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Court cancels mining permit after Ontario failed to adequately consult First Nation community

A permit for mineral exploration on the traditional territory of a remote First Nation has been cancelled by judges who say the Ontario government and the mining company failed to adequately consult with Indigenous people who hunt and fish in the area.

The decision issued this week by a three-judge panel of the Divisional Court of Ontario’s Superior Court of Justice reinforces the obligation of governments to reach out to First Nations, Inuit and Métis when development could affect their way of life.

The court said Landore Resources Canada will have to complete consultations with the Eabametoong First Nation before a permit can be issued for the company’s claim near Keezhik Lake in Northwestern Ontario.

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The judges agreed that the duty to consult was “at the lower end of the spectrum” in this case, both because the land had been surrendered to the Crown in a treaty in 1905, and because the permit was for simple exploration. But they pointed to Supreme Court decisions that say the Crown must consult in a meaningful way whenever Indigenous interests are at stake.

In issuing a permit for exploration, the Ontario Ministry of Northern Development and Mines should have engaged in conduct that promotes reconciliation with Indigenous people “as opposed to misunderstanding and betrayal,” the court wrote.

Krista Robertson, the lawyer for the Eabametoong First Nation, said the ruling means that, even when development is at an early stage, consultation must be carried out at a high standard with transparency and honour.

“Disingenuous consultation is epidemic across Canada,” Ms. Robertson said. “First Nations constantly feel betrayed by it. I think many Nations will feel vindicated by this decision and I hope it brings change.”

Elizabeth Atlookan, the Chief of Eabametoong, said the decision “goes a long way in making sure that both levels of government, as well as the companies that wish to come and do exploration or any other work going forward, follow proper procedures."

Landore staked the property between 2000 and 2003 and conducted drilling campaigns in the early part of that decade. Although the Eabametoong reserve is 42 kilometres away, the land is still used by Eabametoong families who maintain cabins, trap lines and fishing sites around the lake.

When the rights to the site were first acquired by Landore, a permit was not required for mineral exploration. But that changed in 2012, when permits and consultation became mandatory.

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Landore advised the First Nation in 2013 that it intended to drill more exploratory holes. The chief at the time responded by saying Eabametoong wanted Landore officials to meet with the people who use the area, and to sign a memorandum of understanding outlining the company’s intentions. Landore agreed to do both.

Company officials met with the chief and council in December, 2013. Then in July, 2014, they held a community meeting with land users that turned acrimonious. Landore committed to a follow-up meeting but that did not happen despite efforts by the First Nation to arrange it.

The company did have a private meeting with ministry officials in January, 2016, and wrote to the ministry a month later saying it had an “urgent need” for the permit.

The ministry wrote to the First Nation saying the decision on the permit would be made on Feb. 16, 2016, and Eabametoong’s outstanding concerns would be taken into consideration.

Eabametoong’s lawyer replied that Landore had terminated consultations and the promised memorandum of understanding had never been completed.

But the ministry granted the permit on March 31, 2016.

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“There was no real and genuine attempt by the ministry or Landore to listen to Eabametoong’s concerns, provide feedback about those concerns and to discuss ways to meet those concerns,” the court said.

Ken Coates, a Munk Senior Fellow with the Macdonald-Laurier Institute who is an expert in Indigenous rights, said the Supreme Court confirmed that consultations must take place fairly, openly and transparently but left it up to future courts to clarify what meets that standard.

“This is part of the work in progress that shows up for every single right that is defined by the courts,” Mr. Coates said. “Even when you get a victory that says you have a duty to consult and accommodate, unless you have a handbook that comes with it, these kinds of court decisions are going to be inevitable.”

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