THUNDER BAY – The legal team for the Neskantaga First Nation have communicated to the McGuinty Government through Minister of Northern Development and Mines, Rick Bartolucci over what the First Nation is saying is a lack of consultation.
“The Neskantaga, along with the other Matawa First Nations, is in litigation in respect to the Cliffs’ project, and the need for a full Joint Panel Review. Neskantaga has indicated to your Ministry and your officials a desire to negotiate a proper regional environmental assessment process that would harmonize Federal, provincial and First Nation reviews”.
“Further, your Ministry and the project proponent, Cliffs Natural Resources Inc. have been well aware that the proposed project and its related infrastructure will have significant adverse impacts on the Neskantaga lands, culture and aboriginal interests. Despite this knowledge, Ontario has proceeded with discussions with the proponent and other First Nations to the exclusion of Neskantaga. We are now advised that your Ministry has announced that Ontario intends to proceed with this project, and to provide funding to the proponent for infrastructure without having fulfilled the duty of consultation and many other First Nations directly affected”
The letter to the Minister continues, “In Rio Tinto Alcan v Carrier Sekani Tribal Council (SSC 2012 43), the Supreme Court of Canada confirmed “the duty to consult extends to the strategic, higher level decisions that may have an impact on Aboriginal claims and rights” and “is not confined to the government exercise of statutory powers”. In Kwikwetlern v BCUC (2009 BCCA 68) the BC Court of appeal found that the duty extends “at every stage of a Crown activity that has the potential to affect their Aboriginal interests” and applies to the choice of options well before statutory decisions have been applied for or made”.
The lawyers state, “It would appear that Ontario is already in breach of their legal duties toward Neskantaga. It will be difficult for you to reconcile this lack of prior consultation with decisions already made.”
Gregory J. Mcdade, QC states in this letter sent on behalf of his client, “We as that you confirm that no agreement in principle has been made, and that no choice in terms of infrastructure (the North-South road) has been made. My client respectfully requests that you meet on behalf of the Crown with Neskantaga, and expects that within 30 days your officials will have resolved these issues with them, or we will be seeking instructions to that further action”.