Grassy Narrows First Nation taking Ontario to court over Mining Act, lack of consultation on land claims

A First Nation in northwestern Ontario is taking the province to court over its Mining Act, arguing the free-entry system violates its constitutional rights.

Asubpeeschoseewagong Anishinabek, known as Grassy Narrows First Nation, has issued a notice of application in the Superior Court of Justice.

The legal action says the province's Mining Act does not require prospectors to consult with First Nations before staking claims on their traditional lands. It argues this breaches the First Nation's treaty rights under Sec. 35 of the Constitution and goes against the United Nations Declaration on the Rights of Indigenous Peoples.

According to the notice of application obtained by CBC News, there are about 10,000 mining claims in Grassy Narrows's interim area of interest for mining, which covers more than 2,850 square kilometres — more than four times the size of Toronto.

British Columbia saw a similar case in the fall, when the Supreme Court ruled the province's mining permit system was not in compliance with the government's duty to consult Indigenous groups.

Represented by Toronto-based law firm Cavalluzzo LLP, Grassy Narrows held a news conference about its legal action on Friday morning at Queen's Park in Toronto. 

"We will protect our land and we just want to reiterate that any activity that's in Grassy Narrows territory, we should be consulted, we should sit down together, and we should be informed about the activities that are about to take place and that will take place if anything should go forward," said Grassy Narrows Chief Rudy Turtle. 

"These practices have to change. It's damaging our land. We want our land to remain intact because of our cultural practices, our way of life."

Other lawsuits filed

Grassy Narrows is a leading member of the First Nations Land Defence Alliance. The alliance has held protests outside Queen's Park, advocating for Ontario to respect their rights to free, prior and informed consent when it comes to development in their territories, including a proposed nuclear waste storage site near Ignace.

WATCH | Thousands protest mining exploration on Indigenous land in Ontario

Thousands protest mining exploration on Indigenous land in Ontario

1 year ago

Duration 2:01

Thousands of Indigenous people people gathered at the Ontario Legislature to demand a face-to-face meeting with Premier Doug Ford. They say the province has allowed thousands of mining applications without their knowledge or consent.

Earlier this week, Grassy Narrows appealed to the Inter-American Commission on Human Rights (IACHR) to call for justice after decades of mercury poisoning, dating back to the 1960s and '70s — when the Dryden Paper Mill dumped an estimated nine tonnes of mercury into the English-Wabigoon river system.

The First Nation also filed a lawsuit last month against the Ontario and federal governments, arguing they have violated their duties under Treaty 3 by failing to protect against or remedy the effects of mercury contamination.

In April, chiefs from 10 Treaty 9 communities announced a lawsuit against the Ontario and federal governments that aims to fundamentally change the way resource and land management decisions are made in the region.

Grassy Narrows has had a long history of land defence efforts:

• In 2007, the First Nation declared a moratorium on industrial activity in its territory until the Crown obtained its consent.
• In 2015, Grassy Narrows people voted against industrial logging in its territory during a community referendum.
• In 2018, Grassy Narrows enacted a land declaration, which bans mining, staking and exploration activities without consent.
• In 2022, the First Nation marked 20 years of its blockade to prevent clear-cut logging and mining from happening in its traditional territories.

Area First Nations fight 'barrage' of claims

Under Ontario's free-entry system, prospectors are allowed to register claims online for a small fee, without having to travel on the land and physically make a claim.

The convenience of staking claims online has made it difficult for many First Nations to keep up with what Cat Lake First Nation's chief calls a "barrage" of mining claims.

CBC News reached out to Greg Rickford, who is both Ontario's minister of Indigenous affairs and First Nations economic reconciliation, and minister of northern development, for comment. This story will be updated once a response is received.

Grassy Narrows is one of many First Nations in the region speaking out against exploration activities:

• In April, the Ojibways of Onigaming issued a statement objecting to a proposed permit for the exploration of an aggregate pit located off Highway 71.
• In March, Cat Lake First Nation filed a court injunction to pause a gold-mining company's construction of a temporary winter road leading to an exploration camp for a proposed open-pit mine.
• Last August, Kiashke Zaaging Anishinaabek (KZA), also known as Gull Bay First Nation, issued a public notice to warn mining prospectors away from its traditional territory.

Grassy Narrows's court application is requesting an order that prevents Ontario from issuing any further mining claims in or around its land.

It also seeks declarations from the province that a number of sections in the Mining Act are contrary to the Constitution's Sec. 35, and that Ontario "has a duty to consult, accommodate and obtain free, prior, and informed consent from Asubpeeschoseewagong Anishinabek."

Beyond preventing future claims, the First Nation wants the province to rescind existing claims and establish a timeframe to consult, accommodate and obtain consent from Grassy Narrows "to resolve such claims and interests."