Demanding a proper say, Cat Lake First Nation's injunction pauses First Mining Gold's road work for project

Cat Lake First Nation has been granted an injunction pausing a gold-mining com‐ pany's construction of a temporary winter road leading to an exploration camp for a proposed openpit mine in northwestern Ontario.

In documents filed in divi‐ sional court, the Ojibway First Nation says the 18-kilometre access road is on traditional land and it wasn't consulted before the Ministry of Natur‐ al Resources and Forestry (MNRF) issued road construc‐ tion permits to First Mining Gold Corporation (FMGC).

Cat Lake First Nation Chief Russell Wesley told CBC Thunder Bay his community had been working on an An‐ ishinaabe-led environmental impact assessment of the Springpole Mine Project, with funding and participation from FMGC.

But the Ontario govern‐ ment's approval of the per‐ mits "caused conflict," he said.

"It looks like the First Na‐ tions are being combative when in fact we're not," Wesley said. "If the province hadn't issued the permits, we would still be going through this process."

The northwestern Ontario community, home to about 650 people, is 440 kilometres northwest of Thunder Bay along the Albany River. Its band council declared a moratorium on mining explo‐ ration and related road con‐ struction in December 2022 and it was renewed this fall.

Meanwhile, Cat Lake is contending with several oth‐ er challenges, most recently the loss of its nursing station in a fire Saturday night. The building was the communi‐ ty's central access point to health-care services.

Why the injunction was granted

Cat Lake filed the injunction in court on Feb. 21.

Two days later, Regional Senior Justice W.D. Newton issued an interim order for the mining company to pause road construction as the First Nation seeks a judi‐ cial review of the MNRF's de‐ cision to authorize the work. Newton is expected to hear the motion this week.

In issuing the injunction, Newton cited the importance of consultation with Cat Lake First Nation and its concerns over possible "irreparable harm" from continued con‐ struction.

Cat Lake's court efforts come amid escalating ten‐ sions between First Nations in the region and the Ontario government over a surge of mining claims, particularly in the Ring of Fire. The crescentshaped, 5,000-square-kilo‐ metre area about 500 kilo‐ metres northeast of Thunder Bay is said to be rich in met‐ als needed for electric vehicle (EV) batteries.

But there are also con‐ cerns, including by many First Nations, that the provincial government's ambitions for the Ring of Fire could threat‐ en their way of life.

A spokesperson for the MNRF confirmed to CBC that permits were issued to FMGC on Feb. 9 "for the construc‐ tion of a temporary access corridor to the Springpole Project site."

Asked to respond to Cat Lake's concerns that the per‐ mits were issued without consultation, the spokesper‐ son said in an email, "As this matter is before the courts, we are not able to comment on anything further at this time."

Current winter road a danger, company CEO says

FMGC calls its proposed Springpole Mine one of the largest gold projects in Cana‐ da.

The company has been operating its exploration camp since 2015. A feasibility study for the project is un‐ derway and a draft environ‐ mental impact assessment was published in June 2022.

Dan Wilton, FMGC's chief executive officer, said the warm winter has created a dangerous situation for workers using the existing winter road.

"This temporary winter road will allow First Mining to keep its focus on operating in a safe and environmentally responsible manner," Wilton said in a news release on Feb. 26.

"While it is disappointing that Cat Lake First Nation has chosen to oppose these im‐ portant, temporary safety ac‐ tivities, First Mining contin‐ ues to listen to the concerns of Indigenous communities and is always willing to meet with community leaders to discuss these and any other matters regarding our activi‐ ties in their traditional terri‐ tories."

A spokesperson for the company told CBC News they couldn't accommodate an in‐ terview by publication time.

First Nation cites lack of capacity to respond

The Springpole project re‐ quires both provincial and federal environmental as‐ sessments (EAs). The First Nation says its own Anishi‐ naabe-led environmental im‐ pact assessment is the first of its kind in Ontario.

Section 35 of Canada's Constitution outlines the Crown's duty to consult First Nations on land develop‐ ment projects. In practice, the onus falls on industry and First Nations rather than the government, said Wesley.

He said Cat Lake lacks the capacity to deal with the gov‐ ernment's EAs and the "bar‐ rage" of mining claims that have been sent to him for re‐ view since before the COVID19 pandemic.

"When you have a system like that, it's very rigid. The timeline is rigid - there's real‐ ly no deviation from that."

In November, Wesley un‐ veiled a symbolic button at the Chiefs of Ontario confer‐ ence that depicted Lynx cats watchingPremier Doug Ford riding a bulldozer. The art‐ work, designed by Indige‐ nous artist Deanna Therri‐ ault, represents the commu‐ nity's opposition to mining without consent.

Wesley stressed, however, that Cat Lake's moratorium on mining was only put in place to give First Nation leadership time "to consult our people properly."

He is calling for more flex‐ ibility within the governmen‐ t's environmental assess‐ ment processes and more support for First Nations, in‐ cluding ways to allow them to carry out Anishinaabe-led environmental impact as‐ sessments.

"Most First Nations like mine are not opposed to de‐ velopment … if we're allowed to participate and make in‐ formed decisions," he said. "Right now the way things are, we do not have that sys‐ tem that allows us to do that."

Incorporating Indige‐ nous law

While the court injunction to pause the road's construc‐ tion is a win, lecturer Daniel Cox said, Cat Lake could face other challenges as the case moves through the courts.

Cox, who teaches at the Bora Laskin Faculty of Law in Thunder Bay, is a member of Fort William First Nation. He

said one challenge the First Nation may encounter stems from a fundamental differ‐ ence in how justice is ap‐ proached.

He said the provincial court system uses Aboriginal law (how Indigenous people interact with the Canadian le‐ gal system) to promote rec‐ onciliation. He said that dif‐ fers from traditional Indige‐ nous law (which represents traditional systems of gover‐ nance and law practised for generations by First Nations).

"Trying to find space, I suppose, is the biggest diffi‐ culty for traditional Indige‐ nous laws in this country ver‐ sus Aboriginal law, which is very much a colonial system of law that these First Na‐ tions have to navigate," Cox said.

Last summer, the federal government released the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan. A key part of the declaration is First Nations' rights to free, prior and informed consent, which sets a higher standard than the Crown's duty to con‐ sult.

"The hope is perhaps that this declaration can be in‐ voked to move the law to‐ wards a standard of free, pri‐ or and informed consent - so I think that would go a long way to increasing First Na‐ tions' involvement in these types of projects," said Cox.

"It's a work in progress. The jury is still out. It's a rela‐ tively new adoption of these principles, so we'll see."

He said it may be helpful for First Nations to co-ordi‐ nate legal strategies when it comes to cases around de‐ velopment - which is what theFirst Nations Land De‐ fence Alliance has achieved.

"It'll be up to these First Nations to try to assert these rights and argue for this type of change. But unfortunately, it's still a question of navigat‐ ing a court system, which is at its heart an adversarial system, and it takes time for cases to work their way through the courts."