First Nation wants gold exploration permit quashed in case that could have impact on Ring of Fire
Mining company pushed to end consultation after Barrick Gold came knocking
No one kept a record of what was said during the meeting between mining company Landore Resources Canada and the Ontario ministry in January 2016, but at stake was a potential deal with Barrick Gold, the largest gold mining firm in the world.
Landore, a subsidiary of Landore Resources Ltd., based in the Guernsey Islands, U.K., was eyeing potential gold deposits in an area with two lakes about 40 kilometres from Eabametoong First Nation where several families had camps, traplines and burial sites. Eabametoong First Nation is about 350 km northeast of Thunder Bay, Ont.
The mining company requested the "urgent meeting" with the Ministry of Northern Development and Mines because it wanted to wrap up consultations and obtain a permit to explore for gold, according to court records.
A little more than two months after the Jan. 19, 2016, meeting, which Eabametoong didn't find out about until it began legal action, the ministry awarded the permit to Landore.
Eabametoong is headed to Ontario court in Toronto next month seeking a judicial review to quash the permit, arguing the province failed in its duty to consult.
The case could have a wider impact on the province's plan for the mineral-rich Ring of Fire in the province's James Bay lowlands about 575 km north of Thunder Bay.
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While the case in question falls outside the Ring of Fire, Eabametoong is one of nine First Nations that signed a regional framework agreement with the province on the proposed development.
Weakness in Ontario's consultation process
Eabametoong's case alleges weaknesses with the province's consultation process — which places much of the leg-work onus on project proponents — that include an apparent lack of transparency, sporadic record-keeping, a reliance on paper communication, and limited flexibility in dealing with the unique circumstances of each community.
"If you dump paper on the First Nation, is that consultation?" said Krista Robertson, a Victoria-based lawyer with JFK Law.
"I certainly think this case shows that the delegation of consultation to mining companies did not work for the First Nation."
Jeff Cowan, a Toronto lawyer with Weirfoulds LLP who is representing Landore, said he could not provide comment on the case because it's before the courts.
The office of Ontario's Minister of Northern Development and Mines issued a statement saying it also couldn't comment because the matter was before the courts. The statement said that through changes to the Mining Act "the government has made significant strides in meaningfully engaging Indigenous communities across the province."
Only 2 meetings
Landore's dealings with the First Nation date back to 2003, and it initially hired community members to watch over one of its camps. It met only twice with the First Nation after it filed for the exploration permit in 2013 for the Minimiska and Keezhik Lakes area.
Company officials met once in Thunder Bay with the band council in Dec. 5, 2013, which the First Nation took to be merely an information session.
Landore, in a letter to the ministry, interpreted the meeting as part of its consultation, saying the First Nation "did not raise any concerns" during the meeting and that it had "fulfilled all obligations, including consultation, in regards to the permit application."
Company officials travelled to the First Nation in July 7, 2014, where they were met with a multitude of concerns from community members worried about the exploration. The company did not keep notes of the meeting, according to the First Nations court file.
The area proposed for exploration is heavily used by seven families from two of the community's 12 clans, according to an affidavit from Andy Yesno, a senior advisor to the First Nation's chief and council. Yesno said the area is used for snaring rabbits, trapping beaver and mink, hunting geese and moose and fishing for pickerel and other fish essential to the diet of a people facing deep poverty.
"Hearing drilling and helicopters would be a major disturbance to people's use, quiet enjoyment and traditional knowledge of the land," stated Yesno.
A community still 'fragile'
The land is essential to the future of Eabametoong, which declared a state of emergency in 2010 as a result of a crisis triggered by prescription drug addiction, stated Chief Elizabeth Atlookan, in an affidavit.
"Our community health remains fragile and at risk," stated Atlookan.
Between 2013 and 2015, the community suffered through 100 deaths due to suicides, homicides and sudden deaths, stated Atlookan.
Atlookan said the political structure of the community places the authority over territories in the hands of the clans, not the chief and council, meaning decisions need their input which requires face-to-face meetings.
"We did our best to engage with [Landore] and put precious time and money into participating in the process of engagement," said Atlookan.
Landore said in its filings it met its consultation obligations but ran out of patience, which was the reason behind its request for the Jan. 19, 2016, meeting with the ministry. The company said it offered to move its operations into the community.
"By this time Landore was desirous of a decision on the exploration permit. It had a limited window of opportunity for drilling in late winter. It had waited patiently for over two years and it had an obligation to shareholders to advance its project," said the company, in its filing.
As for the overture from Barrick Gold, "nothing developed from this inquiry."
Landore has a separate exploration project 130 km to the southwest in the territory of two other First Nations.