Grassy Narrows takes Ontario to court for issuing mining exploration permits

Members of a First Nation in northwestern Ontario are accusing the government of breaking the law in granting nine permits for mineral exploration in traditional territory without consulting them — a requirement under the Canadian Constitution and Ontario's Mining Act.

Asubpeeschoseewagong (Grassy Narrows) First Nation wants all nine permits quashed and a declaration that the government "breached the honour of the Crown," according to legal documents filed with the Ontario Superior Court of Justice on Monday.

The permits were issued between September 2019 and February 2021 for land that's been subject to a moratorium on industrial activity by the people of Grassy Narrows since 2007. But the First Nation only learned about them in May, according to the legal documents.

"When the government issues mining permits behind our backs, that's not reconciliation. That's destruction," Grassy Narrows Chief Randy Fobister told CBC News.

Early exploratory activities allowed by the permits, such as the drilling of holes and "mechanized surface stripping which involves the use of heavy equipment to remove all vegetation and soil from areas of rock," could cause harm to the lands that make up the traditional territory of the First Nation, said Fobister.

Lands have been devastated by industrial activities like clear-cut logging, mining and mercury poisoning since at least the mid-1900s, he added.

Old maps of First Nation lands used: chief

After learning about the exploration permits, Grassy Narrows requested additional information.

On June 25, the First Nation received a response from Ontario indicating it wasn't consulted on any of the exploration permits because it only allowed mining activities outside the boundaries of Grassy Narrows traditional territory, the legal documents say.

But the province was relying on a map with old boundaries from the 1980s, Fobister said.

"Some areas in our territory weren't in the map. They said they didn't know that was part of Grassy territory, but that's not true at all."

The chief said the First Nation has been submitting maps to Ontario with updated boundaries to its territory throughout the 2000s.

The Ministry of Northern Development, Mines, Natural Resources and Forestry did not confirm to CBC News whether it was using a map with outdated boundaries. In an emailed statement, a ministry spokesperson said it is committed to fulfilling its duty to consult, but would not comment further "as this matter is before the courts."

The nine permits are held by four resource extraction companies for seven different areas in Grassy Narrows territory:

• EMX Properties Inc., which holds five exploration permits.
• Pacton Gold, with two of the nine permits.
• Power Metals Corporation, one permit.
• Glencore Canada Corporation, one permit.

CBC reached out for comment to each company, but did not immediately hear back.

Lands just starting to heal

The First Nation chief said it is the responsibility of Grassy Narrows and its people to protect the land and the waters within their territory.

In 2007, facing a provincial plan to increase clear-cut logging in their lands, community leaders declared a moratorium on all industrial activity within their traditional territory without community consent. They've also maintained a blockade against logging trucks on traditional territory since 2002.

In 2018, the First Nation signed a land declaration that called on the province to withdraw the territory from forest management planning and mineral staking, as well as ending any hydro damming or oil and gas extraction.

Fobister credited these grassroots actions with the slow restoration and healing of the lands.

"You'll start to see new tracks in the snow here — moose tracks — it's been awhile since I've seen that and I've lived in community all my life," he said. "It's a beautiful sight to see."

Other animals are coming back and trees are starting to regrow.

While many community members still suffer symptoms from mercury contamination of the Wabigoon River, the recovering land and water systems are helping the people of Grassy Narrows heal themselves, Fobister added.

"We're here to continue working on that plan of healing. The youth are crying out for healing, they want support," he said. "The government needs to listen to the cries of the youth."