Attawapiskat wins the case, Juno keeps the permits

An Ontario Superior Court of Justice said the provincial government fell short of carrying out its duty to consult and accommodate with Attawapiskat First Nation in granting permits to a junior mining exploration company operating in the Ring of Fire.

But a series of misunderstandings and inadequate communication that occurred in 2020 were not serious enough for the court to rule in favour of the First Nation's request to quash two permits issued to Juno Corp.

The court rendered its decision on Feb. 24, five months after a two-day hearing in Toronto last fall.

Attawapiskat was awarded court costs.

"On a practical level, there is blame on all sides," was how a panel of three judges summed up the lack of communication between Juno, the Ministry of Energy, Northern Development and Mines, and Attawapiskat that led the matter to court.

In the big picture, it remains to be seen if this decision will have any impact on potential future mining in the Ring of Fire, but it may plug some holes in how the ministry goes about its business in its consultation process with First Nations. 

The provincial government is constitutionally required to consult with First Nations on mining-related exploration activity taking place on treaty lands and traditional territories, and must not delegate that duty to industry.  

But it seems the opposite occurred in a series of missteps and a cone of silence that followed in 2020.

In a January 2020, Juno applied to the Ministry of Energy, Northern Development and Mines for two exploration permits to conduct drilling at two sites in the Ring of Fire. One project site is 240 kilometres west of Attawapiskat, while the other is 265 kilometres west of the community. 

After submitting their applications, Juno president Jacob McKinnon emailed Attawapiskat, a potentially impacted community, to introduce themselves and appraise them of the upcoming exploration activity. 

The First Nation responded to Juno that the community's policy was not to consent to development or exploration within its territory because of an issue with the operators of the now-closed Victor diamond mine. 

But nonetheless, the First Nation requested funding to do technical studies to determine the impact of the exploration activity.

In court, the First Nation maintained that the exploration project would have a "detrimental impact" on the community's rights and its way of life, that mining in the Ring of Fire would cause "severe and permanent adverse effects" to the environment and their culture, and that drilling is "physically invasive and disruptive." 

The ministry also contacted the First Nation, sending them Juno's application, asking them to identify any areas of concern to their treaty rights by mid-March.

The community responded it needed more time to obtain legal advice. 

The ministry placed a temporary hold on Juno's application until July 24 to give Attawapiskat adequate time. 

But the government started the confusion in the course of its dialogue with Attawapiskat by sending over the wrong information to the First Nation, effectively turning over its duty to consult to the junior mining company. 

Based on this, lawyers for Attawapiskat contacted Juno in April offering to negotiate an exploration deal, attaching a draft agreement. 

But the company did not respond to Attawapiskat despite six email messages sent to Juno. The company did not advise the government it had received this proposal.

Attawapiskat ultimately took this silence from Juno as an "affront to reconciliation," according to court documents.

The court said the ministry was left in the dark until July when Juno sent an email to the ministry asking for confirmation of consultation steps taken with Attawapiskat.

In early August, the ministry contacted Attawapiskat that it was preparing to remove the hold on the permit application by Sept. 6 and sought comments from the community by Aug. 22. 

Attawapiskat responded it was not prepared to hold community meetings and didn't have the funding to conduct an archaeological assessment and traditional land use study in the area of the exploration.

The First Nation expressed concerns about the "cumulative effects" of exploration activity on a watershed in the region

A local family, the government was advised, used the area where Juno was exploring, for traditional harvest activities, including trapping, but no specific information was provided to the ministry on the current use of the area by the family.

In early September, the ministry responded that these technical research studies weren't required. In the eyes of the ministry, early stage of exploration has "low to moderate potential for impacts on the ground." The ministry assessed this level of exploration activity would not have any long-term effects on the local environment, the watershed or even downstream. 

The province also requested more information on the timing of the harvesting activities by this family, giving a deadline of Sept. 8.

Attawapiskat took issue with the ministry's decision and again requested funding to do the studies. On Sept. 8, the ministry issued the permits to Juno, concluding that Attawapiskat's concerns were only "general in nature."

In court, the company argued that its drilling program would no take longer than five weeks, the diameter of the drill holes are no bigger than that of "soda can," that this particular area is not habitated and difficult to access, and that this activity would have limited impact on Attawapiskat's territory of 100,000 square kilometres, bigger than the size of New Brunswick. 

The court was satisfied with Ontario's decision to refuse providing tens of thousands of dollars in funding to Attawapiskat to do these technical studies. There was no basis to conclude that an archaeological study needed to be done. The sites are isolated, the exploration activity was only temporary, there is a requirement to clean up once the work is done, and there was no information provided on any harvesting activity in the area. 

But the court took notice that, aside from an initial flurry of emails back and forth between the government and the First Nation in January and February of 2020, "no other effective communication took place until August." Five months went by until the ministry imposed tight time constraints on the community.

Though the ministry was in the dark about the First Nation's frustration with the silence Juno to acknowledge its attempts at dialogue, when it came to the government's attention in July of 2020, the court said it "needed to do more."

"If just a little more care and sensitivity had been taken, things could well have been different," the court said in its ruling. "But in the result, the consultation process that was followed here was corrosive of reconciliation rather than advancing it."

Juno's MacKinnon testified they did not communicate with Attawapiskat because the duty to consult was not delegated to them and "because an unidentified ministry employee told Juno not to communicate with Attawapiskat."

The court said Juno did not keep the government fully apprised of the overtures received from Attawapiskat to start a dialogue, and did not respond to the First Nation that it was the government's duty to consult, not the company's.

The court pointed that although the province has a right to authorize mineral exploration on Crown lands, the ministry must recognize that communities like Attawapiskat have an ongoing interest to know what activity will be taking place "in its backyard," based on treaty rights.

The court said providing advance notice of entry to the First Nation on the details and timing of exploration work on the land is a reasonable accommodation that was not a condition of the ministry-issued permits at the time. This would be respectful of treaty rights and enable the First Nation to monitor the activity if it wishes.

The court subsequently learned at the hearing that Juno will be providing "advance notice of entry" when it goes out on the land.