It’s being left up to resource companies to negotiate access to aboriginal land. Is government outsourcing DTC to the private sector? Hindsight says everyone involved probably should have seen it coming.
In June 2012 — more than a year before Cliffs Natural Resources Inc. suspended its planned $3.3-billion chromite-mining operation in Northern Ontario, putting the entire Ring of Fire mining rush on the bubble — Northern Superior Resources quietly halted exploration of its gold claims in northwestern Ontario.
The junior miner was mired in a dispute with the local Sachigo Lake First Nation over compensation for exploration activities in Treaty 9 territory. Under Ontario’s Mining Act, mining start-ups on aboriginal land can proceed only after consultation with local aboriginal communities, which the company did. But things went off the rails.
The company found itself embroiled in disputes with the community over invoices and fees. At one point, the First Nation blocked two Northern Superior staffers from flying out of the community for a day.
In October 2013, Northern Superior filed a $110-million statement of claim against the Ontario government in a case that maps one of the deepest fault lines in the relationship between the Crown and First Nations: the legal doctrine of duty-to-consult (DTC).
“My hair’s a little greyer than it was a year back. But that’s the junior mining sector for you,” says Tom Morris, CEO of Northern Superior. “Suing is not something I wanted to do, believe me.”
Northern Superior argues that provincial or federal governments — not resource companies — must take the lead in negotiating access to traditional land. In its statement of defence, the province argues that Northern Superior went in with its eyes open and any liability in terms of DTC would be owed to the First Nation, not Northern Superior.
Who’s right? Good question.
Across Canada, aboriginal communities and resource companies are struggling to apply DTC in a fast-changing legal and commercial landscape. And they’re doing it largely on their own; for the most part, governments seem to be leaving First Nations and the private sector to work things out for themselves, with mixed results.
“I think that provinces and the federal government have been extraordinarily slow in implementing duty-to-consult,” says Bob Rae, the former interim leader of the Liberal Party who now serves as chief negotiator for the Matawa First Nations in their dealings with the Ontario government.
“Governments tend to download their DTC responsibilities. They say to companies, ‘Go off and talk to the First Nation, and that fulfills our obligation to consult.’ But DTC can’t be privatized that way. It’s taking governments a very long time to come to grips with this.”
But the pressure is on: DTC affects a vast number of resource projects across the country, from exploration starts to huge, multi-billion-dollar projects like the proposed Northern Gateway pipeline in B.C. And Northern Superior likely won’t be the last resource company to take a government to court over DTC; in December 2013, the B.C. Supreme Court ordered the province to pay $1.75 million to Moulton Contracting, a logging company which sued B.C. for failing to meet its DTC obligations before a First Nation blockade halted operations.
“The Moulton decision was amazing — a private company holding a government to account over DTC — and I suspect you’re going to see a lot more cases like this as the industry pushes back,” says Tom Isaac, the Calgary-based head of the aboriginal law practice at Osler, Hoskin & Harcourt LLP.
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