Neskantaga Nation is headed to court to defend its Free, Prior and Informed Consent in the face of Ontario’s rush to approve road-building and mineral exploration permits in the Ring of Fire in northern Ontario.
In the middle of the pandemic, while Neskantaga was dealing with lockdowns, Canada’s longest boil-water advisory, and community evacuations, Ontario started the clock on a key access road project that would enable a massive expansion of mining in the Ring of Fire.
In their haste to develop the road, the province imposed impossible deadlines, disregarded Neskantaga’s laws and protocols for community decision-making, and failed to accommodate the multiple crises the Nation was facing.
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In October 2021, the government of Ontario approved the Terms of Reference, and initiated an Environmental Assessment for the first of segments of an access road into the Ring of Fire — a massive mineral deposit in the James Bay Lowlands.
Neskantaga’s legal action challenges the Ontario government for failing to fulfil its duty to consult and accommodate, by conducting the consultation in a way that made it difficult if not impossible for Neskantaga to participate.
Neskantaga has well-defined, centuries-old community protocols around decision-making on land and resources, which includes bringing the whole community together to discuss and consider proposed projects in their territory. This was obviously impossible during pandemic lockdowns; Ontario pressed on regardless.
Neskantaga First Nation is asking the court to clarify the process that must be followed for consulting with First Nations under Ontario’s Environmental Assessment Act, to ensure the Crown fulfills its duty to consult and accommodate.
Every Trick in the Book
Ontario is eager to allow mining companies access to the vast deposits of chromite, nickel, copper and platinum located in the James Bay Lowlands. Premier Doug Ford publicly vowed to jumpstart mining in the Ring of Fire, proclaiming; “If I have to hop on that bulldozer myself … we’re going to start building the roads.”
While the Premier never actually jumped on that bulldozer, the pandemic, coupled with Neskantaga’s ongoing water crisis, provided a perfect foil for a bulldozer-style consultation. Ontario’s oppressive timelines for consultation made it impossible for Neskantaga to bring its community together in line with Anishinaabe and Oji-Cree protocols, in order to gather feedback and prepare a meaningful submission.
Ontario also made use of the oldest trick in the book — project-splitting — with a side of divide & conquer. What began as a single transportation corridor to serve a mining project, overseen by a single project proponent, was split off into multiple, discrete projects with various First Nation proponents.
“The reality is that all these smaller projects—each individual road segment, the construction of the future mines, and the broader infrastructure initiative—are all part of a more expansive plan to develop the Ring of Fire. By splitting the project, and in particular the road components, into smaller pieces, Ontario has impeded Neskantaga’s ability to keep up with, and to substantially engage with the Environmental Assessments for these projects.”
- From the Neskantaga Notice of Application
A broken environmental assessment process
An even deeper problem than the current provincial government’s zeal for unlocking the mineral riches of the Ring of Fire is Ontario’s Environmental Assessment Act itself, which fails to provide for First Nations consultation. Instead, the Act only provides for a generic feedback mechanism (from any interested party) within a set comment period.
Neskantaga argues that these provisions of the Act fail to fulfill Ontario’s constitutional duty to meaningfully consult and accommodate First Nations.
In Neskantaga’s view, a generic feedback mechanism is not sufficient to fulfil the government’s duty to consult. Rather, that duty requires specific consultations with each affected First Nation, on that Nation’s terms, and in line with its laws, customs, and practices.
Neskantaga’s protocols, informed by centuries of Indigenous law and practices, require that:
- leadership convene in-person meetings with community members, including elders,
- share information orally and,
- traditionally, conduct meetings in the Ojibwe and Oji-Cree languages.
These requirements are the bare minimum for Neskantaga in order to fulfil its own consultation duties with community members.
The Ontario-funded plan to develop the Ring of Fire hinges on the development of a North-South all-season road corridor to provide access to the region.
For the Indigenous caretakers of this land, the stakes are high: their ability to continue to govern, perform ceremony, and derive sustenance from the lands and waters in the headwaters of the Attawapiskat River as guaranteed by Treaty 9.
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Neskantaga First Nation is an Ojibwe community situated along the shores of Attawapiskat Lake. The community is located in the district of Kenora, 436 kilometers northeast of Thunder Bay, Ontario.
The Neskantaga culture is intertwined with three river systems that connect their community on Attawapiskat Lake with James Bay: the Attawapiskat, the Winisk and the Albany drainages. Neskantaga members fill their freezers with sturgeon, moose, ducks, berries and other foods from their homeland. History is rich in this area. The ancestors of Neskantaga were involved in the fur trade since the late 1600s, with ancient Anishnawbe communities in the region dating back to at least 3,000 BCE.
Neskantaga Nation is signatory to Treaty 9 (1905).