Legal experts call for halt to 'mining as usual' during pandemic

A number of legal experts are calling on the provincial government to press pause on mineral staking and permitting processes on Indigenous territory in light of the COVID-19 pandemic. 

In a letter addressed to Greg Rickford, the province's minister of energy, northern development and mines, nine faculty members at York University's Osgoode Hall Law School state that continued exploration is putting an undue burden on remote northern communities, and making it too difficult for meaningful consultation to take place. 

"We didn't think it's lawful the way they're proceeding with mining as usual in the context of a global pandemic," said Dayna Scott, an associate professor at the school and in the faculty of urban and environmental change at York, and the primary author of the letter. 

"And that's in particular because many of the remote Indigenous communities that we work with in Ontario are expressing extreme difficulty in managing the sort of day-to-day work that needs to be done in governing their communities in the context of the pandemic."

"And that means that people are necessarily taken away from the kind of work they often already are compromised in doing in terms of responding to all of the Crown's requests for consultation on mining permits."

In order for Indigenous communities to properly discuss and deliberate such matters, in-person meetings and discussion with Elders are crucial, she stated, noting that the pandemic is limiting the ability of communities to do that, while ensuring the safety of vulnerable community members.

The increased use of virtual communications methods during the pandemic also pose a problem, she said, noting that limited bandwidth can make teleconferencing and videoconferencing difficult in remote areas. 

The letter notes that leadership in remote communities, many of which are already struggling to deal with ongoing issues such as inadequate housing and lack of clean water, are simply being stretched too thin by the added demands posed by the pandemic. It also points to the vulnerability of such communities to potential outbreaks. 

The authors, all legal experts with interests related to such things as Aboriginal law, natural resources and Crown-Indigenous relations, note that their concerns reflect those raised by a number of Indigenous organizations and communities.

The chief of Neskantaga First Nation, in northern Ontario, has previously requested the province press pause on mining exploration permits, citing concerns that his community does not have the resources to deal with permitting issues, while also dealing with the pandemic. 

• Northern Ontario First Nations want pause to mining permits until COVID-19 subsides

Although the province has declared mining an essential service during the COVID-19 pandemic, Scott stated that she doesn't see the reason for permitting to continue. 

"I don't think there's anything really urgent about the staking exploration and permitting work that's going on right now," she said.

"No one has yet explained to me why that's urgent, in this moment, that it continue."

On Monday, Scott said the government had not responded to the letter, dated June 3, but said that she would welcome an opportunity to discuss what might be done to ease the burden on communities.

In a written statement to CBC News, a spokesperson for the Ministry of Energy, Northern Development and Mines said the government acknowledges "the additional stress" placed on Indigenous communities in shoring up defences against the COVID-19 outbreak, and that regular communication is taking place to understand the challenges. 

The government is also "exploring means by which consultation can occur meaningfully and safely with communities without face-to-face meetings."

"We are dealing with decisions on a case-by-case basis, have temporarily paused some permitting decisions where appropriate, and will continue to reassess the evolving situation," the statement continued. 

Scott said she has questions about the government's case-by-case approach, and concerns about putting the onus on communities to ask for processes to be paused.