Canadian Star Minerals suing province for not consulting Shoal Lake 39 and 40 ahead of its project – by Alan S. Hale (Kenora Daily Miner and News – May 14, 2014)

Canadian Star Minerals Ltd. is suing the provincial government for $152 million in damages because it believes Ontario failed in its obligation to perform the consultation with the Shoal Lake 39 and 40 First Nations.

According to court documents filed with the Ontario Superior Court on May 8, the mining company was attempting to explore a claim for gold deposits inside the traditional territory of the Shoal Lake First Nations after acquiring the necessary rights and mining leases to do so from the government in October of 2009. The company alleges representatives from Shoal Lake 39 arrived at the site and forced its drilling crews to leave.

“Canadian Star Minerals were subjected to having rocks thrown at them while they were on Canadian Star Mineral’s properties and having threats of physical harm being directed at them. Despite the fact the Crown and the OPP were advised of these events, no action was taken,” the claim states.

According to Shoal Lake 39’s recently-elected chief Fawn Wapioke, the company was told to leave the mining site because the province had given the company permission to dig in a culturally sensitive area of its territory without consulting and getting permission from the community.

“The area granted unilaterally by Ontario lies upon a sacred area and waters that our Nation feels is integral to our Anishinaabe culture and identity as a Nation of Indigenous Peoples, and would allow for the flourishing of such culture and identity for future generations,” explained Wapioke.

The chief did not speak to any alleged violence towards mining crews by Shoal Lake 39 members, but her predecessor Eli Mandamin has denied they did anything more than deliver a letter telling the workers to leave.

The crux of the mining company’s case against the provincial government is that the Canadian constitution requires that First Nations be consulted about decisions affecting them, particularly when it involves development inside their traditional territory. The company is arguing that this duty to consult rests solely on the government and not on the development companies.

According to the court documents, the Ontario government did not make any effort to hold consultations with the Shoal Lake First Nations which, the company argues, made the conflict that eventually scuttled its entire project inevitable.

“The Crown failed to take any steps in respect of consulting with any potentially affected First Nations Groups and in particular failed to take any steps in respect of consulting with (the Shoal Lake 39 and 40 First Nations),” reads the court documents. “At no time did the Crown advise Canadian Star Minerals that it would not be discharging its constitutional duty in respect of consultation, nor did it advise Canadian Star Minerals that there were any potential issues in respect of proceeding with the exploration and development.”

Canadian Star says it has been trying to do its own consultation with the two First Nations since it was forced off the claim in 2009 without success. Although they share a common history and territory, the two aboriginal communities are known for differing priorities and political styles and the company found that negotiating with two groups with two different agendas was too much for them.

“Consultation with Shoal Lake 39 and 40 was and has been a very difficult process, as Canadian Star Minerals, in its efforts to deal with them, in essence had to deal with two separate groups which had divergent opinions and levels of cooperation with Canadian Star Minerals.”

The company even alleges in its court filing that Shoal Lake 39 appeared to be using the consultation process to attempt to extract money out of it in return for cooperation.

“Canadian Star Minerals encountered significant difficulties in dealing with Shoal Lake 39 in particular, in that it requested various fees including ‘permitting fees’ in respect of permission for an assessment process and imposed or sought to impose ‘penalties’ for failure to comply with said fees in the sum of $300 per day without directing Canadian Star Minerals to any applicable legislation.”

Wapioke blames the Ontario government for the failure of negotiations with the company, saying that the First Nation attempted to create a new process that would allow for “mutuality and accountability in resource decisions in our homelands,” but, she says, the province would not come to the table.

“Despite repeated attempts to move forward in this manner, Ontario has to this point not formalized this new relationship, a relationship that would prevent undue delay, be mutually beneficial to all parties involved, and create a process for future cooperation. Our Nation is not opposed to resource development, but it does insist that Ontario live up to its duties and responsibilities as befitting the honour of the Crown,” said the chief.

The company believes its mining project is now a lost cause and is suing the provincial government for millions in damages because it argues it was the province’s duty to consult the First Nations to make sure the company would be able to use the land before giving it the rights to develop it.

Canadian Star Minerals is not the only mining company to be making this argument in court. North Superior Resources launched a similar lawsuit last October after its own crews were kicked off Sachigo Lake First Nations’ territory because they also had not been consulted.

In this case, Canadian Star Minerals is asking the court to award them $150 million representing the value of its mineral claims and other losses and that the province also pay $2 million so the company can recoup its losses from the application, exploration and consultation processes.

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