The Ring of Fire. It sounds like something out of a Tolkien novel. Welcome to Mordor Ontario, an area of 5,120 square kilometres in the James Bay watershed chock full of nickel, copper, zinc, gold, palladium and chromium—especially chromium (the element at the centre of Erin Brockovich’s crusade).*
The Lords of the Ring are some 30 exploration companies, such as KWG and Noront, who have staked over 31,000 claims. Cliffs Natural Resources from Ohio is the principle mining company. They’re after chromium, a vital ingredient in stainless steel. But others are coming in, including the Chinese state-owned Sinocan Resources Corp.
The Crown, in this realm, has two heads—Stephen Harper and Kathleen Wynne. Ottawa has responsibility for some environmental oversight through the Canadian Environmental Assessment Act, and Ontario collects royalties, or will, after the 10-year tax holiday it gives remote mines.
In fact, Ontario’s mining tax regime is so generous, compared to other provinces, it amounts to a subsidy. (Throw in the oil sands and the Crown gives more money to mining companies than it spends on First Nations’ health, education and housing.) The federal government’s recent omnibus bills have so severely crippled the Crown’s environmental regulatory muscle that you might as well hang a sign on the north that says “(Ring of) Fire Sale”.
For the Crown, the Ring is Ontario’s oil sands. Schedules are set to begin the first open pit mine in 2015. The urge is to do everything yesterday—punch in roads and railways to mine sites, dam the Attiwapiskat and the AlbanyRivers for hydroelectricity, build a smelter that will require over 300 megawatts of power. MountDoom, full steam ahead.
With all the hurry, the risk is not just environmental. It is that we will sell the Ring short—extracting the ore at a high cost, and selling the minerals at a lower price than we could get a decade from now.
The Ring straddles several major rivers in the north, and not one is protected by the new Navigable Waters Act. As the folks at FortChipewyan will tell you, if you’re downstream of a major extraction, you should worry.
The last line of common sense seems to be some 20 First Nations whose territories will be impacted one way or another.
They’re not opposed to the mines. As Chief Wesley of Constance Lake FN says, “We want development, but we also want to make sure that our lands, waters, wildlife, and our way of life are not destroyed in the process.”
The courts say so too, most explicitly in the Supreme Court’s 2004 decision in Haida-Taku. There it laid down the law—the Crown has a legal duty to consult First Nations on any proposal that might impact their rights and claims. And it must do so when it first becomes aware of plans for such projects. A flurry of court decisions after Haida-Taku has made the process pretty clear.
It’s not rocket science. If section 35 of the Constitution (which recognizes aboriginal and treaty rights) is to mean anything, those rights must not be diminished by projects, no matter how vital the Crown thinks they are to the nation.
Most treaties, either in their negotiation or in their wording, recognize the right of First Nations to hunt, fish and gather in their surrendered territories and Treaty 9 in north Ontario is no exception: “And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered.”
Of course there is this caveat: “…subject to such regulations as may from time to time be made by the government of the country, acting under the authority of His Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”
But that does not negate Treaty 9 First Nations’ aboriginal and treaty rights “to pursue their usual vocations.” And how can those Constitutional rights be protected if the land is so polluted as to render them meaningless?
So, full consultation is required. But according to news reports and my own phone conversations, the Crown is shirking its duty. As Chief Eli Moonias (Marten Falls) puts it, “Visits from junior ministerial representatives telling us what is happening instead of asking us how we want to participate is not consultation or accommodation.”
If you’ve ever watched a wind farm or a gravel pit set up half a kilometre from your backyard, you’ll appreciate his frustration.
If I were a mining company, I wouldn’t wait around for the Crown to figure out what it’s supposed to be doing or where its allegiances lie. In my experience, a wise corporation will sit down early with First Nations, help them retain the independent expertise they need to fully evaluate the impact of the project, and hammer out an environmental agreement in which the Bands have a real say in how the project unfolds.
That’s not the end of it, of course. Some sort of benefits agreement must follow, just as Ottawa must negotiate benefits for Canadians when buying say, a fighter plane (perhaps that’s a bad example), or allowing US and Chinese companies to play in the oil sands (hmm).
In any event, benefits must be more than just the jobs that will disappear when the mine is closes.
There are some success stories. Agreements with First Nations have been negotiated and accommodations made. But these are mostly with exploration companies who come into an area, drill a few holes and then leave. The rubber meets the road when mining corporations come knocking.
So far, it doesn’t look promising. The Matawa First Nations have launched a judicial review of the federal government’s refusal to hold a full panel review of the environmental impacts of so many mining projects in the Ring. And the Neskantaga FN has vowed to thwart any attempt to build a road across the AttawapiskatRiver.
*Chromium, especially in its hexavalent form (also known as chromium VI), is a highly toxic and carcinogenic substance. The US environmental Protection Agency has found that even a small amount in drinking water can cause cancer. There is clear evidence for this assertion in a study by the National Toxicology Program on the effects of chromium VI on mice and rats. It is water-soluble and frequently found as a by-product of mining—in leach-water, mine tailings, slag piles and the dry grinding and smelting of chromite ore.
The Canadian and Ontario limits for chromium in waste leachate is 5000 µg/L—the same as the US, but lower than other jurisdictions. It seems as though the chemical industry has been able to delay new guidelines in the US by somehow getting certain to cast doubt on the research the EPA has. Some of these scientists include those who testified chromium VI is not toxic in the suits against the company PG&E brought to court by Erin Brockovich.
© David McLaren, February 2013