations.

Band officials say that mounting a protest at the site in current frigid temperatures is not workable, but they may try to block the winter road to prevent a heavy drill from arriving.

Members of Big Trout Lake say that they eschew violence but are determined to resist the drilling.

"Our people have already given up a lot. We've already lost a lot," said John Cutfeet, who is in charge of environmental issues on the Big Trout reserve.

"The whole idea of the treaties was that we live in peaceful co-existence and share resources. That never happened."

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