Platinex v Kitchenuhmaykoosib Inninuwug: Extraction and the Role of Law in KI’s Struggle for Self-Determination

Rachel Ariss
Humanities
University of Ontario

Pre-Conference:

            It was an honour to be invited to speak on “Aboriginal land rights in the context of resource extraction” at the State of Extraction conference. The conference was planned to bring activists and academics from across issues and disciplines together, to see what could be learned from and with each other about how to counter the ‘state of extraction.’ The ‘state of extraction’ represents a worldview embraced by Canadian governments that permits extraction from the land in order to maximize (most often) short-term profit.

            This seemed a place where the story of the legal dispute between Kitchenuhmaykoosib Inninuwug First Nation (KI) and Platinex, a junior mining company —a story that included an application of Canada’s Constitutional duty to consult and accommodate Aboriginal peoples as well as the jailing of a leadership that said ‘no’ to mining exploration—could be a story to reflect on and learn from, in terms of Canadian law, Indigenous land rights, and activism. I expected also to learn from others’ stories and work in the different social and legal contexts of British Columbia.

            One of the overarching concerns of KI is self-determination and jurisdiction on their traditional territory. This follows from their desire to continue their practices of living their own law of relationship with the land, Kanawayandan D’aaki.1 Sometimes KI’s goals coalesce with the goals of environmental activists and sometimes they do not.2 While the effects of fulfilling KI’s connection with the land, such as protection of animal habitat, preservation of clean water, and prevention of harm from industrial uses often harmonize with environmentalists’ goals, the reasoning and purpose in KI’s approach is notably different.

            There is some tension between exercising Aboriginal land rights (as they are known in Canadian law), Indigenous sovereignty or self-determination, and environmental protection approaches. Living Indigenous land relationships and exercising Indigenous land rights are not the same as Western environmentalist principles. Although there are some harmonies, these differences must be acknowledged. I wondered as I prepared for the conference: am I able to articulate this tension? Is it my place to do that?

            Caleb Behn, moderator and co-panellist, explained that tension during his presentation. I understood that he was concerned that the trajectory of Indigenous law in Canada, as it relates to extractive industry, was being used and abused by environmentalists to accomplish what they could not, and that this was a colonization of legal principles, replicating a dynamic that many were trying to oppose. Caleb argued that we need to be building alternatives because we have, in a privileged country, an opportunity to build progressive approaches that look beyond the human-centred lens, and envision the rights of the environment in all kinds of ways.

            Conference participants responded to this in ways that revealed the importance of thinking through this tension as well as its practical implications. I believe that thinking through this tension will be ongoing as it is a challenging question with many layers.

            When asked to contribute my presentation to this issue of Contours, I felt it was an opportunity to make an initial response to this tension as Caleb described it. My presentation follows—much as I spoke it—and then in the Post-Conference section, I include some reflections. I hope the discussion can continue.

            Note: My presentation relies on two previously published works: Rachel Ariss and John Cutfeet, “Kitchenuhmaykoosib Inninuwug First Nation: Mining, Consultation, Reconciliation and Law” (2011) Indigenous Law Journal 10(1): 1–37, available at: http://ilj.law.utoronto.ca/volume-10-issue-1-2011; and Rachel Ariss with John Cutfeet, Keeping the Land: Kitchenuhmaykoosib Inninuwug, Reconciliation and Canadian Law. Fernwood Publishing, 2012, and a presentation: Rachel Ariss and David Peerla, “The Law in the Making and Unmaking of the Kitchenuhmaykoosib Inninuwug Struggle for the Right to Say No”, 2009, presented at Re-Thinking Extractive Industries, Conference, CRLAC and EIRG, York University. I have added footnotes to court decisions and recent articles. Court decisions can be found on canlli.org by searching their names.

Conference:

            Thank you Audrey for welcoming me onto Musqueam territory. I am honoured and humbled by the invitation to come and speak here among people who have made so many contributions. I am from a settler family. I work as a professor and my education is in law.

            Some of you have heard about the Kitchenuhmaykoosib Inninuwug (KI) and their struggle against Platinex, a mining exploration company that flared into a legal dispute in 2006. As I was living in Thunder Bay at the time, I was able to attend the KI and Platinex hearings, and meet several people involved in the struggle. Today, I will talk about the legal aspects of the KI-Platinex dispute, and the role of Canadian law in KI’s struggle for self-determination. I hope this story will help us to think about the ways in which Canadian law both supports and limits Indigenous land rights.

            While I speak as an ally to the community, I want to be clear that I do not speak for them. The story of KI’s struggle for self-determination is long and complex, it goes beyond Canadian law, and it is continuing. There are many aspects to this story other than the legal aspects.

            Kitchenuhmaykoosib Inninuwug is a small remote FN community on the shores of Big Trout Lake, 500 km northwest of Thunder Bay, which is on the north-western shore of Lake Superior. It is a fly-in community most of the time and there is a winter road over the ice for six to ten weeks of the year depending on how cold the winter is. Big Trout Lake is a headwater lake that flows north into Hudson’s Bay. KI’s traditional territory encompasses much of this watershed. Many people in the community continue to hunt, fish and gather, depending on the land to survive.

            It is important to recognize that three legal systems converge on KI’s land. The first, and most central, is KI’s own law, which arises out of the community’s relationship with the land. As KI community members explained in their affidavits before the court, the land itself, and the community’s relationship to the land, is sacred. ‘Keeping the land’, or, in Oji-Cree, Kanawayandan D’aaki, is the community’s fundamental motivation. John Cutfeet, spokesperson for the community during the legal dispute, explained to me that Kanawayandan D’aaki––to protect and to keep the land––is understood as a sacred duty, and fulfilling this duty is part of community responsibility and identity. This is a spiritual law and reflects the community’s very being. This spiritual and scared law involves respecting relationships with the land and animals; making decisions about the land from a perspective that is very aware of the delicate balance in the boreal forest; and being in the land in a way that will support their continued existence as a community engaged with, and an integral part of, their territory. For the people of KI, a full understanding of Kanawayandan D'aaki also arises from spending time on the land, and part of protecting and preserving the land requires one to be on it, to understand it and its connection with the people.3

            The second legal system is the Crown’s duty to consult and accommodate. This is a procedural duty, and a process meant to fulfill s. 35 of the Constitution, which recognizes and affirms Aboriginal and treaty rights.

            The duty to consult and accommodate is triggered by Crown knowledge of an Aboriginal right or claim that might be impacted by its activities.4 Consultation must reflect the honour of the Crown and it must be meaningful. The Supreme Court of Canada has made several statements explaining what makes consultation meaningful:

  • to be honourable, consultation has to take place BEFORE the Crown’s proposed activity;5
  • there has to be enough time and perhaps even financial support for the Aboriginal group affected to respond meaningfully;
  • consultation processes have to reflect the intention to substantially address Aboriginal concerns;6
  • a more recent legal development is that consultation is not limited to immediate impacts on Aboriginal and treaty rights, rather it applies to ‘overall projects’ and maybe to ‘strategic, higher level decisions’ where those are likely to impact rights;7
  • and the court has said that in most cases, the Crown will have to change its plans based on the concerns raised and knowledge gained through consultation—this is accommodation.8

Accommodation, which is the change in plans that acknowledges and continues the practice of Aboriginal and treaty rights, is inseparable from consultation as the duty turns on responsiveness. Without it, consultation is meaningless.

            There are, however, significant drawbacks to the duty to consult. The most limiting aspect of the duty to consult is that it does not recognize an Indigenous peoples’ veto over Crown activity on their lands, and while the Courts encourage negotiations actual agreement is not required.9 Another key concern is that the duty to consult mainly takes into consideration Crown objectives for land use and it does not support Indigenous aspirations or promote cooperation between Indigenous and Crown understanding of the land and its use but simply requires Indigenous groups to respond to Crown plans.10 This does not look like a new postcolonial relationship. Finally, the duty to consult provides the government with a mechanism to constitutionally justify encroachment. As it justifies government encroachment, the duty may whittle down Aboriginal groups’ access to land until nothing is left.11

            The duty to consult and accommodate, for all its weaknesses, however, is in sharp contrast to the mindset of extractivism, which is found in Ontario’s Mining Act, and represents the third legal system operating on KI’s land.

            The extractivist worldview manifests through law in the ‘free entry’ approach to mining. Ontario has a free entry system that opens up all Crown land, even land subject to aboriginal land claims, for staking and prospecting. In Ontario, at the time of the dispute between KI and Platinex, there was no mention of Aboriginal and treaty rights in the Mining Act. All a prospector has to do is stake and file a claim with the Ministry, and that prospector is free to work that land. This recording gives the company an exclusive right to perform early exploration activities in Ontario, and an eventual right, if a mine is developed, to earn profits from that mine.

            In January 2006, Platinex began early exploration activities on mining claims it held on KI’s traditional territory. Platinex was acting on its rights as set out under the then Mining Act, which made no mention of Aboriginal or treaty rights beyond prohibiting exploration on reserve lands. Platinex had communicated earlier with KI, and the community had decided it was not interested in mining. KI issued moratoria against mining in 2001 and again in early 2006. When community members discovered Platinex’s drilling camp, they acted on their own law, Kanawayandan D’aaki, requiring them to look after their land and on their understanding of Treaty 9 as a sharing document. Community members set up camp nearby and visited the exploration site.

            Platinex left, and sued the community for $10 billion in damages and an injunction to remove them from the exploration site. You can see here the confidence with which Platinex acted based on rights it was given through the free entry mining system, both in going onto territory where they knew they were not welcome and in pursuing such egregious damages. This engagement with the power of the formal legal system, in a punitive, bullying way, crystallized the conflict between the three legal systems converging on KI’s territory.

            At the first hearing into the dispute, the judge ordered a 5-month injunction against Platinex. Platinex had to stop any exploration activity until consultation had occurred. This decision was both a victory and a defeat.

            The injunction against Platinex was a real victory in that lower court judges had not been ordering injunctions against developers in similar situations. This injunction meant that the duty to consult and accommodate, and the requirement that it be done prior to any rights infringement, had to be taken seriously. Emphasizing the requirement to fulfill the duty prior to Crown action means that the land could be protected from potential harm while the legal issues were dealt with.

            The injunction decision was based on the finding that KI may suffer irreparable harm due to its loss of its connection to culturally and spiritually significant land, the court said: "it is critical to consider the nature of the potential loss from an aboriginal perspective…. 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.”12 This was an important opening to understanding of Indigenous land rights as KI’s attachment to the land was being recognized and protected in Canadian law.

            The judge found a public interest in encouraging the Crown to fulfill its duty to consult and accommodate Aboriginal Peoples. This was important because in most injunction cases, courts see economic interests as representing the public interest. The public is assumed to have an interest in jobs, open trade, and extraction of resources for profit.

            As well as a legal opening, the idea of the public interest is a point of broad cross-community mobilization: what is the public interest? How does the public interest connect with Indigenous interests, and vice versa? And how is it different from industry and governmental interests?

            Yet the injunction was also a defeat to the extent that the injunction was granted on the condition that KI, Ontario, and Platinex engage in consultation “…to allow Platinex to conduct its two-phase drilling project at Big Trout Lake…but not necessarily on land that may for part of KI’s TLE claim….”13 Here, you can see that the judge was unable to imagine that consultation would possibly provide information that could prevent the drilling from happening. While the judge appeared to understand much of what KI was expressing in court, this condition begins to close the opening found in his recognition of KI’s perspective, as it points consultation toward a specific end. This is precisely the risk of the duty to consult––that Crown visions for land use are seen as inherently sound, and simply require adjusting to make sure that Aboriginal rights are accommodated.

            In May 2007, the judge found that some ‘consultation’ had taken place and imposed an ‘agreement’ on KI to allow Platinex onto the land for specific drilling. This imposition closed the opening found in the earlier decision.  The issue was narrowed to the scope of the duty to consult, leaving out ideas of the public interest and KI’s own community consultation protocol. And, the judge lost his understanding of KI’s relationship to the land as something that could be recognized and protected in Canadian law. Although the judge continued to acknowledge KI’s perspective on their connection to the land, he was unable to connect this perspective to “a recognizable legal right requiring protection.”14

            The conflict escalated.

            The community decided that they were not going to allow Platinex onto their land, and stated this publicly. They gained support for their position from First Nations across Treaty 9 and north-western Ontario and some environmental and social justice groups, such as the Canadian Wildlands League, Mining Watch, and Eco-justice. This mobilization had been building since the filing of the lawsuit against KI. Platinex then asked the court to allow it to start drilling and order the community to do nothing to prevent it. KI stated that it could not afford to defend the motion, released its lawyer and left the court. The judge made the order as Platinex requested.

            In December 2007, Platinex brought KI to court again for contempt. KI had made several statements that it would not allow Platinex into their territory to drill. On this basis, the judge found Chief Donny Morris and 5 band councillors in contempt of court. KI did not contest this finding. Chief Donny Morris explained that he did not mean to disrespect the court, but that KI had to follow their own law as well as their understanding of what their rights were under Treaty 9.15 In March 2008, the judge sentenced Chief Morris and the rest of the KI 6 to jail for 6 months.

            The judge emphasized the rule of law as expressed in court orders, and public defiance, especially of court orders cannot go unpunished. The rule of law meant that the court had to uphold Canadian law. If there were two laws—one for aboriginals and one for non-aboriginals––the administration of justice would fall into disrepute, and there would be chaos. So, the KI6 had to be punished by incarceration.16

            The Thunder Bay courtroom, designed to hold about 125 people had standing room only on the day of sentencing. First Nations people made up the majority of those attending court that day. They heard the judge say that they misunderstood their treaty rights, and that they only had the right to be consulted. They watched their community leaders, ordinary people, being taken to jail. They saw clearly that there were already 2 systems of law: one permitting governments to ignore their treaty promises and constitutional duties, and one that jails Indigenous leaders for standing up for their rights. People were angry and weeping as they waited outside the courtroom for Chief Morris and the others to be taken to jail. This gained media and community attention, and really pushed social and political mobilization across Indigenous and non-Indigenous communities. Law was clearly delivering injustice that day. People, watching injustice in action, then stood up and made efforts to raise awareness, gain support for the KI 6 across Canada and internationally, and work for legal and political change to address the issues that had led to the jailings.

            At the time of the jailing, cross-community social mobilization bloomed. KI had built an alliance with Ardoch Algonquin, who were resisting a very similar encroachment by a junior mining company on their territory. The KI6 and Bob Lovelace became known as political prisoners and prisoners of conscience. This was no longer a private dispute over access to land. Platinex’s invocation of the blunt instrument of law revealed the carelessness of Platinex’s approach to exploration on KI’s territory, the reluctance of the Ontario government to fulfill its constitutional duties, and finally, the injustice of jailing protesters who held aboriginal and treaty rights.

            While Bob Lovelace and the KI 6 were in jail, activists from Grassy Narrows First Nation who were opposing logging on their lands planned a walk to Queen’s Park. Grassy Narrows, the Ardoch Algonquin, and KI decided to work together. The Indigenous groups directed the content and form of a rally ‘Gathering of Mother Earth Protectors,’ and activist and environmental justice groups provided logistics and support. This was an important experience of coalition building between progressive and Indigenous groups that kept Indigenous land rights at the centre through Indigenous leadership. The rally date fell close to the date of KI’s sentencing appeal to the Ontario Court of Appeal. The rally was well-attended and supported by a broad coalition of progressive groups ranging from local MP Howard Hampton, from trade unions to churches and environmental and other social justice groups.

            The next key legal event was the appeal of sentence, heard at Ontario’s Court of Appeal. The appeal was scheduled for a room that held about twenty people. Once they saw the line-up outside waiting to get in, they shifted to a room that held about fifty. There were still a lot of people outside who stayed there all day. Many of us know that Canadian law, especially around issues involving Indigenous people, is very rarely just. But there is still an important desire to see that law be just, to make that law more closely reflect a vision of a just relationship between Indigenous and non-Indigenous peoples in Canada. Being there, I think, sends the message that we want to see the law reflect justice, and to reflect it in a public way.

            The Court of Appeal ruling, significantly, released the jailed leadership stating that the sentences were too harsh. It explained that the concept of the rule of law was much more than simply following court orders. The Court commented that: “…the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to the breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights.”17 This is much more open ended than that offered by the sentencing decision. And it recognizes the importance of Aboriginal law and Aboriginal rights in understanding the actions of those who breached the injunctions as a systemic background factor that should have been taken into account in sentencing.

            The dispute between KI and Platinex leaves us with important lessons about the possibilities and limits of law in supporting Indigenous legal rights.

            Courts do make statements that recognize Indigenous law, that recognize an alternative, clearer vision of justice. These positive statements can be used both legally in future cases, as well as to support political mobilization towards respecting Indigenous rights. Justice Smith’s statement in the first hearing in the KI case that the land was the “heart and soul” of the community, and that “no award of damages could compensate for that loss” showed that Canadian law recognized the land as something other than an economic resource. This statement was mobilized in a way that supported the power of First Nations communities in northern Ontario to speak out, to continue their struggle. The release of the KI 6 and Bob Lovelace by the Court of Appeal, the court’s statements that their understanding of their rights was ‘reasonable,’ and that the sentences were ‘too harsh’ were important victories over Ontario’s approach in both disputes. In the Court of Appeal, the judge commented that Ontario’s Mining Act was a “remarkably sweeping law.” One week after this statement was released, the Ontario government announced amendments to the Mining Act to include some respect for Aboriginal rights.

            We also learn that legal change is not enough.

            Legal decisions, in Canada’s adversarial system, clarify who has power and who does not. In that way, law does act at the behest of capital. At the same time, legal decisions sometimes vindicate the powerless and protect those in need of protection. Sometimes, legal recognition of certain arguments can contribute to a long-term change, such as the recognition of aboriginal title in the Calder case in 1973, or the openness to an injunction in the first KI decision. Overall, however, the law tends to support the status quo; those that have power, for the most part, retain it in a court of law. This clarification can contribute to social action, to political action that may eventually lead to greater self-determination.

            It is important to remember that KI did not choose to go to court, but felt they had to defend themselves against a lawsuit that was meant to threaten community solidarity. The adversarial legal system is not often a chosen path for those working towards Indigenous self-determination. It takes a lot of monetary, community, and personal resources. What is important is that when the courts do get involved, conflicts become highly visible, and so do Indigenous peoples’ own laws and perspectives. The visibility and injustice of the legal aspects of the conflict can sometimes work in favour of Indigenous peoples when members of other communities begin to develop understanding and work to raise awareness.

            In this case, the application of the duty to consult and accommodate gave the community breathing space following the first hearing, and protected their land from harm for at least the duration of the injunction. Governments and proponents were told that consultation and accommodation must be taken seriously and that the provincial government should change the Mining Act to recognize this duty. These are significant changes.

            Ontario’s new Mining Act now requires consultation and accommodation before certain mining exploration activities, although not before claim staking. This is an improvement as it provides opportunities for Indigenous voices to be heard in the process of development on their lands. But I do not want to overstate this because it is not ‘the right to say no’ and it does not recognize Indigenous land rights as based in specific, ongoing relationships with land. It does not fulfill the promises made under Treaty 9. And it does not end free entry.

            Following the Court of Appeal decision, Platinex tried to access their mining claims once more. People from KI went out to Nemeguisabins Lake and circled in boats and canoes, preventing the floatplane from landing. Platinex then sued the Ontario government for damages, eventually settling for a $5 million payout and a guarantee of future royalties if a mine was ever built there. Finally, Ontario unilaterally withdrew the area of Platinex’s former claims from open staking. Although these lands are protected from claim staking for now, this can be changed at the whim of the Ontario government.

            In the end, it was the continued commitment and action of the community to defend their territory and insist on their exercise of jurisdiction that finally made their “no” to Platinex and to Ontario effective. As for the rest of us, maintaining social awareness of the continuing injustices against Indigenous people, in the name of resources extraction, and pressure for political change is necessary to make the slim openings provided by law worth the effort and sacrifice they cost.

Post-Conference:

            To what extent can the harmonies between Indigenous land relationships and Western environmental approaches be applied for the good of all? What are the benefits of such an alliance for Indigenous nations? Would strong legal environmental protection regimes (if achieved), which are often acceptable to Western environmentalists, reduce broad-based social support for Indigenous self-determination and culturally-specific goals of maintaining relationships with the land? Would they reduce public support for the legal and social goals of symbolic and practical respect for Aboriginal title and treaty rights? Or are such Canadian legal regimes able to work in tandem, respectfully and equally, with Indigenous legal traditions? Does the idea of ‘inclusion’ of Indigenous legal frameworks in Western legal frameworks reinforce and reify the problems of majoritarian colonialism, and how? How can Indigenous self-determination be respected and supported by environmentalists? These are some of the questions that I see arising from the legal aspects of the dispute between KI and Platinex, as well as Caleb’s questions about alternatives. These questions have arisen for many engaged with Indigenous law and have both theoretical and practical aspects.

            Law and cultural systems support each other. Law, formal and informal, provides ways of resolving disputes, expresses visions of ‘the good society,’ and condemns or corrects (explicitly and implicitly) wrongs. And culturally embedded perceptions that shapes law and its process are a reflection of socio-cultural norm or belief, usually that of the majority in any group. A commonality in many understandings of law is that law is something that creates some obligation and the community held together by or embracing that law understands that obligation as such, whether codified on paper or expressed in story, or in an amalgam of both.18 In mainstream Canada, law is viewed as a separate institution from other social institutions, idealized as objective and free of socio-cultural norms. This can be seen in legal language where the judge “finds” the law. Indigenous law, however, is not seen as a separate institution; rather, Indigenous law tends to be inherent and implicit in worldviews, values, languages, and teachings. Generally speaking, law is something that is more explicitly ‘lived’ as a path to or as part of ‘the good life’ in Indigenous worldviews than in mainstream Canada.19 If we acknowledge Canadian law as culturally embedded to some extent, and acknowledge that part of that culture is the extractivist worldview, in which ways and in what contexts do we focus our energy for change? When law is changed, do sociocultural beliefs and norms also change? When sociocultural beliefs and norms change, does law? How do we encourage these changes to work together for progressive good? Law is able to both provide justice and create injustice. Taking responsibility for shaping Canadian law in a way that supports justice and curbs the power of law to create injustice is a fundamental challenge. Yet I believe that, when applied specifically and contextually, and reflected upon, it may be one aspect of building true alliances.

            There can be positive changes specific to Canadian law. For example, the work done in Choc v HudBay Minerals20 (see presentation by Cory Wanless) opened the door to a change in perception that these extractive companies, could be liable, at least, for the more extreme and individualized harms that they do to make a profit for Canadian investors on Canadian stock exchanges. If held liable, perhaps they will avoid such activities. This seems appropriate. Such companies’ activities should fall within Canadian legal jurisdiction–– Choc’s claims for justice in this instance are recognizable in Canada’s legal system and the wrongs that people in her community have suffered are certainly seen as wrongs by much of the world. Will the awareness that is raised by these lawsuits help to change sociocultural norms around what actions are seen as reasonable within extractive companies, as well as by those outside of them? Can this liability to individuals be extended to liability for collective losses (of ways of life) and environmental harms, thus, hopefully, reducing corporations’ willingness to engage in such activities?

            Likewise, if Canada’s legal system is to have any integrity it cannot be used simply to silence research or dissent. There should be ways to prevent and shut down SLAPP suits while the courts remain open to non-frivolous but novel claims (refer to work by Alain Deneault). Regulating a legal system to ensure it comports with expressed legal norms, such as no abuse of process, also seems appropriate.21 Could this change corporate boards’ socio-cultural beliefs that encourage the use of law as a weapon rather than as a place to seek and reflect justice? Will Canadians support a law that protects those who research and argue against the powerful?

            The Platinex-KI dispute revealed a key conflict within Canadian law, in addition to the fundamental conflict with Kanawayandan D’aaki. Ontario’s Mining Act, in that it left no room for any consultation or accommodation, clashed with Aboriginal and treaty rights under s. 35 of Canada’s Constitution. While Ontario’s Mining Act has introduced some role for consultation and accommodation, it does not challenge free entry, which created the third party ‘rights’ over which Platinex sued KI. Free entry mining obviously tramples on Indigenous land rights, and creates social conflict by awarding rights in Indigenous territories to third parties. Most provinces, notably B.C. and Ontario, still have a free entry system, which means that ‘Crown’ land is open for staking mining claims, and that those claims, if made according to the rules and on a first-come basis, are recorded by the mining recorder, creating a right to minerals under that claim.22 While the Maritime provinces and Alberta include some discretionary powers over mining decisions, this does not necessarily mean that the decisions to stop certain mining activities will be taken.23

            Free entry mining is also an expression of a mindset that sees the highest and best use of land as for extraction. Free entry mining is the legal expression of a specific sociocultural belief: extractivism.

            Yet there are alternatives. The Mackenzie Valley Resource Management Act sets out land use planning in certain areas, which takes precedence over traditional free-entry mining, and includes an environmental review process and ‘conservation’ as an important objective of land management.24 Manitoba’s Mines and Minerals Act requires mining exploration to be done in a way that is consistent with principles of sustainable development, and its Planning Act may supersede mining development in some areas. These are only small steps but they may be in the right direction.

            As extractive technologies become more harmful both in what they can extract and how they do it (fracking, tar sands, and pipelines), sociocultural dissent over the value of extraction is growing—slowly. What we might all think about is what questions, other than the impact on Indigenous rights and treaty rights, can be asked about free entry mining. Is the creation of 3rd party rights (i.e. exploration rights) on ‘Crown’ land in the public interest? How do we understand the concept of ‘the public interest’? Are there legal norms about the creation of third party rights on Crown lands that have not been tested against free entry? Does free entry mining violate rights of the environment? What are the rights of the environment? Is the concept of ‘rights’ of the environment useful, and what other approaches can we imagine?  Making efforts to stop free entry by thinking through these alternative approaches might reflect settler responsibility for shaping Canadian law in a way that (at minimum) reduces its impact on Indigenous territories. This thinking through may be part of settler alliance work with Indigenous peoples. Such action may be one way to respect Indigenous peoples’ territories without colonizing their legal principles, while reflecting a growing recognition of the environment as something that is not simply a container of resources waiting to be extracted, but something through which and in which we are all connected.

Endnotes

Rachel Ariss and John Cutfeet, “Kitchenuhmaykoosib Inninuwug First Nation: Mining, Consultation, Reconciliation and Law” (2011) Indigenous Law Journal 10(1): 1 – 37, especially pp 5 – 11, available at: http://ilj.law.utoronto.ca/volume-10-issue-1-2011. Also see infra for a short description of Kanawayandan D’aaki.
Following the release of the KI6 from prison, the Ontario government announced the Far North Act, which would ‘protect’ 50% of the boreal forest while opening the rest to mining and other development. KI opposed this Act as, despite claiming a new relationship with Aboriginal peoples, it actually entrenches Ontario’s exercise of jurisdiction over KI’s territory, through land use planning. See John Cutfeet and David Peerla, “The Beautiful Lies and the Ugly Truths of Ontario’s Far North Act” presentation at Native American and Indigenous Studies Association annual meeting, June 2015, Washington, D.C. Note that some of the ENGOs who had supported KI’s struggle against Platinex, however, supported the Far North Act. In their view, the Act’s land use planning aspects provided increased opportunity for environmental protection through parks and restricting mining in certain areas.
See Rachel Ariss with John Cutfeet, Keeping the Land: Kitchenuhmaykoosib Inninuwug, Reconciliation and Canadian Law. Fernwood Publishing, 2012, especially pp 43 – 48.
Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511, para 186
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] 3 S.C.R.
Haida Nation, para 42.
See Dene Tha’ First Nation v Canada (Minister of the Environment) 2006 FC 1354 aff’d 2008 FCA 20 and Rio Tinto Alcon v Carrier Sekani Tribal Council 2010 SCC 43.
Taku River Tlingit First Nation, at 25.
Haida Nation, para 42.
10 Gordon Christie, (2005) “A Colonial Reading of Jurisprudence: Sparrow, Delgamuukw and Haida Nation” Windsor Yearbook of Access to Justice 23(1) 17-53 at 45.
11 Kaitlin Ritchie, (2013). “Issues Associated with the Implementation of the Duty to Consult and Accommodate Aboriginal Peoples: Threatening the Goals of Reconciliation and Meaningful Consultation”. UBC Law Rev. 46: 397-438.
12 Platinex v Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON S.C.), para 80.
13 Ibid, para 139.
14 Platinex v Kitchenuhmaykoosib Inninuwug First Nation, 2007 CanLII 16637 (ON.S.C.), para 113.
15 John Cutfeet did challenge the finding of contempt against him, because he felt that not contesting this finding was giving up his right to say no in Canadian courts.
16 Platinex v Kitchenuhmaykoosib Inninuwug First Nation, 2008 OJ No. 2014 ON.S.C.
17 Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534, para 58. Note that as the legal issues - appeal of a sentence of incarceration for contempt of court based on an understanding of Aboriginal rights – were very similar for both First Nations, the two appeals, that of KI and of the Ardoch Algonquin, were heard together under this name.
18 See Brian Z Tamanaha, “Law” in Stanley N. Katz ed., The Oxford International Encyclopedia of Legal History online: (2009) for a discussion of different conceptions of what law is, <http://www.oxfordlegalhistory.com/entry?entry=t277.e475>. Here, I rely on a perception of law as a complex, pluralistic engagement in social ordering that includes and goes beyond official state law.
19 James Youngblood Henderson, First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society (Saskatoon: Native Law Centre, University of Saskatchewan, 2006), 121. Also see Patricia Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence. Halifax: Fernwood Publishing, 1999.
20 Choc v HudBay Minerals, 2013 ONSC 1414.
21 Quebec’s Anti-SLAPP legislation was recently interpreted so as to narrow its application, see http://ocla.ca/quebec-court-of-appeal-rewrites-law-on-slapp-actions/.
22 Rasmey Hart and Dawn Hoogeveen, “Introduction to the Legal Framework for Mining in Canada” Mining Watch Canada, July 2012, p. 3. http://www.miningwatch.ca/publications/introduction-legal-framework-mining-canada.
23 Kate Campbell, Undermining Our Future: How Mining’s Privileged Access to Land Harms People and the Environment, West Coast Environmental Law, 2004, p. 16.
24 Ugo Lapointe, “Origins of Mining Regimes in Canada & the legacies of the Free Mining System” Presented at Rethinking Extractive Industries Conference, York University, March 2009, p. 7.