Mitchikanibikok Inik First Nation challenges Quebec over its free entry mining regime

The Mitchikanibikok Inik First Nation, also known as the Algonquins of Barriere Lake, says Quebec's mining act breaches the province's duty to consult and is asking the Quebec Superior Court to deem it unconstitutional.

The community located in the middle of La Vérendrye wildlife reserve in Quebec's Abitibi-Témiscamingue region, about 300 kilometres northwest of Montreal, filed an application for a judicial review in December 2019. 

The case aims to ensure that the community is consulted before companies are granted mining claims in their traditional unceded territory.

This week, the First Nation's lawyers from Ecojustice and the Centre québécois du droit de l'environnement, as well as lawyers representing the attorney general of Quebec and the Société québécoise d'exploration minière (SOQUEM), argued their positions before Justice Chantal Masse at a hearing held in Montreal.

"The case is about what the act allows … and it allows a lot," Josh Ginsberg, director of Ecojustice Environmental Law Clinic, told the court.

Quebec's Mining Act allows "free entry" for anyone to register a mineral claim. Under the act, claim holders can undertake certain exploration activities such as rock scouring and scraping, and may remove up to 499 metric tonnes — or the weight of 333 Ford F-150 truckloads, as Ginsberg described — for bulk sampling.

"This is not nothing…. This is not pebbles," said Ginsberg.

In addition to a small reserve located near Rapid Lake, Que., the Mitchikanibikok Inik First Nation's traditional territory spans over 10,000 square kilometres in and around La Vérendrye wildlife reserve.

As of Jan. 23, there were 2,683 mining claims located in that territory. Ginsberg compared some of them to the size of the island of Laval, Que., adjacent to Montreal.

"It's like a sword of Damocles hanging over their head that at any time, the mining companies that have those rights could extract quite a lot of material from it without any consultation at all," he said in an interview with CBC Indigenous.

In an affidavit to the court, Chief Casey Ratt said the territory includes many sites of ecological, cultural and spiritual importance that are central to exercising their rights to their physical and cultural survival, such as hunting, trapping and fishing. 

Federal, provincial and territorial governments have a legal duty to consult and, when appropriate accommodate, Indigenous Peoples before decisions are made that may infringe on Aboriginal rights and title.

Ginsberg and the other lawyers on his team told the court that consultation needs to happen before any claims are registered, renewed or transferred.

"This whole process also needs consultation, arguably even more so because if there are issues with that area, then those issues should be raised at the earliest opportunity," he said.

"The community should have an opportunity to defend the rights and interest there. Right now, they don't get that."

In the Yukon and British Columbia, courts have found that the free entry mining system is inconsistent with the constitutional obligation of the Crown to consult First Nations.

Quebec's position

Quebec argues that claims granted under its Mining Act have no detrimental impact on the future exercise of the territorial rights claimed by the Mitchikanibikok Inik First Nation.

According to court documents, exploration work carried out in the territory between 2008 and 2020 amounted to 324 samples that never exceeded three kilograms of mineral substances, scattered on 90 plots of land. Since 2015, more than 80 per cent of the claims have not been the subject of any exploration work.

"The real issue is not so much the acquisition of the right to explore which occurs with each registration and renewal of claim, but the effective exercise of this right and even then, only when this effective exercise risks causing a detrimental effect more than negligible to the future exercise of the right claimed," stated documents in French, filed to the court.

"Thus, it would be in the presence of a concrete project that the consultation would be undertaken and not at the time of registration or renewal of a claim."

That is the approach the province is taking with new regulations that come into force May 6. Certain impact-causing mining exploration work, such as the use of explosives or hydraulic machinery, would be subject to a government authorization. Before issuing the authorization, the Ministry of Natural Resources and Forests would consult the Indigenous communities potentially impacted.

The department declined to comment as the case is before the courts. 

Justice Masse is expected to render a decision in the next few months.