Justice for Grassy Narrows

Asubpeeschoseewagong Anishinabek (Grassy Narrows First Nation) is an Anishinaabe Nation situated 80 kilometres north of Kenora, Ontario, in Canada. The Nation’s membership is approximately 1,700. Their remote traditional Territory spans approximately 8,000 square kilometres. 

The community has lived sustainably for millennia, using the forests, rivers, and lakes for physical, economic, cultural, and spiritual sustenance. Many in the community still depend on hunting, trapping, fishing, and gathering berries and medicines from the land as a core part of their culture and an important part of their diet and way of life.

Yes, sediment in the English-Wabigoon river system still has elevated mercury, which accumulates in the food chain and in people who eat the fish. Though mercury effluent is now regulated, there remain elevated levels of mercury in the river system, and industrial activities contribute both mercury and other chemicals, including sulphate, that exacerbate and create harm. The mill is still authorized to and does release chemicals into the river system. 

Once ingested, the harm from mercury never goes away, so the people of Grassy continue to experience the effects of mercury poisoning. Mercury passes from one generation to the next, from mother to child, through the placenta. Today, children of mothers who ate fish from the English-Wabigoon river system during pregnancy are four times more likely to be born with nervous system disorders and learning disabilities.

Grassy Narrows is asking the court to declare that the federal and provincial governments are in violation of Grassy Narrows’ Treaty rights, have failed to fulfil their Treaty and fiduciary obligations to Grassy Narrows, and have engaged in dishonourable conduct. 

The claim emphasizes that, in the face of the environmental disaster they authorized, the governments had a duty to protect and restore the ecosystem to support Grassy Narrows’ meaningful exercise of Treaty rights and the cultural survival of the community. 

The ultimate goal for Grassy Narrows is mercury justice, and restoring their Anishinaabe way of life and wellbeing.

While the legal challenge is an initiative of Grassy Narrows leadership and community, fundraising to ensure the case gets to court is being done by RAVEN (Respecting Aboriginal Values and Environmental Needs) and Amnesty International Canadian Section (English-Speaking) with Amnistie internationale Canada (francophone). 

All the funds raised for Grassy Narrows campaign go to Indigenous litigation. 

85% of the funds raised go to Grassy to fund their legal challenge; 15% of donations go to RAVEN’s Discretionary Litigation Fund to support emergency or unexpected legal costs incurred by partnered Nations.

In 1985, Grassy Narrows First Nation entered into an Agreement with Canada, Ontario, Great Lakes Forest Products and Reed Inc. Products Ltd (then current and previous owners of Dryden Chemicals Ltd). 

Part of the 1985 Agreement was used to provide a small monthly disability income support to community members who showed symptoms of mercury poisoning. 

At the time, people thought that the nightmare of mercury contamination would soon be over. However, the monthly disability income was insufficient to cover basic expenses or ensure even minimum nutrition for mercury sufferers, and the government did not take positive actions to remediate the river system. 

More than 35 years later, the mercury crisis continues to rob Grassy Narrows people of their livelihood, culture, and health, yet fewer than 30% of the people receive the small monthly disability benefit.

Under the 1985 Agreement, Grassy Narrows received $8 million in compensation mostly from the mill owners, a small amount, even by 1985 standards, and completely inadequate to address ongoing harms. In the new litigation, Grassy Narrows argues that the 1985 Agreement did not discharge the Crown’s Treaty and other obligations.

In 2018, Ontario put $85 million into a trust to support the study and remediation of the English-Wabigoon River. The funds can only be used for remediation activities, such as studies, plans, and actions to lower mercury levels in the fish. It is highly unlikely the $85 million will cover the costs of remediation. To this day there is no approved remediation plan. 

In 2020, Grassy Narrows and Canada signed a Framework Agreement to provide funding for the construction and operation of a mercury care home in the community. However, the facility is still not built. While these commitments represent a step toward justice and healing, and it is important to care for those who have been so detrimentally affected that they require a care home, these commitments do not address the harms that Grassy Narrows people have experienced for the past six decades, including the violation of their Treaty rights, or to have a healthy community in the future. Much more needs to be done to restore what mercury has taken, and continues to take, from Grassy Narrows’ way of life, livelihood, and wellbeing. Grassy Narrows requires, and seeks in the litigation, compensation as well as changes to how the government regulates industry in their Territory.

From 1962 to 1970, approximately 10 metric tonnes of inorganic mercury were discharged into the Wabigoon River. The mercury was released through an effluent ditch on the Dryden Ontario site of Dryden Chemicals Ltd., a subsidiary of a large pulp and paper operation. Dryden was using metallic mercury in the industrial process for the bleaching of pulp. 

At that time, there were no regulations preventing such dumping, even though some forms of mercury had been found to be poisonous in Minamata, Japan as early as 1956.

More recently it was discovered that the mill had also buried drums filled with mercury waste in a pit behind the mill site. This information came to light in 2015 when a former mill worker contacted Grassy Narrows. 

The Toronto Star conducted testing on the site in 2017, finding highly contaminated soil, and the results were confirmed by the Ontario Ministry of the Environment in 2018. Ontario has yet to excavate the site or investigate it further.

New scientific studies in 2024 indicate that effluent from the mill contains sulphates and organic waste, which are known contributors to methylation of mercury in aquatic ecosystems. Methylmercury is the most toxic form of mercury to humans, and the form that bioaccumulates in the food chain, including in fish that Grassy Narrows people rely on for their sustenance, livelihoods, cultural practices, and Treaty rights. The government has allowed the mill to discharge sulphates and organic wastes into the river system despite the fact that they exacerbate and prolong the mercury crisis.  This is causing ongoing harm to Grassy Narrows’ people and Territory.

In 1979, the mill owners threatened to shut the mill down. Ontario offered Great Lakes Forest Products, the previous owner Reed Paper, and any future owners a broad indemnity, assuming all environmental liabilities beyond $15 million related to the mill and its mercury dumping. That protection was reiterated in 1985 after Reed Paper and Great Lakes Paper companies contributed a relatively small amount of money (approximately $6 million) to Grassy Narrows as part of the 1985 Agreement.

The government is the regulator of industrial activities and resource extraction in and around Grassy Narrows’ Territory. By virtue of its Treaty relationship with Grassy Narrows, the government has solemn duties to take steps to fulfil and protect Grassy Narrows’ Treaty rights and act honourably in all of its dealings with Grassy Narrows. Grassy Narrows seeks to enforce government obligations and change its approach to regulating industry and honouring its Treaty commitments.

Once the Ontario and Canadian governments became aware of the effects of inorganic mercury caused by the Dryden Pulp Mill in the English-Wabigoon river (1969), they ordered commercial fishing to stop, and told anglers and Grassy Narrows to limit eating the fish. While the governments technically told Grassy Narrows about mercury, there was mixed messaging, with officials downplaying the severity of the contamination and the risks to health. For decades, government officials even denied Grassy Narrows had mercury poisoning, claiming that community members had not been poisoned and did not suffer higher levels of disease.

The Ontario and Canadian governments knew that without active remediation the river would continue to be contaminated and pose a risk to the health, safety, and Treaty rights of the people of Grassy Narrows. The governments had scientific reports from the 1980s that said the river would be contaminated with mercury for over 100 years if no remediation occurred. And yet the government decided to reject recommendations of scientists to remediate the river and instead opted to do nothing, while telling Grassy Narrows the river would clean itself up. Furthermore, the government allowed the mill to continue to discharge sulphates and organic wastes into the ecosystem, despite their known methylation effect on mercury. Today, the water and fish remain contaminated and continue to poison the Nation’s community. Only in 2020 did Canada admit that mercury had hurt the health of Grassy Narrows people. 

This means that for decades, people were exposed to toxins causing debilitating illness and even death — all preventable had the government been proactive and offered fair support and restitution for the community.

Mercury has a wide range of impacts on Grassy Narrows people who eat fish (as well as on their unborn children) – a practice that is a core part of their way of life, culture, and sustenance. Mercury attacks the brain and nervous system and its classic symptoms include loss of sense of touch, balance, coordination, vision, and hearing. 

Even at relatively low levels, mercury increases the risk of a wide range of conditions including conditions that impact success at school, diabetes not treatable with insulin, neuropsychiatric, and neuropsychological conditions. Recent studies in Grassy Narrows have found that mercury exposure is linked to suicide attempts and to premature death.

The community as a whole has suffered from the loss of loved ones, loss of their primary source of livelihood, erosion of their culture, inability to safely practise their Treaty rights, and social crises.

This case will ask the court to articulate legal and constitutional obligations of the Crown to take steps to protect and remediate the natural environment to support the meaningful exercise of Treaty harvesting rights and responsibility for ongoing harm, including compensation. The case therefore could serve as an important precedent for other Indigenous Nations’ legal actions relating to the environmental degradation of their territories. If successful, it would be among the first cases in Canada to succeed in obtaining collective damages to a First Nation over the impacts of toxic environmental pollution.

In 2018, Grassy Narrows adopted a Land Declaration as an expression of sovereignty affirming their relationship to the land as a primary value and the foundation of who they are as Anishinaabe people. A key principle is Manaachitootaa Aki — protect the land. 

“We take care of our land and it provides for us. We take only what we need and we leave the rest for our relations in the animal, plant, bird, fish, and spirit life. Our relationship with our land sustains us physically, mentally, emotionally, and spiritually as Anishinaabe people. We need the land for our survival as a people.” – From the Asubpeeschoseewagong Land Declaration

Grassy Narrows has banned further industrial activity in their homeland, including industrial logging, mining, oil and gas extraction, and hydroelectric dams. 

Grassy Narrows prioritizes traditional uses of the land for hunting, fishing, trapping and gathering plants, small-scale selective logging for community needs, and operating lodges and camps.

Grassy Narrows seeks to rebuild a thriving Anishinaabe way of life and livelihood on their Territory that restores and strengthens their connection to the land and water. In doing so, Grassy Narrows is stabilizing the climate, harbouring biodiversity, and leading the way to a healthier future for everyone.

A successful case against Canada and Ontario would: 

• Require remediation of the English-Wabigoon river system and improved supports for health, social, and the exercise of Treaty rights, bringing a measure of social, cultural, and environmental healing; 
• Prevent the Crown from allowing further industrial degradation in Grassy Narrows’ Territory without its free, prior, and informed consent; 
• Require the Crown to work in partnership with Grassy Narrows to protect and conserve its Territory;
• Strengthen the environmental health of all people in Canada by setting an important precedent for governments’ obligations to preserve and restore environmental integrity for the practice of Treaty rights;
• Provide just compensation to redress harm, restore health, and build a healthy future; and
• Require a different approach to regulation by the government that gives greater priority to health and the environment. 

The case could have a substantial impact on Crown and Indigenous relations. If Grassy Narrows is successful with this challenge, it could help transform the legal landscape with respect to the relationship between Indigenous rights and environmental degradation by setting a precedent in Canada. 

Other Indigenous communities, especially Treaty Nations, would be able to use the precedent to prevent and address contamination and environmental degradation and to exert control in their own territories, seek compensation, and hold the government accountable for environmental impacts from Crown-regulated industry. 

A win for Grassy Narrows is a win for us all.