Ontario mining changes undermine consent, have lasting impacts | Kerry Blaise and Mike Koostachin

By Kerry Blaise and Mike Koostachin

Law360 Canada (March 8, 2023, 10:43 AM EST) --
Kerrie Blaise
Kerrie Blaise
Mike Koostachin
Mike Koostachin
As one of the world’s largest mining conferences, the Prospectors and Developers Association of Canada (PDAC) conference got underway in Toronto, the province of Ontario announced Bill 71, Building More Mines Act, 2023.

The bill proposes to amend the existing Mining Act by reducing already-inadequate requirements for mine closure plans, including the need for upfront financial guarantees, relaxing rehabilitation standards and moving ahead with previously proposed mineral recovery permits without any environmental assessment requirements. Days later, the province also announced the approval of the terms of reference for an environmental assessment for a key road link in the region dubbed the “Ring of Fire.”

The announcements were accompanied by statements by the province that consultation obligations with First Nations would be upheld. Nonetheless, the colonial origins of extractive mining, with the provincial government continuing to assume authority in Indigenous territory, were on full display: many First Nations condemned the proposed weakening of the Mining Act; and First Nations including the Indigenous grassroots, denounced the province’s approval of the terms of reference for the Ring of Fire road project, citing concerns about impacts to the region’s sensitive watersheds and the lack of engagement with downstream communities.

As the Friends of the Attawapiskat River, an Indigenous grassroots group based in Treaty 9 in the far north of Ontario, stated in a press release, the province should not “push forward a project absent the free, prior and informed consent of all communities.” Article 32(2) of the United Nations Declaration on the Rights of Indigenous Peoples requires free, prior and informed consent to be obtained for any project affecting Indigenous lands and resources, and Article 26(2) further provides that Indigenous peoples have the right to own, use and control their lands and territories.

Indigenous communities, in particular, find themselves on the “wrong side of a toxic divide,” bearing inequitable health and environmental burden of extractive industries. This is a lived reality for members of the Friends, who have been active in calling for the protection of treaty lands from mineral exploitation and degradation, including safeguarding the integrity of the muskeg in the Hudson Bay-James Bay lowlands, for the health of their grandchildren and those not yet born.

In an open letter to PDAC convention attendees, the Friends also reflected on decades of “broken promises,” from mining companies and urged treaty values and the peaceful sharing of lands be upheld:

We have seen what mining developments and broken promises can do to our people and our lands. We were promised traditional knowledge consultation and money from the DeBeers mine, both of which were not upheld. Many of our communities have not had clean drinking water for years. Our housing crisis is only getting worse which has taken a toll on our young generation, often living with no hope and in quiet desperation.

The DeBeers diamond mine, located approximately 90 kilometres from Attawapiskat First Nation, came online in 2008 and in 2020, a diamond from the site sold for a record $15.7 million. In a parallel timeline, Attawapiskat First Nation’s drinking water system came online in the 1990s, delivering running water and plumbing to homes in the community for the first time. To this day, however, the community has faced repeated water crises, through boil water advisories and water emergencies, making the water unsafe for drinking and bathing. Reverse osmosis stations which were installed as a temporary measure, have become permanent fixtures in daily routines of community members to access clean water.

Living up to the promise of reconciliation means taking action to prevent further violations of Indigenous rights. It also means judging the past week’s mining announcements, including the further weakening of the Mining Act, against the history of mining in this province and the universal framework on the rights of Indigenous peoples that establishes minimum standards for “the survival, dignity and well-being of the indigenous peoples.”

Kerrie Blaise is an environmental lawyer practising in Northern Ontario. Mike Koostachin is from Attawapiskat First Nation and the founder of the Friends of the Attawapiskat River.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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