First Nation demands to be consulted on chromite project – by Ian Ross (Northern Ontario Business – August 2012)

Established in 1980, Northern Ontario Business provides Canadians and international investors with relevant, current and insightful editorial content and business news information about Ontario’s vibrant and resource-rich North. Ian Ross is the editor of Northern Ontario Business ianross@nob.on.ca.

The road to the Ring of Fire has hit an enormous speed bump. What looked on paper to be a straight-forward road easement application by Cliffs Natural Resources to an Ontario mining tribunal to cross the claims of KWG Resources, has hit a snag that could slow development in the James Bay region.
 
Neskantaga First Nation, a remote community southwest of the Ring of Fire chromite camp, has given the Ontario Lands and Mining Commissioner something to think about in applying for legal standing at a July 5 hearing.
 
The First Nation wants to be a participant to challenge the Cliffs road application and make the larger case that they have treaty and Constitutional rights to be consulted and included in resource development.   The commission adjourned after two days to consider whether Neskantaga has status to be a participant in the proceedings.
 
“You can’t continue until it’s decided who has status at the hearing,” said KWG vice-president Bruce Hodgman. He doesn’t expect a fast resolution anytime soon and expects this preliminary issue could go on for “months” before the commission even starts the formal hearing.
 
“This is something they’re going to be extremely careful with and take their time and make sure it’s done properly,” said Hodgman. “There’s so much at stake.”
 
Cliffs is seeking a 100-metre-wide easement over KWG’s mining claims to drive a 260-kilometre long road corridor from its Black Thor chromite project, south to the Canadian National Railway’s transcontinental line at a place called Cavell. The spot is just west of where KWG wants to build a north-south Ring of Fire transload facility and railroad.
 
Neskantaga, formerly known as Lansdowne House, is an Oji-Cree community of 300 located southwest of the Ring of Fire.
 
When Cliffs confirmed in May that Sudbury was the site for its Ring of Fire ferrochrome smelter, the company immediately launched the mine project into the feasibility stage.
 
For Neskantaga, the pace of development has gone far faster than they would like, and the band feels its concerns over what Cliffs’ massive $3.3-billion mine and processing project could do to area rivers, fishing grounds, wildlife habitat and their way of life, has been largely ignored.
 
Chief Peter Moonias further amplified the tension by calling Cliffs “an American bully hell-bent on making a road and a mine no matter what First Nations say.”
 
Neskantaga was one of six communities that placed both Cliffs and KWG on an ‘evictions list’ of 22 companies in declaring a moratorium of exploration activity until “government-to-government” negotiations take place.
 
Despite Cliffs and KWG being 70/30 partners on the Big Daddy chromite deposit, the uneasy relationship between the two companies was borne out at the hearing when arguments became so heated, the commission adjourned to the next day.
 
Cliffs wants a portion of KWG’s submitted materials to be redacted and publicly sealed. The court was closed, but those issues will be dealt with later.
 
Cliffs Natural Resources spokeswoman Patricia Persico would not comment on the proceedings, but said by email that Cliffs sought surface rights to build an access road on KWG’s claims, KWG denied Cliffs’ request, and the dispute is being handled by the commission.
 
She said it shouldn’t affect Cliffs’ plans to have its Black Thor chromite deposit in production by 2015.
 
“We are still working toward the same timeline.”
 
Neskantaga’s lawyer, Matthew Kirchner, a partner at Ratcliffe & Company LLP in Vancouver, said if the hearings are to determine surface rights, “there’s absolutely no question” the community must be a party.
 
“Neskantaga has been cut out of this thing from the beginning and this is the first opportunity for them to be in court and say, as a matter of law, we’ve got to be included.”
 
Persico said Cliffs is focusing its negotiations on Webequie and Marten Falls, “the primary communities impacted by our proposed mine and camp activities,” but that Cliffs will reach out to engage other communities as well.
 
She said Cliffs officials have met with Neskantaga council and offered to give a presentation on the project; however, the community has not extended an invitation.
 
But consultation, she added, is the duty of the province.

Kirchner said the consultation process, and the fallout from not doing it properly, is not something that the B.C. government and companies take lightly.
 
B.C. has been a legal incubator of some landmark Supreme Court cases regarding natural resources and government’s duty to consult with First Nations.
 
“I’m very surprised to how far this Cliffs project has gone down the path. It’s quite stunning to me that the minister involved would announce support for the road project without ever having consulted the First Nations.
 
“Consultation isn’t an afterthought. It can’t be the last box you check off in the process…and the duty has to be fulfilled before major decisions are made.
 
“It’s not up to Cliffs to fix a timeline and require others to live by it.”
 
Hodgman said while KWG was included on the eviction list, its railway subsidiary company, Canada Chrome, was not.
 
“We’ve had many, many discussions with a variety of First Nation communities regarding the rail corridor, trying to bring them onside, and find a formula to give them equity of the railway.”
 
The mining commissioner’s hearing might be the first round of a series of First Nations legal challenges to come over consultation, social and environmental issues concerning mineral development in the Far North.
 
www.mnr.gov.on.ca