Neskantaga First Nation taking Ontario to court over 'inadequate' consultation on Ring of Fire

Neskantaga First Nation is taking Ontario to court looking for "ground rules" on how the province should consult and accommodate Indigenous communities that are in a state of crisis.

The remote Oji-Cree First Nation, located about 430 kilometres north of Thunder Bay, has been under a boil-water advisory for 26 years and a state of emergency since 2013, when seven people died by suicide in less than a year. Those issues have been compounded by the pandemic, leaving Neskantaga ill-equipped to engage in what the province has presented as consultation on a project to build a road through its territory to the mineral-rich Ring of Fire, community leaders say.

The lawsuit, filed with the Ontario Superior Court of Justice on Nov. 23, says the First Nation is looking for clarity after its "recent experience of inadequate consultations on a component of a larger road project that will run through [the First Nation's] homelands," and that the province's Environmental Assessment Act "is completely silent" on how to consult Indigenous communities in crisis.

"They're not asking us. They're trying to force us to change our way of life forever," said former Chief Chris Moonias. "If we're not going to be able to decide, then [the government] will be facing opposition."

The current proposal is to build 450 kilometres of all-season roadway through the boreal forest and swampy peat lands of northern Ontario, which would connect several fly-in First Nations, including Neskantaga, and provide access to the Ring of Fire — a remote area in the James Bay Lowlands about 70 kilometres north of Neskantaga. 

The legal move comes as action heats up in the region, with a bidding war taking place for most of the mineral claims in the area and Ontario Premier Doug Ford speaking with renewed energy about government plans for the mining project.

Moonias, who was chief for most of the COVID-19 pandemic and still works for Neskantaga, told CBC News that the roughly 300 members living on-reserve in Neskantaga have been unable to meet in person since the pandemic began to discuss any potential development in the Ring of Fire. 

But that hasn't stopped the government from holding its consultation period and approving the terms of reference, which lay out the rules around how the environmental assessments will move forward on the proposed Ring of Fire roads that will cross Neskantaga's traditional territory, he said. 

Neskantaga priority is health of community members

Since the pandemic began 21 months ago, Moonias said the priority of the First Nation has been to protect the health and well-being of community members. That has prevented Neskantaga community members from following their own traditional consultation protocols, which include in-person conversations between community members, who come to decisions together, Moonias said.

"We've always had this protocol, as long as I can remember and before our time, too," Moonias said.

In addition to the pandemic, Neskantaga has been under a state of emergency since 2013 because of a suicide crisis. The First Nation has high rates of prescription drug addiction and a housing shortage of about 100 homes, Moonias said.

Neskantaga has also been under a boil-water advisory for 26 years, and last winter community members were forced to leave the reserve for two months because of tainted water.

"I don't think we had any capacity to engage in this during the crisis," Moonias said.

Environmental assessments move forward

The Ontario government has split the road into three separate projects — the Marten Falls Community Access Road, the Northern Road Link and the Webequie Supply Road — all subject to environmental assessments to address potential environmental effects before infrastructure projects begin.

That increases the burden of consultation on First Nations, because it involves three individual assessments, said Dayna Scott, an associate professor and research chair in environmental law and justice at York University in Toronto. 

Ontario's Ministry of the Environment, Conservation and Parks approved the terms of reference for environmental assessments on the Marten Falls Community Access Road and the Webequie Supply Road in October.

That happened despite several Treaty 9 First Nations repeatedly requesting a pause in development activities in the Ring of Fire throughout the pandemic, culminating in the declaration of a moratorium by three First Nations on all development in the area.

Scott said she wants to see the court acknowledge both the on-the-ground circumstances of Indigenous communities and the importance of including Indigenous laws and decision-making protocols within the constitutional duty to consult and accommodate. 

She added she wants the court to answer the question, "Can [the Ontario government] basically just plow forward despite the pandemic?"

'Operating in the blind'

The province did extend a few deadlines for consultation, Neskantaga's lawyer Julian Falconer said, but that doesn't constitute meaningful consultation.

"They have no tools in the toolbox for dealing with Indigenous communities in crisis," he told CBC News

"The current situation is untenable. There is simply no guidance, no rules in place when it comes to consultations from an Indigenous perspective.… So, we're operating in the blind here."

The intent of this legal action, Falconer said, is to request the court "create ground rules" that could clarify the obligations of the provincial government in consulting Indigenous communities in a meaningful way that advances reconciliation. 

An emailed statement from the Ministry of the Environment, Conservation and Parks said the government is "committed to satisfying this obligation" to consult Indigenous communities when it considers or makes decisions that could impact asserted or established Indigenous or treaty rights.

The statement added the ministry could not comment on the matter further as it is before the courts.

A date to hear the court case has not yet been set.