Hearing Neskantaga’s Unyielding Voice: a report from the court

Neskantaga Nation, located in the expansive peatlands of Northern Ontario, appeared in court last week. The remote First Nation, faced with multiple evacuations in 2020 and 2021 due to COVID-19 and water quality issues from the 28 year long boil-water advisory, had no capacity to gather with their elders and knowledge-keepers to discuss an all access road to the Ring of Fire. A massive mining development in Neskantaga’s homelands, the Ring of Fire would see heavy equipment, thousands of workers shuttling to ‘man-camps’, and significant environmental impacts from mining such as fuel spills, acid mine drainage, contaminated tailings ponds that carry the risk of leaking or dam failure. Unable to meet and discuss the impacts of the road, Neskantaga requested Ontario to pause the consultation process.

Driven by a premier who wants to see development happen “if I have to jump on the bulldozer myself”, the province of Ontario, who is ultimately responsible for consultation over resource projects under the Environmental Assessment Act (EAA), did nothing. They did nothing when the proponents, who are First Nations themselves, notified Ontario that Neskantaga wanted to pause the consultation process. 

What did they do instead? They gave the green light for the Environmental Assessment process to continue, leaving Neskantaga’s voice unheard.

A head-scratching denial

Neskantaga went to court on July 13th and 14th, but they took a different approach than one might expect. Instead of filing a judicial review, where the facts of injustice would be argued and addressed, they filed a 14.05 application, a legal approach that allows the Nation to seek clarity from the Ontario Superior court on how the province should consult with Indigenous Nations under the EAA. Such a directive from the court aids not just Neskantaga this one instance, but any Nation who is caught in a similar quandary.

Ontario had different plans. As avoidant as they were with consultation, Ontario’s lawyers argued this case should not be decided by the courts. They didn’t see any practical utility in the Superior court’s declarations as it would simply “restate the law” and “would not resolve a live dispute and are instead directed at hypothetical, future breaches” of consultation. 

This made Jeremy Falconer, lead lawyer for Neskantaga Nation, scratch his head. 

It’s hard to believe there is no live issue before the court. Land managers in band offices across northern Ontario face 2-3 development permit applications landing on their desks every week. The EAA is used everyday, and as the road continues to go through the Environmental Assessment process, opening access to 26,000 mineral tenures issued by Ontario to 15 mining companies and individuals in the Ring of Fire, covering nearly 5,000 square kilometres of Indigenous land, it’s inconceivable that consultation with Neskantaga and other First Nations is hypothetical. 

Furthermore, the case doesn’t simply “restate the law.” Neskantaga’s legal team pointed to specific sections of the EAA and its Codes of Practices where it lumps Indigenous Peoples in with all “interested persons” when consultation is required. 

This includes (word for word) “neighbours and individuals, environmental groups or clubs, naturalist organizations, agricultural organizations, sports or recreational groups, organizations from the local community, municipal heritage committees, ratepayers associations, cottage associations, Aboriginal peoples and communities, Francophones and businesses.” 

The practice of tossing Nations in with stakeholders fails to honour the unique relationship, Treaty partnership, and Section 35 constitutional rights of Indigenous Peoples. It completely undermines the Indigenous caretakers of the lands, their ancestral ways of stewardship that have kept the land healthy since time immemorial, and their inherent and sacred rights protected under Canada’s constitution. 

Simply put, the EAA is unconstitutional. There are no specific measures taken to fulfill the Crown’s duty to consult and accommodate, a mechanism under the Constitution Act, 1982 that puts an onus on the Crown to take special considerations when consulting with Indigenous Peoples’ when their protected rights are in jeopardy by resource extraction projects. It is clear that Ontario violates the duty to consult and accommodate when there is no mention of it anywhere in the EAA

Ontario? Are you there?

Remember, this doesn’t just relate to the road project. This relates to every environmental assessment of every major resource project in the province. With thousands of proposals for mining, logging, road-building, and dams on the table throughout Ontario’s north, there needs to be free, prior, and informed consent from Indigenous Nations to protect their way of life and our planet from climate catastrophe.

Sadly, the EAA currently doesn’t care much about Nations’ full consent. In fact, there is such a lack of framework for consulting Indigenou Nations that Ontario can approve anyone to carry out the environmental assessment of a resource extraction project, including First Nations. That’s how Marten Falls First Nation became in charge of fulfilling Ontario’s obligation for consultation over the all-weather access road to the Ring of Fire.

RAVEN and Neskantaga respect Marten Falls’ right to self-determination over the road project; they decided it was best for their community to have an all-access road to create educational and economic opportunities, and they did an incredible job with incorporating Anishinaabe principles into the procedural aspects of consultation. That isn’t what Neskantaga went to court for. 

Neskantaga went to court because Ontario is able to offload their statutory consultation duties with Indigenous Nations onto other Nations, pitting them against each other in a divide-and-conquer fashion as one Nation has a clear objective to get a project approved while the other Nation is considering their rights and lands. 

As Jeremy Falconer simply put it, “It’s just brutally awkward.”

Neskantaga Nation is not necessarily opposed to development. What they’re opposed to is not having the free, prior, and informed consent to make decisions about resource extraction on their homelands. They couldn’t come together in times of crisis to make an informed decision about the access road to the Ring of Fire. Mere 30 day extensions for consultation doesn’t cut it when a Nation is faced with compounding and intersecting problems caused by colonialism. When there isn’t any accountability for Ontario to fulfill the duty to consult and accommodate under the EAA, they ignore Nations’ needs to favour industry’s desire to bulldoze over Indigenous lands for immense profit. 

In three to six months, the Ontario Superior court will make their decision. They will decide if they are able to give guidance to the issues raised above, and if so, what parts of the EAA must be revised for Ontario to fulfill their duty to consult and accommodate First Nations over resource projects. 

A win for Neskantaga would usher in a new era, strengthening the free, prior, and informed consent of Indigenous Nations over extraction projects that affect their rights and territories. RAVEN is grateful to everyone who has donated, fundraised, and organized to support this important challenge. We will keep you posted!

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