Court says Quebec failed its duty to consult Mitchikanibikok Inik First Nation over mining claims

The Quebec government failed in its constitutional duty to consult First Nations when granting mining claims on the territory of the Mitchikanibikok Inik First Nation, according to a recent Superior Court of Quebec ruling.

In an Oct. 18 decision, Justice Chantal Masse ruled Quebec was obliged to consult and accommodate the First Nation on both existing and new mining claims.

"I didn't expect it to go that far but again, we're very happy with the decision," said Chief Casey Ratt.

Mitchikanibikok Inik First Nation, also known as the Algonquins of Barriere Lake, is located in the middle of La Vérendrye wildlife reserve in Quebec's Abitibi-Témiscamingue region, about 300 kilometres northwest of Montreal.

In addition to a small reserve located near Rapid Lake, Que., the community's traditional territory spans over 10,000 square kilometres in and around La Vérendrye.  As of Jan. 23, there were 2,683 mining claims located in that territory. 

"We've always said no to mining," said Ratt.

"Any resource extraction is going to be just total destruction of our territory. There's a lot of lakes nearby, rivers that we use today. So that's our biggest fear, is poisoning our lakes and the wildlife."

The office of Ian Lafrenière, the Quebec minister responsible for relations with First Nations and Inuit, passed CBC News's request for comment to the ministry of Natural Resources and Forests. The ministry said it is currently evaluating Masse's ruling.

The Quebec justice ministry declined to comment on whether it plans to appeal.

'We couldn't be happier'

Quebec's Mining Act allows "free entry" for anyone to register a mineral claim. 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 Indigenous Peoples.

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.

In 2017, a mining company transferred 1,052 mining claims worth $8 million over to Société québécoise d'exploration minière (SOQUEM) — a government-controlled entity.

Two years later, represented by lawyers from the Centre québécois du droit de l'environnement (CQDE) and Ecojustice, the community filed an application for a judicial review arguing that Quebec failed to fulfil its duty to consult.

The case was heard in a Montreal courtroom in February 2024.

In her ruling, Masse found that there was a breach of the duty to consult going back to Aug. 22, 1991. The ruling declared that the Government of Quebec and the minister of Energy and Natural Resources have an obligation to consult and, if necessary, accommodate claims existing as of the date of the judgment and to Aug. 22, 1991.

Joshua Ginsberg, a lawyer at Ecojustice, said that's the further any court has gone in similar cases.

"The court was clear — even for existing claims that were obtained in violation of Quebec's duty to consult, they now have to go back and do that, and fix that, so we couldn't be happier with that ruling," he said.

"This is a historical remedy as well as a future one and that is really, really significant and is an important measure of justice for our client."

Quebec had argued 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.

In May, new requirements came into force. Certain impact-causing mining exploration work, such as the use of explosives or hydraulic machinery, are subject to a government authorization. Before issuing the authorization, the Ministry of Natural Resources and Forests must consult the Indigenous communities potentially impacted.