Ontario court quashes gold mining permit over lack of meaningful consultation with First Nation

A ruling issued Monday by the Ontario Superior Court quashing a gold exploration permit should send a message to the new Doug Ford government that it can't "bulldoze" its way into the mineral-rich Ring of Fire development, says the chief of Eabametoong First Nation.

The Ontario Superior Court said in the ruling that the Ministry of Northern Development and Mines, under the previous Liberal administration, failed to properly consult with Eabametoong First Nation before it granted a gold mining permit to Landore Resources Canada, a subsidiary of U.K.-based Landore Resources Ltd.

The court found that the ministry "changed course without any explanation" to the First Nation and issued the permit to ensure Landore had it in hand for talks on a potential deal with gold mining behemoth Barrick Gold Corporation.

"The ministry's conduct cannot reasonably be considered to be the type of conduct that would promote reconciliation between the Crown and Indigenous Peoples," said the ruling, issued by Justice Frank Marrocco, Justice Harriet Sachs and Justice C.J. Horkins.

"That requires managing the consultation process in a way that fosters trust as opposed to misunderstanding and betrayal."

The court ruled that Landore's permit application be sent back to the ministry "pending completion of adequate consultation with Eabametoong."

Eabametoong First Nation sits about 350 km northeast of Thunder Bay, Ont.

Need for dialogue 

Eabametoong First Nation Chief Elizabeth Atlookan said the ruling makes clear the Ontario government needs to change the way it deals with First Nations on resource development and consultation.

"I hope it sends the right message. I don't know how [Ford] will receive it," said Atlookan.

"I am really hoping there will be a different tone than bulldozing his way. I don't believe that will work. I think a very honest and open dialogue with the First Nations in the north is very important."

Ford said during the Ontario election campaign that he wanted to get development started in the Ring of Fire and he would "hop on that bulldozer myself" to start building roads.

The Ring of Fire area sits in the province's James Bay lowlands about 575 km north of Thunder Bay.

Earlier this month the Matawa Chiefs Council, which is made up of nine First Nations including Eabametoong, sent a letter to Ford requesting a meeting to discuss "a meaningful, reasonable and a true partnership approach" to resource development in the region.

The nine First Nations signed a regional framework agreement with the previous Kathleen Wynne government on the proposed development.

The Ontario government did not return a request for comment on the letter last week. It also did not respond to requests for comment Tuesday on the court decision.

Landore's lawyer Jeff Cowan, a partner with Toronto law firm WeirFoulds, said the company was reviewing the decision and had no comment at this time.

No records kept of meeting

The court found that while Eabametoong did what it could to make itself available for meetings and raise its concerns —despite facing a community crisis and an election — the province and the company exerted little effort to ensure the First Nation was heard and involved.

The court ruling said Landore kept no records from a July 2014 meeting in Eabametoong where the membership raised concerns about gold exploration in an area which sits about 40 km from the community and is used heavily by seven families from two of the community's 12 clans.

Eabametoong also wrote the ministry in January 2014 expressing its worry exploration would have a negative impact on the area, which is used for snaring rabbits, trapping beaver and mink, hunting geese and moose and fishing for pickerel.

The ministry did not reply until March 4, 2016, when it sent the First Nation a list of conditions "apparently designed to meet those concerns," said the ruling.

When Eabametoong responded saying they didn't, the ministry did not respond and issued the permit with the conditions unchanged.

"There was no real and genuine attempt by the ministry or Landore to listen to Eabametoong's concerns," said the ruling.

Potential Barrick deal

Instead, it was Landore's potential deal with Barrick Gold — which did not materialize — that drove the ministry's decision to issue the permit, according to the ruling.

A "private" meeting on Jan. 19, 2016, between the ministry and Landore set the stage for the decision to issue the permit.

Landore told ministry officials about the potential Barrick deal. The next day the ministry told the company it would inform Eabametoong the permit would be issued soon.

On Feb. 10, 2016, Landore wrote the ministry "reiterating its 'urgent' need for the permit," said the ruling.

"The day after the letter from Landore ... the ministry wrote to Eabametoong advising them of its intention to make a decision on the permit within the next 10 days," said the ruling.