tansi ninôtemik,
The duty to consult and accommodate is a constitutional duty that the Canadian government is obligated to do for Indigenous nations when the conduct might adversely affect potential or established Aboriginal or treaty rights.[1] “The duty stems from the Honour of the Crown and is derived from section 35 of Canada's Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.”[2] The duty to consult looks different in each activity the government wants to participate in. Whichever form the duty to consult takes, it is mandatory that it takes place in a meaningful way.
The Superior Court of Quebec ruled on October 18, 2024, that the Government of Quebec failed in its duty to consult the Mitchikanibikok Inik First Nation (MIFN) or also known as the Algonquins of Barriere Lake, when granting mining claims in their territory.[3] Mining claims are temporary titles allowing for mining exploration. Justice Chantal Masse ruled that Quebec had a duty to consult and accommodate the MIFN on both existing and new mining claims.[4]
Chief Casey Ratt made a statement that the MIFN has “always said no to mining”.[5] This statement was previously made clear in a 2021 sworn declaration by Chief Ratt:
“The Mitchikanibikok Inik First Nation currently opposes any mining activities (including claiming, exploring, and extraction) within the traditional territory of our people, because we have not been shown the advance notice, consultation, and accommodation that is needed to ensure our ongoing ability to enjoy the rights we have exercised since time immemorial, to save our land from despoliation before our title to it is recognized.”[6]
The MIFN has clear negative sentiments toward mining exploration because “any resource extraction is going to be just total destruction of [their] territory. There's a lot of lakes nearby, rivers that [they] use today. So that's [their] biggest fear, is poisoning [their] lakes and the wildlife."[7]
A “free entry” mining system allows “for anyone to claim and explore land, including Indigenous land. This framework allows mining claims to be registered on Indigenous communities’ territories without first consulting and accommodating them, or even notifying them.”[8] Although other provinces do not use the free entry mining system because it does not align with the Crown’s duty to consult or accommodate; Quebec’s Mining Act still allows for free entry.[9]
Justice Masse found breaches of the duty to consult as far back as August 22, 1991.[10] Quebec will now have to fix any existing claims that were obtained without prior consultation.
"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."[11]
Our previous blog discussed the Wet’suwet’en and their resistance to the Canadian government harming their territory.[12] In today’s blog, we discussed the MIFN and their fight to stop the Quebec government from extracting resources without consultation. This theme of Indigenous nations having to protect their land from resource extraction by the Canadian government is all too common. If the Canadian government continues to treat Indigenous peoples and their land as they are, Indigenous nations will always do what they can to resist and protect their territory.
With this new ruling by Justice Masse, do you think it will influence other Courts to go back further when looking at failed duty to consults by Canada?
ekosi,
The ReconciliACTION Team
Citations
[1] Government of Canada, “Government of Canada and the duty to consult” (2024) online: <rcaanc-cirnac.gc.ca/eng/1331832510888/1609421255810>.
[2] Ibid.
[3] Ka’nhehsí:io Deer, “Court says Quebec failed its duty to consult Mitchikanibikok Inik First Nation over mining claims” CBC News (23 October 2024), online: <cbc.ca/news/indigenous/quebec-duty-consult-mining-court-1.7360555>.
[4] Ibid.
[5] Ibid.
[6] Mitchikanibikok Inik First Nation (Algonquins of Barriere Lake) c Procureur général du Québec, 2021 CanLII 4752 at para 43 (QCCS) [MIFC].
[7] Supra note 3.
[8] Centre québéois du droit de l`environnement, “First Nation challenges Quebec’s free entry mining regime in court” (15 February 2024) online: <cqde.org/en/news/first-nation-challenges-quebecs-free-entry-mining-regime-court/>.
[9] Supra note 3.
[10] Ibid.
[11] Ibid.
[12] ReconciliACTION YEG, “Movie Moment: The YINTAH Documentary is a Powerful Call to Action” (21 October 2024) online: <reconciliactionyeg.ca/post/movie-moment-the-yintah-documentary-is-a-powerful-call-to-action>.
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