Corporate & Native Resource Update: January 2013

January 2013 Report: Corporate – Crown – Native – Resource Issues from the perspective of Resource Rulers: Fortune and Folly on Canada’s Road to Resources


Chief Theresa Spence / native legal winning streak: During her 45 day fast, natives won five high-level court rulings in BC, Yukon, Manitoba, Ottawa; they advanced to the Supreme Court of Canada on a key land title precedent in BC; they launched two direct legal challenges to the PMO’s resource development agenda respecting China trade and omnibus legislation; and they served notice on the uranium industry that it is not welcome in Quebec (Cree settlement lands). Canadians are witnessing the apex of the native legal winning streak in the resources sector as described in Resource Rulers. It presents a major ‘due diligence’ threat to the resources sector.


Native-side legal challenges have now reached new heights in challenging the PMO’s resource development agenda. With one action commenced to block the Canada/China Trade Agreement, and another to revoke the recent omnibus budget bill; both actions are ostensibly based on the crown’s constitutional duties owed to natives. Clearly this litigation double-whammy is intended to destabilize the PMO’s momentum for fast-tracking Canada’s resource potential and for accessing Asian markets. Since there are no precedents to guide these novel and conceptual legal challenges, their potential outcomes lay in the realm of conjecture.


Badge of the Supreme
Court of Canada

Supreme Court of Canada: The main event in this litigation tsunami is the Supreme Court of Canada’s recent acceptance of the Roger William (aboriginal title) appeal.

This Delgamuukw-test case ruling will now command the top court’s attention; and since the outcome is likely two years away (at a minimum) it’s safe to assume that there will be little progress at BC treaty tables in the interim. This continuing legal uncertainty does not bode well for pipeline proposals currently under review in BC.


James Bay Cree have served notice that they are unilaterally opposed to Strateco’s advanced exploration uranium project in the heart of Cree homelands. The litigation is shaping up as a David v Goliath contest over whether the Cree have a veto; as the first condition in the province’s environmental approval states ‘the proponent must first obtain the Cree’s consent. Since Strateco has just launched legal action to have this condition voided, it is presented below in its entirety:

1. Social acceptability: The issues associated with uranium mining are not run-of-the-mill. The proponent must continue taking steps to inform and reassure the population, particularly the Cree community of Mistissini, about its mineral exploration project and the consequences of future mining of the uranium deposit under study. The proponent must obtain the Crees’ consent, through the Mistissini Band Council, with regard to the project’s social acceptability, and must enter into a written agreement to that effect with the Band Council or another body designated by the Band Council. A copy of the agreement must be sent to the Provincial Administrator and to COMEX for information purposes before excavation of the ramp begins.


Kapyong Barracks: Canada has again appealed its (second) loss to Treaty 1 natives on the issue of crown consultation over the proposed divestiture of this prime parcel of urban real estate. In the first trial, the court chided the crown’s argument on discharging its duty to consult as one “which I cannot take seriously”. In the second trial, the court admonished the crown saying that the lack of crown consultation was “more egregious in the 2006 to 2007 period.”  Tellingly, that second ruling commenced thusly: “This litigation has an unhappy history”. Now with another appeal just filed by Canada, that intro likely understates the legal dynamics in play.


The author has a longstanding interest in this particular litigation since he was the federal Treaty Land Entitlement negotiator sent out by Ottawa in 1995-1996 to bring closure to the land quantum shortfalls in Treaty 1. The following audio interview describes that negotiation context in what was then the cauldron of native empowerment in Canada. This audio interview has now drawn over 400 listeners.


Ottawa’s litigation costs: Ministry of Aboriginal Affairs 2012-2013 main estimates allocate “$84.1 million for Litigation Support”.  Two questions emerge from this:

    1. Are the right results accruing to taxpayers?
    2. Will this expense not likely increase?


Bill Gallagher on CTV Question Period with Kevin Newman

CTV Question Period

CTV / Question Period appearance with host Kevin Newman:  Discussion of Idle No More / Chief Theresa Spence wherein I hold up to the camera the five recent native legal wins just during her fast; and representing the apex of the native legal winning streak and the rise of native empowerment.  

Watch the Interview


Native Stop Work Actions and Declarations:

Six Nations, January 25, 2013 – Native protests shut down 5 wind power sites on account of an eagle’s nest destruction: “We delivered a message today that when they (NextEra) cut down the eagle’s nest, it was a violation to us against Creation”. Hazel Hill, Haudenosaunee Development Institute – see photo. In Resource Rulers I profile the destruction of nests and the unforeseen consequences that flow from such folly in propelling the eco-activist legal winning streak:

Fort Severn, January 25, 2013 press release:

Today, the leadership in Fort Severn First Nation, Ontario’s most northerly and isolated community in Ontario, notified the provincial government that no more aerial and ground surveys of the resources in their traditional territories will be allowed. This moratorium is in effect immediately and will be reviewed again after the proposed February 28 meeting between First Nation leaders and the government in Ottawa …

Attached please find a letter to your Ministry demanding the immediate stop to the Aerial Geophysical Surveys on our traditional lands. We have not informed or contacted Goldak and expect you to do so to stop the survey work immediately.

Yankton Sioux Reservation, South Dakota – January 23, 2013 press release:

Indigenous Nations from across the United States and Canada and their Allies will converge at the Yankton Sioux Reservation, South Dakota for a historical event, “Gathering to Protect the Sacred From the Tar Sands and Keystone XL.”  Those attending intend to sign an International Treaty to effectively block the Keystone XL TransCanada Pipeline. Representatives of Indigenous Nations and their Allies including farmers and ranchers, business and environmental leaders, leading treaty and environmental lawyers, news media, and other concerned citizens will gather for unprecedented unified action.


In Resource Rulers I profile how Canadian natives accessed the Obama administration (Day 1) in an effort to frustrate this critical piece of infrastructure.

James Bay Cree Jan 18 2013 – press release:

The Cree Nation’s position regarding uranium mining is widely shared in Quebec. The Cree Nation stands with over 300 municipalities who have stated their strong opposition to uranium mining. “An independent and broad study of the uranium industry is urgently required,” Grand Chief Coon Come stated. “We are confident that when Quebecers learn and consider the true facts about uranium mining and waste, they will join us in our moratorium stand. The Cree Nation will take all necessary steps to protect our health, our environment and our treaty rights, and intends to participate in the court proceedings commenced by Strateco.”

 Big Trout Lake, January 15 2013 – press release – Today in solidarity with Chief Spence and the day of action, Kitchenuhmaykoosib Inninuwug is saying to Ontario that our rights and laws come first. The era of Ontario jurisdiction (over our lands) is over.


Ring of Fireenvironmental review precedent from northern Canada


Yellowknife January 25 2013 – This environmental review approval pertains to the proposed Nico mine located just north of Yellowknife in the heart of the TliCho land claim settlement. The report recommends that the mine now proceed to the next level of regulatory approvals (ie land and water board) however the recent approval itself still requires Federal and Tli Cho ratification for that step to occur.

Since the Nico mine has many infrastructure and socio-cultural issues in common with the two mines proposed for the Ring of Fire (and the fact that it has now just passed muster before the Mackenzie Valley Environmental Review Board) means that it should be studied as a potential precedent for the Ring of Fire projects. It addresses  all the key issues: caribou, water, traditional knowledge, and impact and benefit agreements (the latter still in the proposal stage for the Nico project).


Here is the link to the Mackenzie Valley Environmental Review Board project approval (note pps 115 to 152 for list of measures / suggestions / commitments)

Download the Report


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