First Nation calls mining stakes 'unlawful, invalid' as it challenges Ontario's free-entry system
Chief warns of legal action if community's concerns aren't addressed by province, Ottawa
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, says it 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 Anishinaabek is 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 of its 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 said the 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?"
There are hundreds of mining claims staked out near Kiashke Zaaging Anishinaabek that are listed on Ontario's online claims map.
King said things 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 several critical minerals found in northwestern Ontario that are needed to fuel North America's growing EV industry.
Several First Nations in the area have been clear they won't allow mining in the region without their consent and have restated that position several times this year.
- In March, leaders from five First Nations walked out of Queen's Park in March, in protest of mining proposals.
- In April, chiefs from 10 Treaty 9 communities announced a lawsuit to fundamentally change the way resource and land management decisions are made in the region.
- In July, leaders with the First Nations Land Defence Alliance rallied at Queen's Park again to call for a halt to mining exploration and to speak out against Ontario's free-entry system.
"This is not only a Gull Bay issue — it'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 had not 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 claim moved into a 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 online without 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."
He said the problem is 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 not know 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 2009 and the Aggregate Resources and Mining Modernization Act of 2017. These two pieces of legislation are what facilitated the current free-entry system, making it easier, and more lucrative, for prospectors to stake claims as Ontario shifts to green 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."
The surge of claims isn't surprising, given the ease of staking them online, he said. While this may be alarming, particularly for First Nations, he pointed out that most claims won't yield actual mining 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's Mining 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 Ezeudu said once 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 King said they 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," he said. "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."
ABOUT THE AUTHOR
