September 3, 2006

What's Mine Is Theirs

Legal Victory for Kitchenuhmaykoosib Inninuwug First Nation

by Kim Petersen

The Dominion - http://www.dominionpaper.ca

On July 28, Justice G. P. Smith of the Ontario Superior Court presided over the decision hailed as one of the most important victories for Original Peoples in the Ontario justice system. The decision requires the publicly traded Ontario mining exploration company Platinex Incorporated to cease drilling operations in the territory claimed by Kitchenuhmaykoosib Inninuwug (Big Trout Lake) First Nation (KIFN) in northwestern Ontario. The ruling obviates the $10-billion damage suit Platinex filed against KIFN for opposing drilling on territory that KIFN claims.

The decision could be a bellwether for First Nation rights and may have major ramifications in the manner in which mining and exploratory operations are carried out in Ontario.

"Kitchenuhmaykoosib Inninuwug are excited and pleased that we have been heard," says KIFN Councillor John Cutfeet. Cutfeet believes the ruling is good news for the approximately 1,000 people in KIFN.

"This land was given to us by the Creator; it is our past, present and future. Now the Ontario Superior Court has indicated it understood our spiritual, physical, emotional and mental dependence on the land when Justice Smith said, 'The land is the very essence of their being. It is their very heart and soul.'"

"The land not only provides for us, it nurtures us; it is our teacher," continues Cutfeet. "However that gift does not come without obligation; it is our job to stand together to protect the Creator's gift so that the land will continue to be there for all of us. That is what we have done for generations, what we did in signing the Treaty, and what is required of us if we are to live in balance and harmony."

In his statement, Justice Smith concurred:

It is critical to consider the nature of the potential loss from an Aboriginal perspective. From that perspective, the relationship that aboriginal peoples have with the land cannot be understated. The land is the very essence of their being. It is their very heart and soul. 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.

Smith found that there had been inadequate consultation by Platinex with KIFN. For KIFN, consultation is a community process.

Justice Smith faulted Platinex for gambling that KIFN would do nothing to oppose the company's drilling. For this reason, Smith concluded that Platinex, saddled with a challenging debt burden, is largely to blame for its predicament.

KIFN holds that exploiting the land for resources without planning for the future is irresponsible. "We must look at the bigger picture and look to what this land offers," says chief Donny Morris. "Our resources have been taken from us and we have not benefitted from what has been extracted from our lands to be sold to the rest of the world. Kitchenuhmaykoosib Inninuwug signed a Treaty and that Treaty must be honoured by the Crown. In sharing our land, our views and rights must not only be heard, but be understood so that the land is available to help us, not just those who grow rich at our expense."

"This decision is a huge victory for the Kitchenuhmaykoosib Inninuwug and for the rights of Aboriginal communities throughout the province," says Sierra Legal lawyer Justin Duncan.

As laid out under previous Supreme Court decisions, among them Delgamuukw v. British Columbia and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), governments must consult with Original Peoples before moving onto and extracting resources from territory claimed by an Indigenous community.

"The Court has clearly stated that companies like Platinex must respect community interests and cannot steamroll over the rights of Ontario's Aboriginal communities," says Duncan.

Justice Smith noted the absence of the Ontario government, not only during the court proceedings, but also from much of the consultation process with KIFN. Smith stated that the Ontario government has a fiduciary responsibility to KIFN that is not to be delegated to third parties. The Ontario government, nevertheless, determined that Platinex's exploratory activities near KIFN would have inconsequential environmental impact.

The Ontario minister of Northern Development and Mines, Rick Bartolucci, says the judicial decision is still being reviewed. Bartolucci stresses, however, that this particular decision "does not impact the legitimacy of other mining claims in Ontario."

Critics question the legitimacy of this statement, considering that Justice Smith pointed out that the Ontario government has failed to abide by its own laws. "Despite repeated judicial messages delivered over the course of 16 years, the record available in this case sadly reveals the provincial Crown has not heard or comprehended this message and has failed in fulfilling its obligation."

Meanwhile, negotiations are expected to resume between KIFN and Platinex. Both parties are scheduled to meet with Justice Smith in five months to report on their consultations.