No Means No: The Kitchenuhmaykoosib Inninuwug and the Fight for Indigenous Resource Sovereignty – by David Peerla

David Peerla is KI’s political advisor and former MiningWatch board member.

In 2006, the remote Ontario First Nation of Kitchenuhmaykoosib Inninuwug (KI) said no to a mining company, was sued for $10 billion, had its leaders found in contempt of court and jailed but eventually prevailed when, three years later, the Ontario government paid the company $5 million to go away. This is how it happened.

KI, a remote First Nation community of 1200 or more people, is located on the shores of Big Trout Lake, on the margins of the Hudson Bay lowlands, in one of the largest remaining roadless areas in North America. Far from being simply a “wilderness,” the lands that the KI depend upon for their cultural and spiritual survival, their sacred and spiritual sites, were being staked and drilled in an extensive Canadian mining boom fueled by recent finds of diamonds and record high prices for gold, platinum, uranium, base metals and nickel (Strauss 2006). The boom threatened to “enclose” a commons that KI have occupied since time out of memory, and it triggered one of a global series of circulating struggles between the state, resource capital and Indigenous peoples in Canada and the global south.

The immediate context for these struggles in Ontario was the free entry regime, a legislative framework where so-called Crown lands are open for mineral exploration entry, unless they are specifically withdrawn. Free entry is a neo-liberal fantasy. There was no legislative requirement under the Mining Act that government consult First Nations or other land users, prior to opening lands for mineral exploration.

There was no prior planning to establish which tracts of Crown land are culturally sensitive, or serve as critical habitat for endangered species, or are valued ecosystem components. In the words of lawyer Kate Kempton, “The problem is this is called a free entry system and it allows anybody and their dog basically to go out there and stake a claim to the land, which is often traditional territory of First Nations, without any consideration at all of their rights” (Kempton 2007).

“Consultation” had become the new watchword in government-Aboriginal relations after a trilogy of decisions at the Supreme Court: the Haida Nation and Taku River Tlingit decisions in 2004, and the Mikisew Cree decision in 2005. The Supreme Court outlined a new consultation duty, based that duty on the honour of the Crown, and said that the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal or Treaty right or interest, and contemplates conduct that might adversely affect it.

The duty required consultation with the affected Aboriginal people that went beyond simply talking to substantially addressing Aboriginal concerns by adopting appropriate accommodation measures (Christie 2006). Long-held First Nation grievances about how they had been ignored in the decision-making of government and industry, standing and forced to stand on the sidelines as they watched resources leave their lands to make others rich and leave them poor, now found new legitimacy in the consultation cases.

Empowered by the legal victories of the Haida, Taku and Mikisew, angered by the glacial pace of change in the Ontario government’s consultation approach and worried by the rapid influx of mining “intruders” on their lands, five First Nations in Treaty #9 [1929 adhesion 1], including the KI, declared mining exploration moratoriums affecting 5 million hectares of land in Ontario’s Far North. Their October 2005 “No Means No” declaration put the mining industry and the government of Ontario on notice that the First Nation commons would not be easily enclosed by junior mining exploration companies seeking speculative profits in their endless cycles of promotion. The latest round in the First Nation struggle against what David Harvey (2009) calls “accumulation by dispossession” had begun in Ontario.

First Nation moratorium or not, mining exploration company Platinex decided to test the resolve of KI and set up a drilling camp on the community’s traditional lands at Nemeigusabins Lake in February 2006 (MNP 2006b).

The Company and KI disagree about what took place when the Platinex drillers and KI community members met in the open air on the land for two weeks in February 2006. Platinex tells a story of conspiracy, threats, violence and sabotage, a story vigorously disputed by KI. KI tells a story of meetings for tea and polite requests to leave. The following facts, however, are undisputed.

Chief Donny Morris and Councillor Sam McKay delivered an eviction notice to the drillers and the next day the Company flew in a corporate security consultant, popularly known as “the mercenary,” who eventually organized a “truce” and the withdrawal of the drilling crew from the site. No one was injured and no one was arrested.

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