In a summer of raised stakes in the battle to safeguard Ontario's northern boreal forest, native and conservation groups are trumpeting a paradigm-shifting legal victory.
One month after members of the remote Kitchenuhmaykoosib Inninuwug First Nation descended on Queen's Park to protest attempts to drill for platinum on their traditional lands, Ontario Superior Court Judge Patrick Smith has suspended the mining operations of Platinex Inc. and castigated the provincial government for ignoring the rights of the KI community.
The parties have been ordered back to the negotiating table and must report back in five months on their progress.
In a decision handed down Friday, July 28, Smith says, "Platinex essentially decided to try to steamroll over the KI community by moving in a drilling crew without notice."
The judge also had sharp words for the province, which he says "has abdicated its responsibility and delegated its duty to consult to Platinex while, at the same time [it] was making several decisions about the environmental impact of Platinex's exploration programs, the granting of mining leases and lease extensions."
KI, a reserve of more than 1,500 members on Big Trout Lake, about 600 kilometres north of Thunder Bay, announced a development moratorium on its treaty lands in 2001. T
he band was reacting to a mineral exploration rush across the region and plans to push clear-cut logging into the northern half of Ontario's boreal forest.
Platinex launched a $10 billion lawsuit against the reserve and sought an injunction to keep protestors away from its operations after demonstrations by KI residents in February forced a stop to exploratory drilling.
Judge Smith ruled that granting Platinex the injunction would "send a message to other resource development companies that they can simply ignore aboriginal concerns."
Citing recent Supreme Court of Canada rulings that First Nations must be consulted on development of lands covered by treaties, Smith said negotiated settlements "must occur before any activity begins and not afterwards or at a stage where it is rendered meaningless."
"We're pleased the judge understood how important our land is to us and recognized our right to make our own laws," says KI band counsellor John Cutfeet.
Cutfeet is particularly pleased that Smith responded to Platinex's pleas that it risked bankruptcy if not permitted to resume operations by calling the company the "author of its own misfortune" and saying it was KI that truly faced irreparable harm "because it may lose land that is important from a cultural and spiritual perspective. No award of damages could possibly compensate KI for this loss."
Justin Duncan, a Sierra Legal Defence Fund staff lawyer, believes the ruling could have a strong bearing on industrial development conflicts involving many of the 44 other ongoing land claims across northern Ontario.
"This is a significant precedent. The judge set a lot of principles down," says Duncan.
While Ontario Minister of Northern Development and Mines Rick Bartolucci called the ruling a step forward in a press release on the weekend, and welcomed the opportunity to negotiate, he insisted that the ruling "does not impact the legitimacy of other mining claims in Ontario."
Queen's Park, however, also faces a lawsuit launched by KI last month challenging the constitutionality of the Ontario Mining Act, which grants prospectors "free entry" to stake claims almost anywhere in the province.
Anna Baggio, director of conservation land-use planning at the Wildlands League, says Smith's ruling may be the first chink in the armour of free entry.
"For the first time in Ontario, a community has actually halted, even if temporarily, mineral exploration in its territory," she says. "[The ruling's] saying that the free entry system is not working."
The Wildlands League is part of a coalition of native, conservation and human rights groups campaigning for comprehensive land-use planning and environmental protection in the northern boreal forest. "If we had this process in place, these types of conflicts would have been avoided," says Baggio.
Platinex, meanwhile, halted trading of its shares on the stock exchange earlier this week. NOW's calls for comment to the company's head office in Aurora were not returned.