Mining Scars Run Deep

Court to draw line between aboriginal and development rights

Peter Gorrie
The Toronto Star

Tuesday, June 20th, 2006

A tiny mining company and an impoverished First Nations battle over exploration in Ontario’s north The outcome in court could have far-reaching effects on development plans, writes Peter Gorrie

KITCHENUYMAYKOOSIB INNINUWUG, Ont.—The bright green scar in the forest is a beacon to the pilot and six passengers crammed inside a Beaver float plane as it carves a steep, low turn over Little Trout Lake.

A clearing, perhaps the size of two suburban lots, has been cut out of what seems an endless expanse of virgin jack pine and black spruce.

The plane lands and coasts to a sagging dock. The visitors, swatting mosquitoes and blackflies, venture into a junkyard of rusted tools, oil drums and nails; rickety tables and benches; lumps of pale blue foam and bits of plastic and lumber.

At weathering wooden racks, they finger a few of thousands of inch-thick rock cylinders, stacked in neat, numbered rows. These are cores — the product of tough days of deep drilling for evidence of minerals.

Nearby, trails marked with fluorescent orange ribbons crisscross the soggy, moss-floored bush.

This is a mining exploration camp — abandoned, at least temporarily. Nearly 600 kilometres north of Thunder Bay, it’s far beyond roads and was still chilly while the GTA sweated through a recent heat wave.

It’s the unlikely centre of a legal battle that could change the way Ontario’s far north is developed.

Across this vast, little-visited region, a young generation of aboriginal people — unimpeded, they say, by the fears that hobble their elders — is challenging the way forests, minerals and hydro resources are exploited. In a far-off echo of the Caledonia dispute, nine scattered, impoverished First Nations have declared a development moratorium on lands they claim as traditional territories.

On a lumbering aircraft like the Beaver, the scruffy camp is 20 minutes — across large, cold Big Trout Lake — from a First Nation called Kitchenuymaykoosib Inninuwug, or KI.

KI objected to what was going on at the camp. That led to the crucial court challenge. It begins Thursday in Thunder Bay.


Under a 1929 treaty, KI was given a reserve of about 8,800 hectares. Six years ago, it claimed close to 51,000 more. The exploration camp is in that area.

Nickel giant Inco Ltd. once worked here: It left behind the drill cores. Early this year, Inco sold its mining leases to an Aurora-based company called Platinex Inc. for $300,000 in cash and shares. Platinex hopes to discover platinum, a precious metal far more expensive than gold, that’s in hot demand for electronic gear and devices to cut emissions from cars.

According to court documents, until last fall Platinex believed it had community consent to conduct exploration drilling. Even after receiving an Aug. 30 letter that stated KI opposed the work, it still hoped for agreement. It figured the community was split and the divisions could be reconciled. But over the winter, all but a couple of voting-age residents signed an anti-development petition.

“Whoever was for mining is now against it,” says Eddie McKay, who runs the water treatment plant and collected the signatures.

In February, a drill crew contracted by Platinex arrived, with the province’s approval. Community members crossed the then-frozen lake to protest. They describe encounters with drillers as peaceful and friendly.

After a week, the crew hurriedly departed. Last month, Platinex, alleging violence and intimidation, sued KI for $10 billion and a ban on protests.

KI sued back, demanding $10 million and an injunction against exploration.

All of this — apart from the headline-grabbing size of Platinex’s claim — promised a routine local legal tussle. After all, these are not mighty combatants.

KI is poor. Platinex is, like any junior exploration company, on the financial edge: President and CEO James Trusler stated in a pre-trial session it would go bankrupt without quick approval of its exploration plan.

But KI has elevated the case into one with wide implications.

First, it argues, when the Ontario government gave Platinex the go-ahead to drill, it ignored a recent Supreme Court of Canada ruling that provinces must “consult with and accommodate” First Nations before approving developments on land that has been claimed.

It also wants the Ontario Superior Court of Justice to declare the provincial Mining Act — which, under “free entry,” lets prospectors seek mineral riches almost wherever they please — violates Canada’s Charter of Rights and Freedoms.

Since free entry doesn’t apply to reserves, KI would be home free if its land claim was accepted. But claims take years and, by the time this one is resolved, the entire territory might be developed. So the community is trying to erect a different legal barrier.

“The court case is totally crucial … critical,” says Anna Baggio, director of conservation at the Toronto-based Wildlands League, which supports KI.

In part, it’s about protecting the boreal forest, the fragile, lake-studded wilderness of pine, spruce, birch and poplar that covers the huge swath between Canada’s populated south and treeless Arctic.

The southern half of the boreal is dominated by logging roads, massive clear-cuts, mines, dams, power lines and other creatures of the industrial world. The northern half, where KI lies, is almost untouched; one of Earth’s last intact forests.

The battle is also about aboriginal rights.

Most development would inevitably be on what First Nations consider traditional lands: Their combined claims cover virtually the entire far north.

Dalton McGuinty promised during the 2003 election campaign to curb development until a land-use plan is negotiated.

Now, though, Queen’s Park promises to ensure Ontario remains “one of the most favourable investment climates in the world” for mining companies. It paved the way for the province’s first diamond mine — a project by South African conglomerate De Beers, near Attawapiskat, on Hudson Bay.

It rejects the moratorium. And while it proposes to discuss land use and native rights through what it calls a Northern Table, it insists industrial activity must proceed at the same time.

If KI wins, Ontario would have to rethink the current “development first” approach, and a law that “places mining as the highest and best use of land,” Baggio says.

`Any effort to change the current system would be the death of the exploration business in Canada’

Industry analyst Kerry Smith


The stakes for mining companies appear high. And almost every province would be affected, since most have similar legislation.

“It’s huge,” says KI lawyer Kate Kempton. “If we’re successful, it means you can’t just do free entry any more.”

That “would have a very significant impact on Canada’s industry,” says Tony Andrews, executive director of the Prospectors and Developers Association of Canada.

Industry analyst Kerry Smith is more blunt: “Any effort to change the current system would be the death of the exploration business in Canada.”


KI, home to about 1,000 Oji-Cree, is a motley collection of buildings spread widely over a rocky island and the nearby shore of Big Trout Lake.

It features the poorly constructed bungalows and trailers typical of reserves, along with a modern school; plain, single-storey hotel and restaurant; two stores that charge up to $16 for four litres of milk; five churches, and a scattering of band buildings painted in KI’s colours — yellow, blue and green.

The metal-clad youth centre offers computers, Xbox games and pool tables. In a grove of trees near the baseball diamond, lumber, tires, ladders, doors and other discards create a paintball battleground. A few people run small businesses from their homes — an ice cream shop, DVD rental and snack stores, a taxi company.

The garbage dump is an eyesore, but the water is drinkable and sewage treated.

Many here still bear scars of the past, including the trauma of residential schools and years of sexual abuse of young boys by an Anglican priest.

While the community is officially dry, alcohol and drugs get in. Some use them “to cover the impacts of unresolved things they went through,” says band council member John Cutfeet.

In the past few months, two suicides — first the father, then the mother, of eight kids — and a pair of murders rocked the community.

Kids stay in school until the end of Grade 8. But during the next two years, most quit. Hardly any leave KI for post-secondary education; the few that succeed tend to stay away.

Young people want work, but jobs are scarce. Eno Chapman, KI’s director of lands and resources, says he usually has day work for just a couple of the 30 on his list. The band and school offer training and counselling, as well as traditional knowledge. But “way too many young people here are just not doing anything,” Chapman says. “There’s not enough resources or opportunities for them.”

A new mine, it seems, could ease the problem. But community members are skeptical: They’ve seen native people shut out, or quickly fired, at other mines. They also fear threats to bush ways that remain very alive.

Only a half-dozen residents still hunt and trap for long stretches of the year, but many go out evenings, weekends and holidays.

Many young people are taking up traditional pursuits and the option must be preserved, says Eddie McKay.

“I basically live off the land,” he says. His boys — aged 9, 10 and 14 — switch between computer games and the old culture.

Bush life requires a healthy environment. The stuff left behind by Inco, and earlier PCB spills from a weather station and other government installations, raise doubts development can happen without despoiling the land and water.

“If they don’t care to clean up the messes they’ve made, what makes us believe they’d clean up a mess they make with the mine?” Cutfeet says.

Mainly, though, KI says it simply isn’t ready to cope with changes.

Because of the residential school experience the community is broken in language, culture and family, says Jeannie Beardy, KI’s education director and one of the rare few who left, got a good education and came back. Programs at the school made her “quite hopeful, quite glad that we were going in the direction of becoming whole, healthy aboriginal people.”

The Platinex project could undermine that work, she says.


KI’s band has bright, sparsely furnished offices in the hotel basement. The white walls are covered with flip charts; computers are everywhere.

McKay — 45 but looking more like 30 — sits beside the square of folding tables in a conference room. Before training, the environment and social problems can be dealt with, he says, the core issue must be resolved: “It’s all about rights.”

The Platinex project was presented “as if it was Ontario’s land and not ours as it has been since creation. I don’t think people are against progress. But if you don’t recognize their rights, that’s not progress.

“If you try to run over these people, they’re going to resist.” Platinex is caught, says its lawyer, Neal Smitheman. “We’re operating under the Mining Act. Until someone tells us … it’s not in force, we have to conduct ourselves accordingly.”

KI wants “their rights settled first. I can see their point. But they need to see our point.”

Some communities to the south have joined the Northern Table. A few work with mining companies, says Andrews, of the prospectors association. “We strongly encourage our members to consult.”

Cutfeet dismisses the province’s initiative: “If you keep people in poverty long enough, they’ll grasp at any straw you give them.”

Consultation will work only if First Nations are strong and prepared enough that companies will take them seriously, he says. The legal challenges are intended to put KI and others in that position.

Discussing deals before rights are established doesn’t make sense, Chapman says. “The primary strategy is for us to become the developers ourselves. With community control, some kind of development could be done in harmony with traditional ways. … It would become more of a negotiated concept.”

That’s “a long way down the road.” In the meantime, “We can’t move from our position.”