Wabauskang First Nation granted Supreme Court appeal over mining projects – by Alan S. Hale (Kenora Daily MIner and News – October 1, 2013)


Another Treaty 3 First Nation will have its day at the Supreme Court to argue its case against allowing the province making decisions regarding resource extraction in the First Nations traditional territory. The high court has granted an appeal to Wabauskang First Nation, which has been fighting mining projects inside its territory since it took Rubicon Minerals to court in December 2012.

“We fully expect to be successful at the Supreme Court, and we expect that we will be successful in our lawsuit against Rubicon as well,” said Wabauskang’s chief, Leslie Cameron.

“We’ve always said that Ontario had no jurisdiction to approve Rubicon’s closure plan.”

Lawyers for Wabauskang are planning to make arguments very similar to those of Asubpeeschoseewagong (Grassy Narrows) First Nation in its Supreme Court challenge against the province’s ability to issue forestry licenses in the First Nation’s territory. Wabauskang’s case is deeply intertwined with Grassy Narrows’, often using the other First Nation’s 15-year legal battle against logging in the Whiskey Jack forest as precedent for its own arguments.

Wabauskang will essentially be arguing that the province of Ontario does not have the right to approve mining plans, such as Rubicon’s Phoenix Gold Mining Project, without involvement from the federal government. Treaty 3 does give the provincial government the power to “take up” land for resource development, but just like Grassy Narrows, Wabauskang believes that power is subject to approval from the federal government, particularly when by doing so it is infringing on other treaty rights such as hunting and fishing.

“This case has the potential to reset the relationship between Treaty First Nations and provincial governments throughout most of Canada,” said Wabauskang’s lawyer, Bruce McIvor.

“For Treaty First Nations across the country, it is hard to over-emphasize the importance of this appeal.”

If the Supreme Court does rule in Wabauskang’s favour, it will mean that the federal government will have to be involved in some capacity with the province’s decision to issue mining contracts on treaty land. While the federal government would be obligated to consult with the First Nation before rendering its own decision the Rubicon project, it could still just approve the new mines and the company would be able to proceed.

It will be many months before Wabauskang gets its hearing at the Surpreme Court, and months more afterwards before the decision is released.

For the original version of this article, click here: http://www.kenoradailyminerandnews.com/2013/10/01/wabauskang-first-nation-granted-supreme-court-appeal-over-mining-projects