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Wabauskang First Nation has decided to use its hearing with the Supreme Court of Canada to challenge the Province of Ontario’s ability to delegate the carrying out of aboriginal consultation to mining companies, rather than having the Ministry of Mining and Northern Development deal with First Nations themselves.
Wabauskang was granted a hearing at the Supreme Court in October to settle its long-standing fight with Rubicon Minerals over a proposed mining project inside the First Nation’s territory. With the hearing set for sometime during the week of April 14, Wabauskang, the provincial government and Rubicon have all submitted outlines of their arguments to the court for the justices to consider.
The aboriginal community will still be making the argument that the federal government’s approval is required before treaty land can be appropriated for development use, something the Crown is allowed to do according to Treaty 3. But the First Nations lawyers have also added another argument which says the provincial government went too far when it delegated the responsibility for conducting mandatory consultations with them, and so, the plan for the mine project which has been approved by Ontario is invalid.
“The province is relying on companies to fulfill to some degree their responsibility to consult with First Nations, and this has caused a lot of problems, most importantly from my client’s perspective, but also according to many mining company’s are not pleased about this policy either,” said Wabauskang’s lawyer, Bruce McIvor, who pointed to Northern Superior Resources’ $110-million lawsuit against Ontario for not consulting with First Nations on their behalf.
“This is an important issue across Ontario because the provincial government relies on mining companies to fulfill its own obligations to such a degree that consultations no longer work properly.”
Ontario’s Mining Act does allow the provincial government to delegate “of certain procedural aspects of the consultation” to industry companies. But in the end, it is up to a director of mine rehabilitation — or in Rubicon’s case the director of the Ministry’s Mineral Development and Lands Department, Cindy Blancher-Smith — to examine the company’s final plan and determine if the requirements of aboriginal consultation has been satisfied. In its submission to the Supreme Court, the provincial government argues there is nothing wrong with this arrangement and that it was still directly involved in the consultation process.
“The fact is that the decision (to approve Rubicon’s plan) was only made after extensive consultation with Wabauskang First Nation, which involved participation by Wabauskang, and by which the community’s concerns (regarding adverse effects to treaty harvesting rights) were heard and considered by the Crown in a meaningful way,” reads the provincial government’s submission.
In its own submission, Rubicon echoed the province’s argument that the delegation of aspects of the process has not deprived the aboriginal community of the consultation they are entitled to. Wabauskang’s Chief Leslie Cameron disagrees, saying that giving the proponent of a project the responsibility to consult with First Nations is very problematic.
“It makes for a very one-sided form of consultation process where the provincial government just takes for granted what the company is telling them, saying they’ve dealt with us. And some of the things they say happened (during consultations) are out-and-out lies,” said Cameron.
“We’ve found that instances where we deal with companies where some of our concerns are completely missing from the consultation logs they hand over to the government because they say they’re already dealt with. It seems to me that consultation like this is just a smokescreen so non-native people can believe some thing has been done.”
For the original version of this article, click here: http://www.kenoradailyminerandnews.com/2014/03/11/wabauskang-to-attack-ontarios-ability-to-delegate-aspects-of-aboriginal-consultation-to-industry-at-supreme-court