Local Journalism Initiative Reporter
Ten Treaty 9 First Nations in Ontario have delivered a message to the federal and provincial governments and industry: Without practicing co-jurisdiction there will be no more resource development in their traditional territories.
“We have a right to be at the helm with the Crown because you’re affecting our way of life, our way of being. I dare say, we are protecting our culture, so any development without our consent is cultural genocide and you need to recognize that,” said an impassioned Ramona Sutherland, chief of Constance Lake First Nation in an address to Canadians.
Sutherland was joined by chiefs and representatives from the other nations this morning to announce they were beginning legal action against Canada and Ontario and will challenge the version of Treaty 9 used by the Crown to make unilateral decisions that impact the way of life of First Nations.
The draft Statement of Claim outlines that Treaty 9 never included “the ceding, releasing, surrendering or yielding up of Jurisdiction, but rather sharing of Jurisdiction… resulting in co-Jurisdiction, the nature, structure and process of which are to be negotiated in accordance with Canada’s and Ontario’s duties to negotiate in good faith.”
The Statement of Claim says the oral agreement which “was and is” Treaty 9 says First Nations would maintain their way of life, including their jurisdiction. It was the written text of Treaty that altered the oral premise and that was not what First Nations leaders agreed to.
“There are other cases that certainly said the treaty isn’t interpreted the right way by the Crown, but this is the most sort of head on, frontal attack to unilateral Crown jurisdictions in Canada," said Kate Kempton, legal counsel with Woodward and Company.
Legal action has been launched only days after a joint announcement by Ontario Premier Doug Ford and Prime Minister Justin Trudeau of a Volkswagen electric vehicle battery factory slated for St. Thomas. Both levels of government have committed hundreds of millions of dollars to Volkswagen to help the German-based company select Ontario.
Last year the Belgium-based Umicore announced a $1.5 billion battery facility northwest of Kingston. That investment includes undisclosed dollars from both the province and Canada.
The operation of both facilities is dependent on the mining of critical minerals found in northeastern Ontario’s Ring of Fire, the territory that includes the plaintiff First Nations.
Kempton said legal action is a warning to mining development companies that they need to lobby both the provincial and federal governments to work with First Nations and “make co-jurisdiction happen.”
“Because until that happens there will be a huge amount of uncertainty for those companies. The implication is that they’re not going to be able to go ahead without full informed consent if it’s going to go ahead,” she said.
Mark Bell, Band Councillor with Aroland First Nation, stressed that his community wasn’t against development or industry. However, decisions have to be made with First Nations at the table saying whether continued development is good for their land.
“We are at a precipice. We have climate issues going on back home. We don’t know what the weather is doing anymore. We don’t know how to make decisions out on the land because of climate change. We’re looking at projects in our traditional lands that will only further that,” said Bell.
Chief Solomon Atlookan of Eabametoong First Nation expressed concern with Ontario’s Bill 71: Building More Mines Act, which proposes changes to closure plans, recovery permits, and statutory decision-making authorities. He said the bill will allow permits to be fast-tracked by Ontario.
“What does that do with our treaty? That we’re supposed to trust each other. We’re supposed to be partners…Ontario wants to move things without our consent and without our full consultation,” said Atlookan.
Kempton said it is their hope that Canada and Ontario will not “force” the nations to litigate.
The Statement of Claim includes a $95 billion settlement calculated, she said, based on a percentage of the gross revenue Ontario has earned from that land mass over 120 years.
Damages would likely be allocated by a formula which has not yet been determine, she added.
Treaty 9 accounts for about two-thirds of the province and represents almost 40 First Nations. Talks will be ongoing with the First Nations who are not part of the litigation and those who "agree with the theory and direction of the case," said Kempton. They would be welcomed to join.
“This isn’t really about money. The unfortunate thing about Canadian law is that it converts harm into money,” said Kempton.
The Statement of Claim also calls for interim, interlocutory and permanent injunctions on any development without consent from the nations.
“Even without injunctions, there’s no way that these nations are going to allow unilaterally imposed development in a reckless manner. They need to be part of, equal part of, the decision,” said Kempton.
“I don’t know what a court is going to decide, but I do know my clients and their resolve to stand on the land.”
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Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.