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 pausinga gold-mining company's construction of a temporary winter road leading to an exploration camp for a proposed open-pit mine in northwestern Ontario.

In documents filed in divisional court, the Ojibway First Nationsays the 18-kilometre access road is on traditional landand it wasn't consulted beforetheMinistry of Natural Resources and Forestry (MNRF) issued road construction permits toFirst Mining Gold Corporation (FMGC).

Cat Lake First Nation Chief Russell Wesley told CBCThunder Bayhis community had been working on an Anishinaabe-led environmental impact assessment of the Springpole Mine Project, with funding and participation from FMGC.

But the Ontario government's approval of the permits"caused conflict," he said.

"It looks like the First Nations are being combative when in factwe'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 exploration and related road construction in December 2022and it was renewed this fall.

Meanwhile, Cat Lake is contending with several other challenges, most recently the loss of its nursing station in a fire Saturday night. The building was the community'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 constructionas the First Nation seeks a judicial reviewof the MNRF'sdecision to authorize the work.

In issuing the injunction, Newtoncitedthe importance of consultation with Cat LakeFirst Nation and itsconcerns over possible"irreparable harm" fromcontinued construction.

Cat Lake's court efforts comeamid escalating tensions between First Nations in the region and the Ontario government overa surge of mining claims, particularly in theRing of Fire. Thecrescent-shaped, 5,000-square-kilometre area about 500 kilometres northeast of Thunder Bay issaid to be rich in metals needed for electric vehicle (EV) batteries.

But there are also concerns, including by many First Nations, that the provincial government's ambitions for the Ring of Fire could threaten their way of life.

A spokesperson for the MNRF confirmed to CBCthat permits were issued to FMGC on Feb. 9"for the construction of a temporary access corridor to the SpringpoleProject site."

Asked to respond to Cat Lake's concerns that the permits were issued without consultation, the spokesperson saidin an email, "As this matter is before the courts, we are not able to comment on anything further at this time."

The matter was next addressedin court by Justice Wendy Mathesonon Feb. 27. According to documents from the Superior Court of Justice, both parties are to report back to court byMarch 28regarding the proposed schedule for the application for judicial review.

Current winter road a danger, company CEOsays

FMGC calls its proposed SpringpoleMine one of the largest gold projects in Canada.

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

Dan Wilton,FMGC's chief executive officer, saidthe 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 important, temporary safety activities, First Mining continues 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 activities in their traditional territories."

A spokesperson for the company told CBC News they couldn't accommodatean interview by publication time.

First Nation cites lack of capacity to respond

The Springpoleproject requires bothprovincial andfederal environmental assessments (EAs). The First Nation says its own Anishinaabe-led environmental impact assessment is the first of its kind in Ontario.

Section 35 of Canada'sConstitution outlines the Crown's duty to consult First Nations on land development 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 government's EAs and the "barrage" of mining claimsthat have been sent to him for reviewsince before the COVID-19 pandemic.

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

In November, Wesley unveiled a symbolic button at the Chiefs of Ontario conference that depicted Lynx cats watching Premier Doug Ford riding a bulldozer. The artwork, designed by Indigenous artist Deanna Therriault, represents the community's opposition to mining without consent.

Wesley stressed, however, thatCat 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 flexibility within the government's environmental assessmentprocesses and more support for First Nations,including ways to allow them to carry outAnishinaabe-led environmental impact assessments.

"Most First Nations like mine are not opposed to development if we're allowed to participate and make informed decisions," hesaid. "Right now the way things are, we do not have that system that allows us to do that."

Incorporating Indigenous law

While the court injunction to pause the road's construction 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 saidone challenge the First Nation may encounter stems from a fundamental difference in how justice is approached.

He saidthe provincial court system uses Aboriginal law (how Indigenous people interact with the Canadian legal system) to promote reconciliation. He saidthat differs from traditional Indigenous law (which represents traditional systems of governance and law practised for generations by First Nations).

"Trying to find space, I suppose, is the biggest difficulty for traditional Indigenous laws in this country versus Aboriginal law, which is very much a colonial system of law that these First Nations have to navigate," Cox said.

Last summer, the federal government released theUnited 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 consult.

"The hope is perhaps that this declaration can be invoked to move the law towards a standard of free, prior and informed consent so I think that would go a long way to increasing First Nations' involvement in these types of projects," said Cox.

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

He said it may be helpful for First Nations to co-ordinate legal strategies when it comes to cases around development which is what the First Nations Land Defence 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 navigating a court system, which is at its heart an adversarial system, and it takes time for cases to work their way through the courts."