Presentation to Steering Committee – Bill 173

My name is Jamie Michano, member of the Ojibways of the Pic River First Nation. We are a small Anishinabek community located on the north shore of Lake Superior, 300 kms east of Thunder Bay. A proactive community, our leadership undertook an extensive research project to better understand the territory our members historically occupied. The data collected as part of this project will be used as evidence in our Aboriginal Title claim currently before the court. Our traditional territory extends from the Aguasaubon River east to the Wabikoba Creek and from Lake Superior north to Highway 11.

The level of mineral exploration and mining activity within our traditional territory is quite extensive. Since our claim was filed, 1625 mining blocks have been licensed in our traditional territory, representing an allocation of over 240,000 hectares. Additionally, since 2001 there have been 13 long-term 21 year leases either issued or re-issued within our traditional territory. These leases account for the allocation of over 3900 hectares of land.

It is without question that Pic River First Nation is right in the active heart of mineral exploration activity. Without a means to legally involve ourselves in discussions with prospectors, exploration companies or large mining giants, we were forced to sit at the sidelines while these large mining companies extracted billions of dollars of resources from our territory with little or no benefit to the community. While some exploration companies made valiant efforts to engage Pic River First Nation in discussions regarding the exploratory work they were doing, others had no legal obligation to include Pic River First Nation leadership or members in discussion surrounding the exploring or mining they were doing in our backyard.

Following the SCC decisions in Haida(’04) & Taku River(’04) and Mikisew Cree(’05) we now see greater attempts by exploration and mining companies to engage Pic River First Nation in the consultative process yet we still face challenges when dealing with the Crown.

Our challenges with the concept of consultation were based solely on operation within draft frameworks, such as the province of Ontario’s Draft Guidelines for Ministries on Consultations with Aboriginal Peoples dated June 2006 or INAC’s Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult dated February 2008. With no clear guidelines to follow, Pic River First Nation leadership made the decision to develop and implement a framework which provided clarity on how the consultative process would unfold for future consultations with our First Nation. In October of 2008, leadership adopted the Pic River First Nation Consultation and Accommodation Law. This framework offered much needed clarification on how to properly and meaningfully consult with our community. Exploration and mining companies acknowledge and respect this framework and make every effort to work within the constructs of this document.

The 2007 discussion paper Toward Developing an Aboriginal Consultation Approach for Mineral Sector Activities states “the Ontario government want to work with Aboriginal communities, Aboriginal groups and industry representatives to develop a range of tailored consultation approaches that provide clarity and direction on when and how to consult with Aboriginal communities on mineral sector activities”. Further, the discussion paper is named as “one of the tools MNDM is using to seek comments, concerns and ideas to help (them) collaboratively develop Aboriginal consultation guidelines for mineral sector activities”.

The Pic River First Nation framework provides just what the Ontario government has been seeking since 2007. Yet in 2009, when Pic River First Nation has clear guidelines on their consultative process, the Ontario government and a number of her Ministries continually fail to acknowledge and respect our framework.

In the context of Bill 173, Pic River First Nation leadership provided clear direction from the moment the announcement was made that the archaic 163 year old mining act would be modernized. We wanted to be involved and fully engaged in this process. We were prepared to provide meaningful feedback, provided we were properly informed and that we were consulted on our terms.

The process that unfolded couldn’t be further from our initial expectation. Rushed from the start, our leadership expressed great concern with the unreasonable timelines with the public consultations related to this very important process. Presumably after considerable political pressure from First Nations across the province, there was a one-month extension on consultations with the First Nations. With a one-month extension still being unrealistic, the First Nations continued to request for more time to properly review and gather necessary technical expertise to provide meaningful feedback on this issue. The additional extension and subsequent funding provided to the Union of Ontario Indians to engage their communities in Mining Act consultations afforded a glimmer of hope that we would finally be able to gain the appropriate level of awareness of the previous mining act and then be able collect technical knowledge and legal understanding to offer meaningful feedback regarding changes to the revised mining act.

The Union of Ontario Indians, along with MNDM officials and their consultants visited 11 of 43 UOI communities during the month of January 2009. During these sessions, the First Nations were fed approximately 14 questions and were asked to respond to these questions. From my understanding there were very low turnout rates at each of the communities. At best, 400 community members attended the UOI sessions, which translates into about 0.01% of Union of Ontario Indians membership. Following these 11 sessions, both the MNDM and the UOI declare victory in that First Nations consultation on the modernization of the Mining Act was complete. I do not understand how meaningful and proper consultation occurs when 400 out of 43000 members have been spoon-fed 14 specific questions. Pic River First Nation was one of the participant community’s in the UOI sweep of consultation sessions. Clear expressions of concern were raised by community members regarding the undertaking of consultations by the regional body engaging its community’s in the processes, and in turn calling it meaningful consultation in the absence widespread community engagement and involvement.

Another area of personal concern with the revisions is the reference to Section 35 of the Canadian Constitution Act, 1982. Reference to Section 35 in the new mining act does little to protect First Nations Aboriginal and treaty rights. Section 35 rights are still undefined in law and more often than not, a determination of the asserted right is made at the Supreme Court of Canada and will be interpreted on a band by band basis. Moreover, First Nations who assert these rights are left with the burden to prove their assertion. To support the burden of proof then leads the First Nation to undertake extensive and expensive evidence of a historical and cultural relationship to the lands where rights are asserted.

While there are provisions to support Aboriginal values mapping and community land based planning initiatives referenced in the revisions, these initiatives are geared towards the Far North only. My concern is that without provisions for ALL First Nations in Ontario, we will continually be faced with disputes such as the Kitchenuhmaykoosib Inninuwug and the Ardoch incidents.

I was recently hired by my home community as their Lands and Resources Coordinator. My role is based solely on the positive relationships that we form, not only with third parties operation within our traditional territory, but also with both federal and provincial ministries and agencies. The revision to the 163 year old mining act is forward thinking. This is a perfect opportunity for Ontario to work WITH the First Nations towards a balanced approach to consultations on mining activity throughout Ontario. Failure to acknowledge the consultative frameworks that have been developed by First Nations who have a certain level of understanding of the consultation and accommodation process, there may be instances where disputes can still occur.

I appreciate the opportunity to voice my concerns.

• managing and tracking information and correspondence relating to any land related proposals, developments, or projects that are submitted to Pic River First Nation
• coordinate the analysis and assessment of incoming proposals in relation to their impacts on cultural, environmental and economic values of Pic River First Nation
• coordinate information sharing sessions and community meetings in relation to the incoming proposals
• build relationships with third parties and act as a primary liaison between Pic River First Nation Chief and Council and third parties
• oversee field work and site visits, including the coordination of monitoring programs
• act as a representative for Pic River First Nation on various land and forestry management planning teams
• develop and implement community consultation strategies and community engagement strategies to ensure meaningful feedback and input is solicited