First Nation court action against Ontario could invalidate all mining claims in the province

A court action launched by Grassy Narrows First Nation against Ontario could invalidate all mining claims in the province, a lawyer representing the Indigenous group said – a scenario that could cause havoc for the industry.

Grassy Narrows on Friday served Ontario with a notice of application asking the Ontario Superior Court to mandate individuals and companies to consult with the First Nation before seeking mining claims.

The Globe and Mail earlier in the week reported that the legal action was pending.

Currently, 10,168 mining claims have been given out in Grassy Narrows’s traditional territory without its consent. The First Nation says that Ontario’s current staking system violates both the government’s duty to consult the Indigenous people under Section 35 of the Constitution, and the United Nations Declaration on the Rights of Indigenous Peoples, which requires free, prior and informed consent.

In addition to requiring the industry to consult the First Nation for future mining claims, Grassy Narrows is asking the court to rescind all mining claims that have already been granted.

If the court rules that historic mining claims in its territory are invalid, it’s logical to conclude that all mining claims given out historically in Ontario are invalid, said Jackie Esmonde, a lawyer with Cavalluzzo LLP, who is representing the First Nation.

“If it’s unconstitutional for Grassy Narrows, then it would be unconstitutional throughout the province,” Ms. Esmonde said in an interview at Queen’s Park following the legal action being launched.

“It’s a product of the way the Constitution works. If it’s invalid under section 35, then section 52 says the law is of no force and effect.”

While a drastic outcome, if all mining claims in Ontario are deemed invalid, it could also have implications for existing mines that are in operation because of historic mining claims that were granted.

“That could be avoided if Ontario would actually sit down and talk to Grassy Narrows, as we’ve been asking for many years for them to do,” said Ms. Esmonde.

Jack Fazzari, press secretary for Ontario Attorney-General Doug Downey, declined to comment earlier in the week when asked about pending legal action from Grassy Narrows. Mr. Fazzari did not immediately respond to another request for comment on Friday.

Grassy Narrows for years has attempted to meet with the province to discuss the matter. Last year, the First Nation staged a rally in Toronto alongside several other First Nations to protest the alleged unconstitutionality of the free entry system.

An Anishinaabe First Nation in Northwestern Ontario, Grassy Narrows is located about 80 kilometres north of Kenora. Its traditional territory covers approximately 7,500 square kilometres within the Treaty 3 area.

While prospecting work is far less disruptive than mining, Grassy Narrows maintains that mining claims harm its traditional hunting, trapping, fishing and medicine-gathering grounds. The First Nation says that individuals or companies holding mining claims can conduct assessment work on the land, which includes building trails for heavy machinery, clearing trees and brush, digging pits and trenches, and stripping the soil off the bedrock.

“We want our land to remain intact because of our cultural practices, our way of life,” said Grassy Narrows Chief Rudy Turtle at a news conference at Queen’s Park on Friday.

“Many of our people still go hunting, fishing, and they go into the land to gather blueberries and wild rice and other natural means of sustaining our life, including our herbal medicines and medicines that you get off the land.”

Grassy Narrows legal action against the province follows a successful case in British Columbia last year that saw two First Nations successfully argue that its prospecting system is unconstitutional. British Columbia has committed to moving away from its free-entry system for staking and now requires prospectors to consulate the Indigenous Peoples.

Ontario’s free-entry system makes it easy for individuals and companies to file a mining claim online in return for a nominal fee. Claims have risen at a dramatic pace since the system moved online in 2018. More than 369,000 claims are currently active in Ontario representing 11.5 per cent of the area of the province, according to data from the Ministry of mines and Meg Southee with the Wildlife Conservation Society Canada.

The number of claims in Grassy Narrows has more than doubled since 2018. Mining claims and tenures make up 29 per cent of its traditional territory, or 2,858 square kilometres.

Industrial activity around Grassy Narrows saw about 9,000 kilograms of mercury dumped into its rivers in the 1960s and 1970s, contaminating the First Nation’s rivers and supply of fish, and leaving many of its population suffering health impacts from mercury poisoning.

Michael Fobister, Grassy Narrows land protection team supervisor said he has lived mostly off the land his entire life and as a child went out trapping with family members. But recently, he suffered through the mercury contamination first-hand because his family caught and ate fish contaminated with the poison.

“It was our way of life, living off the water, eating the fish,” he said. “And that was taken away.”