Ontario makes big promises with critical minerals plans but First Nations advocates remain concerned

Lawyers and advocates for First Nations in northern Ontario say they're concerned the Ford government wants to press ahead with mining development in the Ring of Fire without properly involving First Nations or addressing their environmental concerns. 

The government released its new critical minerals strategy Thursday at the Lac Des Iles mine, about 125 kilometres north of Thunder Bay, Ont., aimed at positioning Ontario as a provider of raw materials for items such as smart phones and electric vehicle batteries. 

"Global businesses are searching for the materials, expertise and human power needed to build technologies of the future. And I'm here to say once again, look no further," Premier Doug Ford told reporters at the election-style announcement. 

"This strategy details how we will strengthen our supply chains, how we will attract new investments to our province, and how we will ensure that the economic benefits are fairly shared with our Indigenous partners."

The document calls Ring of Fire development a "transformative opportunity for unlocking multi-generational development of critical minerals" and names building partnerships with Indigenous communities as one of the six pillars of its strategy. 

In particular, it touts economic opportunities for participating First Nations and highlights the Resource Revenue Sharing agreements the province has signed with tribal councils and governance bodies such as Grand Council Treaty No. 3 – which it says have transferred more than $93 million from mining tax revenues and royalties and forestry stumpage revenues to their signatories.

Lawyer and former Couchiching First Nation chief Sara Mainville said her firm, Olthuis Kleer Townshend (OKT), has worked on Resource Revenue Sharing agreements, and she believes the province has done good work with First Nations in places like Timmins, Ont. 

But she said, First Nations in northern Ontario have concerns about the environmental impact of Ring of Fire development, and she's concerned that the province may not pay attention to those voices of warning.

"There's a particular line in the strategy that says the government is supporting the priorities of individual First Nations, which see potential Ring of Fire developments as opportunities for prosperity," Mainville said.

"So basically, they're going to just work with the First Nations that have positive views of this development. And so are they going to ignore the First Nations that are concerned and cautious in their approach?"

The province, as a treaty partner, should be helping to facilitate dispute resolution between First Nations with different points of view on development, Mainville said.

If it fails to properly engage communities, it risks legal action that could force it into additional consultation, and "that's just the type of uncertainty that industry hates," she added.

Dayna Scott, a professor at Osgoode Hall Law School and the director of the Osgoode Environmental Justice and Sustainability Clinic – which provides research support to Neskantaga First Nation – said she too has concerns about the language of the strategy, calling it a "change in tune." 

"Up 'til now, I've been hearing [the province] say things like, 'Ontario is doing nothing up there without the vast majority of First Nations on board.' And today, it looks a little bit more like an admission that, in fact, Ontario is proceeding in the face of widespread concern on the basis of the agreements they have with just the two First Nation proponents," said Dayna Scott, referring to the First Nations behind two proposed roads leading toward the Ring of Fire.

If the province really cares about the long-term economic benefits of mining the minerals in the Ring of Fire, it should invest the time to get all affected First Nations on board, she said.

The province's critical minerals strategy touts its $4.7 million Aboriginal Participation Fund (APF) to help communities participate in consultation processes with the Crown. 

But a lawyer representing Attawapiskat First Nation, which, along with Neskantaga and Fort Albany, has declared a moratorium on Ring of Fire development until a number of conditions are met – including a regional impact assessment that is First Nations-led – said that funding is based on a process in which the Crown ultimately makes unilateral decisions affecting First Nations.

That's a power that her clients assert the Crown does not legally possess, Kate Kempton said.  

"Particularly in a place in the world where the only people who've ever lived there and de facto have ever governed and had management of the lands there are First Nations, it is insulting, paternalistic and rather ridiculous to purport that the Crown ... knows better than the people who have always managed and intimately live with the land," she said. 

Kempton acknowledged that mining certain minerals could be instrumental in creating a greener future.  

But she said it would be a "pyrrhic victory" if damage to the peatlands in the Hudson Bay lowlands caused by mining those minerals led to catastrophic climate change.

The lowlands are one of the largest peatland complexes in the world, storing large amounts of carbon.

"What we don't know, what Ford doesn't know and I don't know today is the extent to which massive scale or any mining up there will destroy the peatlands," Kempton said, adding that First Nations need to be full collaborators in an investigation to find the answers to those questions.