Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams. Over the summer, we're bringing you some of the highlights of our 2024-25 season, which wrapped up in mid-May.
Speaker: We will be back with our brand new fall season in September. Our first live radio broadcast will be on September 20th on Vancouver Cooperative Radio, CFRO 100.5 FM and streaming live at co-opradio.org.
Speaker: Podcasts of interviews from that first show will be posted the following week. On the podcast today, Lorraine Chisholm talks with lawyer Joshua Ginsberg about a legal victory for the MI First Nation in Quebec requiring government consultation when mining claims are made on its territory.
Speaker: For years, the Michigan Ibbicock Inic First Nation has fought to keep mining off their territory. In an important ruling, the Superior Court of Quebec has recognized that the Quebec government failed for decades in its constitutional duty to consult the Michigan Ibbicock Inic First Nation, also known as the Angonquins of Barrier Lake, when mining claims were granted on its territory.
Speaker: Lawyers from Ecojustice and the Centre Québécois du droit du environnement argued that the Quebec Mining Act violated the Constitution and they won. Joshua Ginsberg is a lawyer for Ecojustice who represented the Michikanibikakini First Nation in this case, and he joins me now. Hello, Josh. Thanks so much for for being here today.
Speaker: Hi, Lorraine. It's a pleasure. Set the stage for us. What is free entry mining and how did it threaten this First Nations territories? So free entry mining is basically a gold rush law. It really is a vestige from that time where the imperative was rush onto the land as quickly as possible, grab all of the minerals you can, and don't worry about who happens to be living there or whose ancestral territory it may be.
Speaker: So it's this antiquated system where all you have to do is go onto the territory, say this area is mine. You used to have to drive a stake into the land in order to claim it.
Speaker: Now it's even easier than that. You could simply go online to a government website, choose the territory over which you want to claim mining rights, exploration rights, and it's yours.
Speaker: And once you've done that, you can enter onto the land at will and perform exploration activities where that allow you to remove quite a substantial amount of material from the area, set up temporary camps, ah use pretty heavy equipment, all without any consultation or even notice for that matter to the First Nation whose territory it is.
Speaker: That's what we were challenging. Well, tell us a little about unceded territories involved in the lawsuit and why the Michigan Ipikok Unique First Nation has been opposed to mining there.
Speaker: So the Michikambe Kakenik are an Algonquin nation that have lived in this area. It's about three hours drive north of Ottawa. Quebec would say the territory is within a reserve phonique, an area for reserved for hunting. But of course, that reserve phonique is in fact within the MI's territory. I'll just say MI from now on.
Speaker: That is one of many things that has been imposed on their ancestral territory for many years. Michikanebikak inik means people of the stone weir.
Speaker: That refers to a very unique method of fishing that this community traditionally uses and involves laying stones across waterways and trapping fish ah in those structures.
Speaker: But they have not been able to avail themselves of that traditional technique for many, many years because in the late 19th, early 20th century, is Quebec flooded their entire territory to create reservoirs for hydroelectric power and other uses.
Speaker: So that was the one of the earliest impacts, colonial impacts, upon this territory. That was followed by the granting of forestry rights, cutting timber in this and this territory, disrupting the MI's activities, and allowing hunting rights for people to come in and take the moose that the MI need to survive, that they rely on for their physical and spiritual sustenance.
Speaker: So they fought those impacts for many years. And then on top of that, they had to deal with this free entry mining, which a few years ago came to a bit of a head when a mining company ah registered claims amounting to a swath the size of, we say, the island of Laval, if you know that place north of Montreal, that cuts directly across their territory, leading to a lot of uncertainty whether or not, on top of all the impacts they were already experiencing, they would be able to continue their way of life.
Speaker: No notice, no consultation, nothing. And that's when the community decided it needed to take legal action. Now, I understand 2017 that the Quebec government outright rejected the mining company Copper One's deforestation permits, and the MI First Nations went to court again in 2020.
Speaker: What triggered that move? Yes, that was a complicated saga because you're right when you say it involved forestry permits. The only way that the nation ever gets to know that someone has claimed their ancestral territory, this by the way is unceded territory. They claim it as an area over which they they seek aboriginal titles. So they want to develop it and use it for their own purposes.
Speaker: But the only way they get notice that these claims that interrupt those plans actually occur is if a mining company needs to cut down trees. That triggers a process whereby the company needs to apply for a permit, etc. And then they get notification.
Speaker: Then they realized there was this huge mining claim over the territory. Forestry really wasn't the big issue. It was the mining claim that underlies it. And so they opposed it physically. They set up camps in the area where this activity would occur.
Speaker: ah They protested on the highways. And they really made their concerns known. That was necessary, of course, because there was no opportunity for discussion. There wasn't even notice before that. So they had no choice but to engage in those kind of direct actions.
Speaker: And as a result of that, Quebec put those permits on pause. And that infuriated the mining company, which sued Quebec. So originally... We were hired to represent the First Nation in actually defending Quebec's pause on the permits.
Speaker: And the way that ended was that Quebec decided to pay off this mining company to leave their claims. And those claims reverted to ah the state, a crown corporation, as we would call it in in this part of the country, which now owns the claims.
Speaker: But of course, that was no comfort at all to the MI, who still faced the prospect of these claims being worked, developed, again, without any consultation or notice.
Speaker: In fact, this state mining company has the explicit mandate to find people to work these claims. So if anything, after that, they were even more worried. And that's when they gave us the instructions to launch the constitutional challenge that we brought and ultimately won.
Speaker: Tell us about the constitutional duty to consult and how does the Quebec Mining Act disregard or violate this duty? The duty to consult is rooted in what's called the honor of the crown.
Speaker: And that is the duty of every government in Canada to deal honorably and have full regard and participation. And now we would say after UNDRIP has passed, that includes the consent of Indigenous peoples over the activities that are going to impact them, their territories, their way of life.
Speaker: It's as close as we get in law, in constitutional law, to ah really a sacred obligation of the crown, which having either made treaty with indigenous people or simply appropriated their land against their will, have at the very least the duty to ensure that their interests are fully taken into account and what's more accommodated when they make decisions having to do with that territory.
Speaker: It's quite literally the least the crown can do given the history of colonialism in this country. to deal fairly with indigenous nations. And so that means when there is even the possibility of an impact, there has to be a meaningful dialogue between the Crown and indigenous peoples to understand what those impacts may be and to accommodate the needs of the First Nation.
Speaker: And of course, that is what the Quebec Mining Act with its free entry apparatus systematically denied for many, many years. So Josh, what did the Superior Court of Quebec ruling of October 18th say, and and what what must happen as a result?
Speaker: Well, the judge made a very sweeping and we hope very impactful ruling, which first and foremost declared clearly that Quebec has for many years been acting unconstitutionally by allowing this free entry system to persist by giving away claims with no notice or consultation whatsoever, and then allowing all of this exploration activity to take place.
Speaker: That was declared clearly, the court, Justice Masse declared clearly, that was a constitutional violation. And she wound the clock back to 1991, which is on the record, the first time she found that the MI had communicated and asserted the rights and title to the crown. Of course, the claim goes well before that, but before her, Justice Mapps was able to say, at least since 1991, Quebec has been breaking the law, breaching the constitution by acting in this way.
Speaker: And so the consequences of that breach are that Quebec must now consult before issuing any mining claims, which means they have to fundamentally change the free entry nature of the system.
Speaker: It will no longer be acceptable to engage in click to claim, to go on the internet, grab those rights. They're going to have to implement a system for consultation and accommodation. And that goes not just for future claims, but for all claims since 1991.
Speaker: nineteen ninety one They have to go back in time and correct the historical wrong. And that is ah really significant and quite unique outcome of this case.
Speaker: I'm very impressed by the significance of it of the ruling and just a really positive thing. But this ruling's focused on mining in Quebec on unceded territory.
Speaker: Do you hope it may contribute to a future of meaningful recognition of of First Nations rights in a broader sense? i think Absolutely, it has potential to do that, and I certainly hope it will.
Speaker: ah you know As I started off by saying, all of this is rooted in so in a very important principle. This is not just some technical or bureaucratic exercise. This is about the Crown discharging its most fundamental obligation to Indigenous people in Canada to recognize their rights to, at the very least, consult and accommodate them.
Speaker: The Michikanabekokinik, as I've said, have never ceded title or rights in their territory. They hope one day to assert those rights in court.
Speaker: This decision is going to be a very important precedent establishing the long chain of events that have built this claim, supported that claim,
Speaker: And of course, now that these claims will be released from the territory, what it means is that the Mishkanabra can equal for the first time in in the colonial history, will be able to start planning for a future where they are sovereign.
Speaker: And, you know, that is something that... i'm i'm I'm proud to say will be a a significant impact. Of course, like other crown governments, it would be great if Quebec would simply recognize title rather than making the First Nation fight about it in court for many decades, spending resources that they don't have.
Speaker: But this will at least make that fight easier. Well, huge congratulations to you, Joshua, and your colleagues and the MI in this giant step forward.
Speaker: Thank you very much. you know I certainly couldn't be more pleased with the outcome and ah certainly view it as a measure of justice for a community that's been too long denied it.
Speaker: Thanks so much. I've been speaking with Joshua Ginsberg. He is a lawyer for Ecojustice. You've been listening to the Red Eye Podcast, produced by an independent media collective based in Vancouver.
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Speaker: To keep up with the show, you can subscribe to Red Eye wherever you listen to your podcasts. And you can follow us on Blue Sky at Red Eye Radio. I'm Jane Williams.
Speaker: Thanks for listening.
