Dayna Scott is York University Research Chair in Environmental Law & Justice in the Green Economy and associate professor at Osgoode Hall Law School and the Faculty of Environmental Studies.
Late last month, Ontario’s Progressive Conservative government confirmed that it plans to repeal the Far North Act, seeking to reduce “red tape” and increase “business certainty” in the Ring of Fire – a mineral deposit located near James Bay. While Premier Doug Ford is not the first to think he has found a key to unlocking the resource potential of Ontario’s north, this strategy is sure to backfire.
Ontario’s far north is inhabited almost exclusively by Indigenous peoples with ancestral homelands in the area covered by Treaty 9. It is a vast landscape of swampy boreal forest, a gigantic carbon sink that is also home to rare creatures such as the woodland caribou and the wolverine. Except for the De Beers diamond mine near Attawapiskat, there has been almost no industrial scale development in the whole region, which is why mining the hyped-up nickel and chromite deposits in the Ring of Fire region will require major new roads and other infrastructure.
When the Liberals first introduced the Far North Act in 2010, they did so over the objections of the Nishnawbe Aski Nation (NAN). The plan was to “protect” 50 per cent of the boreal wilderness, while “partnering” with First Nations in decision-making and revenue-sharing so as to facilitate mining. But while celebrated as an ecological victory, the scheme was actually designed to manage the increasing volume and credibility of claims to Indigenous governance authority in the region. Ontario, in the years prior to the act’s passage, had been forced to pay off mining companies to settle litigation alleging that Ontario was failing to facilitate access to companies’ mineral assets in the face of Indigenous resistance.
With the Far North Act, then, Ontario was trying to maintain the facade that it alone has the jurisdiction to make land-use decisions in Treaty 9 territory. Under the scheme that Mr. Ford now wants to scrap, remote First Nations are given funding to create community-based land-use plans that map out in detail the historical and contemporary uses of various parts of their territories. Communities can identify areas of significant value such as burial sites, fishing areas or traplines, and may designate areas as open for – or closed to – mineral exploration. But, in the end, the Minister decides whether to approve the plan; final authority remains with the province to make a decision in the “best interests of all Ontarians.”
NAN rightly objected: The Act doesn’t recognize the inherent jurisdiction of Indigenous peoples. To actually clear the roadblocks to the Ring of Fire – assuming that is what communities in the far north want – the province needs to sit down and work out the details of a renewed treaty relationship. In fact, an Ontario judge in the case of Restoule versus Canada, when reinterpreting the “augmentation clause” contained in the Robinson treaties, recently found that the Crown did not have the sole discretion to decide how to share the wealth of the land, and mandated negotiations between the parties to fill the gaps of the bare treaty text.
Ontario was engaged in a promising set of exploratory talks with communities in the Ring of Fire over the past several years, but those talks went south late in the former Ontario premier’s tenure when the province shifted from a consensus-seeking approach to working only with communities deemed “mining-ready.” A leader of one of the remote Ring of Fire communities, Chief Elizabeth Atlookan, called it a “quick and dirty approach to opening up the whole north” and questioned why, for such “high stakes” decisions, a more comprehensive approach could not be adopted.
Indigenous peoples should be able to exercise their inherent jurisdiction to make planning, permitting and approval decisions on their territories themselves, based on the authority that comes from knowing the land. A broad, regional and strategic lens to the Ring of Fire, then, is the very least that is required: an Indigenous-led strategic planning process should be oriented toward generating lasting benefits for the communities and having an overall positive impact on sustainability. The Treaty 9 communities must be both drivers and beneficiaries of any process that will shape their lands, waters and economies for decades to come. In fact, what Mr. Ford will soon find out is that, in the decade since the Far North Act was conceived, Indigenous legal orders across the country have experienced a remarkable resurgence. In the void left by the repeal of the Far North Act, there is a thriving Indigenous legal order. As Donny Morris, chief of Kitchenuhmaykoosib Inninuwug First Nation, wrote recently to Mr. Ford: “Repeal your laws [if you like], but respect our laws”.