First Nation calls mining stakes 'unlawful, invalid' as it challenges Ontario's free-entry system - Action News
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Thunder Bay

First Nation calls mining stakes 'unlawful, invalid' as it challenges Ontario's free-entry system

As prospectors eye up the mineral-rich lands of northern Ontario, many First Nations are retaliating against the province's mining push. Here's why Gull Bay First Nation, north of Thunder Bay, Ont., is calling mining claims staked around its lands unlawful and invalid.

Chief warns of legal action if community's concerns aren't addressed by province, Ottawa

A man in a blue suit with a red and blue tie speaks at a microphone.
Wilfred King, chief of Kiashke Zaaging Anishinaabek (Gull Bay First Nation), is speaking out after an influx of hundreds of mining claims that have been staked near the community. He says these claims may prevent the First Nation from proceeding with a current land claim to expand its reserve. (Sean Kilpatrick/Canadian Press )

A First Nation in northwestern Ontario has issued a public notice to warn mining prospectors away from its traditional territory, and says the province's free mine staking system is putting a potential treaty settlement at risk.

The notice by Kiashke Zaaging Anishinaabek (KZA), also known as Gull Bay First Nation, saysit opposes recent mining claims made in its vicinity,and will "take all measures necessary to ensure that our interests in these lands are respected and protected," which could include legal action.

Kiashke Zaaging Anishinaabekis an Anishinaabe community situated on the western shores of Lake Nipigon, about 175 kilometres north of Thunder Bay, and has about 1,500 members.

The First Nation has an outstanding land claim against Ontario and Canada about the expanse ofits reserve, Gull River 55, and is in the land selection process to expand it by eight to 10 times its current size. This would help recover lands promised in the Robinson-Superior Treaty of 1850.

But Chief Wilfred King saidthe influx of mining claims may prevent this from happening.

"Gull Bay would not be able to access these lands anymore for [the] reserve, even though they're within three kilometres of our existing boundary," said King. "How can you extend your boundary when these lands are already taken up by mining claims?"

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There are hundreds ofmining claims staked out nearKiashke Zaaging Anishinaabekthat arelisted on Ontario'sonline claims map.

King saidthings have heated up in the past month, in what he describes as a"lithium rush." The mineral is a key element needed in the production of electric vehicle (EV) batteries. It's one of severalcritical minerals found in northwestern Ontario thatare neededto fuel North America's growing EV industry.

Several First Nations in the areahave been clearthey won'tallow mining in the region without their consent and have restated that position several times this year.

"This is not only a Gull Bay issueit's an issue of national importance and also of provincial importance," said King.

CBC News contacted the office of George Pirie, Ontario's mines minister, for comment on this story, but hadnot received a response by time of publication.

Premier Doug Ford and other provincial ministers have maintained they are open to consultations and building consensus when it comes to northern development, though they have not directly addressed the concerns of First Nations leadership on this issue.

Online staking system causes tension

Kiashke Zaaging Anishinaabek's land claim dates back more than a decade. In March, the claimmoved intoa step known as a land selection and compensation process, where the First Nation is looking to extend the area of its official reserve. At the time, there were few claims around Gull Bay, but that's changed since then, King said.

"There [were] basically little or no claims in the vicinity of Gull Bay First Nation," King said. "Had we gotten [approval for the land selection process] earlier, we would have probably had the land selection done and those protection measures would have been in place."

The issue, he said,is Ontario's free-entry system, where prospectors are allowed to register claims onlinewithout having to travel on the land and physically make a claim.

"Under this new system, anybody from a computer, whether they be in New York, Australia, Hong Kong, they could stake a claim to an area in northern Ontario that's on the Crown land," King said."This can be done in a matter of minutes."

A man speaks into a microphone.
Chief Rudy Turtle of Grassy Narrows First Nation speaks with other members of the First Nations Land Defence Alliance in July during a rally against mining proposals on their land. First Nations in northwestern Ontario have organized several events to make their position on this issue clear. (Evan Mitsui/CBC)

He said the problemis the system does not warn prospectors if the lands they are staking are subject to outstanding claims by First Nations. In the case of Gull Bay, that means prospectors may notknow about the land selection process underway.

King also said the online registry does not live up to the provincial government's and Ottawa's duty to consult on mining claims, since First Nations are only alerted about the claims after they've been filed.

Economic argument for free-entry system

Martin-Joe Ezeudu is a lawyer and assistant professor at the Bora Laskin Faculty of Law in Thunder Bay. He teaches mining law, and his research has focused heavily on natural resources and extractive industries.

Ezeudu explained that the modernization of mining in Ontario was spearheaded by the Mining Amendment Act of 2009and theAggregate Resources and Mining Modernization Act of 2017.These two pieces of legislationare what facilitated the current free-entry system, makingit easier, and more lucrative, for prospectors to stake claims as Ontario shifts togreen energy.

"Mining is a capital-intensive business, it involves high risk and exertion of expertise, and the fact that a company or an individual registers a mining claim does not mean that that leads automatically to finding a mineral," Ezeudu said.

"[The] government does not want to add additional burden by having any form of restriction on access to land first, knowing that most times, registering a claim does not lead to finding the mineral and that when that happens, the land returns back to the government."

A man stands outside a building.
Martin-Joe Ezeudu is a lawyer and assistant professor at the Bora Laskin Faculty of Law in Thunder Bay. His research has focused heavily on natural resources and extractive industries. (Sarah Law/CBC)

The surge of claims isn't surprising, given the ease of staking them online,he said. While this may be alarming, particularlyfor First Nations, he pointed out that most claims won't yield actualmining activity.

Even with online staking, the Crown still has a duty to notify and consult with First Nations once a claim is staked.

Ezeudu argues that Ontario'sMining Act does require more consultation than before.

"At every important stage in the mining process, immediately after staking, consultation must be done with any Indigenous people or [First] Nation affected by any claims registration," he said.

The government has the power, and duty, to take land back from a prospector if it impedes on First Nations' treaty rights. But Ezeudusaidonce a prospector stakes a claim, it can be very difficult for the government to take it away.

Challenging mining claims 'by any means necessary'

Community leaders in Gull Bay held meetings with their members on Saturday, when Kingsaidthey received a mandate to speak out.

"Knowing that these lands were promised to us since 1850 and knowing now that these lands may be excluded from our addition to our reserve, they're very, very upset," hesaid. "They fully support chief and council in whatever measures they take deemed necessary to put a stop to this."

As of Tuesday, King said, he had briefly met with representatives of both provincial and federal levels of government, but he hasn't been given a full response yet addressing his concerns.

"We're looking at all legal avenues, we're looking at public education, and if necessary, we will exercise our right to protest this."