Government has a legal obligation to consult with Aboriginal peoples before proceeding with development that has a potential to negatively impact their rights. This obligation has been confirmed on many occasions by the Supreme Court of Canada. The rights held by Aboriginal peoples are constitutional rights, protected by the highest law of Canada. The Ontario Ministry of Northern Development and Mines (Ministry or MNDM) is seeking public opinion on developing Aboriginal consultation guidelines for mining activities in Ontario. Despite the current dispute between the Province of Ontario and the Ardoch Algonquin and Shabot Obaadjiwan First Nations, we are taking this opportunity to provide our views on how best to proceed with consultation on mining activities in our traditional territories.

With respect to the principles enunciated in the Discussion Paper, we set out our own laws and agree that to the extent the aims identified in the Discussion Paper accord with our laws we are in agreement. However, we find significant evidence of bias on the part of the Ministry in favour of the mining industry in its mandate, Discussion Paper and previous actions towards us and other Aboriginal peoples. There is no indication that the Ministry understands or is at all sympathetic to our rights and interests.

Recent pronouncements by the Supreme Court of Canada decisions likewise encourage the assimilation of Aboriginal peoples. Although the Court has indicated that government must accommodate our rights, the reconciliation of our rights with the sovereignty of the Crown gives government great leeway to impose its perspective on what are our rights are and how we might exercise those rights. Considering the Ministry is ignorant of our ways of life and has a bias toward the mining industry to begin with, we are not convinced government will support Aboriginal legal rights, but instead favour economic interests that will destroy our land.

Of greater concern is the “free entry” system of the Ontario Mining Act. Miners are allowed to develop our land without consulting with us first. In fact, the legislation requires the government to issue mining claims, licenses, leases, etc. despite the fact there has been no consultation. This is unconstitutional, as the Courts have stipulated that there must be consultation. An Act which limits the Crown’s discretion cannot be saved by a consultation process that allows no room for reconciliation or accommodation.

Canada is a party to the Convention on Biological Diversity which requires the government to respect and protect our traditional ways of life. Mining threatens the environment on which we rely for our food, medicines and spiritual wellbeing. Allowing a uranium mine to proceed in our traditional territory puts Canada in breach of its international obligations.

The government has made it clear that it will consider “buying out” Aboriginal interests in the land, but no amount of money can compensate us for the environmental degradation and loss of our lands. We cannot eat money. In our view, consultation is not a question of balancing Aboriginal rights and economic interests. The rights of Aboriginal peoples are constitutionally protected rights and are thus are always of a higher order than any interests of a mining company. The degree to which the Courts have attempted to elevate economic interests of non-Aboriginal peoples to a plane equal to that of constitutionally protected rights is nothing more, in our opinion, than the Courts having not yet thrown off the cloak of colonialism.

We note the Delgamuukw decision that makes it clear that at times the “full consent” of Aboriginal peoples is required . This is particularly true in the case of uranium mining, which has the potential to despoil large tracts of our land by releasing highly dangerous and long lasting toxins making impossible the common uses to which we put the land, such as for hunting, fishing, drinking water, and gathering of medicines. We expect the Crown to seek our consent when contemplating activities that fundamentally denude us of the meaningful exercise of our rights.

We also provide our thoughts on time lines for consultation, information that we may require to develop an informed opinion, the scope of the consultation and the role of various parties in a consultation. In particular, we note that the mining industry may have an interest in the outcome of a consultation, but this does not make it a party to the consultation. The Courts have made it clear that it is the Crown that has a duty to consult with Aboriginal peoples, not industry.

We wish to thank the Ministry for producing a Discussion Paper on Aboriginal consultation in the context of mineral development. This has helped us to prepare our thoughts on the subject.

However, we have noted several defects in the Discussion Paper, including lack of specificity, lack of clarity, erroneous presumptions, and disagreement on fundamentals. In particular we are concerned about the constitutionality of the Mining Act and the potential for imposed assimilation through reconciliation.

We encourage the Crown to take note of the words of the S.C.C. “The management of these [Aboriginal – Crown] relationships takes place in the shadow of a long history of grievances and misunderstanding.” “The reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown” must ultimately take place through “negotiated settlements, with good faith and give and take on all sides… Let us face it, we are all here to stay”