High-stakes battle over mining rights

Century-old law giving prospectors right to drill on private land unites natives and non-natives
May 12, 2008 04:30 AM
Peter Gorrie
Environment Reporter

OMPAH, Ont.–Frank Morrison knew immediately what the red metal tag meant. He didn't understand why it was on his land.

It was a crisp, sunny morning in October 2006. Morrison, retired from the advertising industry, was cutting wood on the rolling, 40-hectare property, 100 kilometres north of Kingston, that he and his wife Gloria moved to six years ago.

The tag was attached to a tree that had been chopped to just over a metre high. A straight row of pink ribbons ran from it into the bush. Other trees had been crudely blazed.

All this meant that a prospector, without permission, had claimed the site for a potential mine.

Calls to the provincial Ministry of Northern Development and Mines confirmed that Oakville-based Frontenac Ventures Corp. had staked the claims – in fact, to 80 per cent of the Morrisons' property and, eventually, about 12,000 hectares in the area. The company was looking for uranium.

Under Ontario's century-old Mining Act, and across Canada and most of the world, all this is legal. In fact, secret staking is considered crucial to the industry.

"We found out very quickly that there is no help. The mining industry trumps everything," Morrison said recently in the couple's log home – partly finished and with construction at a standstill while the mine remains a threat.

The Morrisons are part of a gathering protest over mining rights that is uniting non-natives and Indians, and causing a major headache at Queen's Park.

The mining industry has long operated out of sight, and mind. Not any more: Soaring prices for uranium, platinum and other minerals have touched off a claims-staking rush across much of Ontario.

The race for resources has put the spotlight on the Act, which, under a system known as free entry, allows prospectors and mine developers almost unhindered access to public lands and much private property as well.

Indians say they're fighting for the right to control development on their traditional lands. The Morrisons and other non-natives are incensed that prospectors can arrive, unannounced, and dig for minerals under their feet.

The controversy has grown so high profile that Premier Dalton McGuinty promises to "modernize" the creaky law.

Much is at stake: Queen's Park is courting mining companies to boost the province's economy. Industry officials warn mining would die without free entry.

Prospectors depend on secrecy, said Neal Smitheman, lawyer for Frontenac Ventures. "They don't want to share information before staking ... It's easy to have your claim jumped."

On the other side, seven people are in jail for protesting mine developments, and more might join them next month.



Morrison contacted a local Indian group, the Ardoch Algonquin First Nation, whose land claim covers most of the proposed mining territory.

After months of research and phone calls, non-natives and Indians joined forces.

On last year's national aboriginal day of protest, the Algonquins set up a blockade camp at Frontenac's base, a few kilometres from the Morrisons' place, where exploratory drilling was to be done. A short-term event became a peaceful vigil that continued for months. Non-native supporters, who refer to themselves as settlers, brought food and supplies, and communicated the story to the rest of the province.

Meanwhile, at Frontenac's request, a Kingston judge issued an injunction against the protest. In October, several Algonquins and non-natives, including Morrison, were charged with violating the order.

The case went to court in February. While charges against the non-natives were withdrawn, Associate Chief Justice Douglas Cunningham told the Algonquins to submit to the injunction or go to jail.

All but one agreed. The exception was Bob Lovelace, 59, a former chief who teaches at Queen's University in Kingston.

"I am in a dilemma," he told the court. "I want to obey Canadian law, but Algonquin law instructs me that I must preserve Creation. I must follow Algonquin law."

"There can only be one law – the law of Canada as expressed in this court," Cunningham replied as he imposed a six-month jail term and a $25,000 fine.

That wasn't the end of it. For technical legal reasons, a second set of charges was laid later last fall against the same group. A June 2 hearing has been set.

The camp continued until February, when the court ordered opponents to stay at least 200 metres away. The OPP charged four non-natives: They, too, are to be in court next month.

One of the Algonquins who will again stand before Cunningham is Harold Perry, 78, an honorary chief who moves and speaks slowly after a couple of strokes and heart attacks. He didn't want to comply with the order last time but acquiesced for friends worried he'd die in jail. He'll respond differently if issued the same ultimatum next month, he said over tea and sandwiches in the rural lakeside home he built nearly 50 years ago in a village called Ompah, 100 kilometres southwest of Ottawa.

"There comes a point at my age when if you don't stand up for your rights, what are you living for?"

Around the same time Lovelace was jailed, up in Thunder Bay, six members of Kitchenuhmaykoosib Inninuwug, or KI, an Indian community in Ontario's far north, got six-month terms for protesting development of a platinum mine.

In Eastern Ontario, critics fear the health and environmental impacts of an open-pit uranium mine, particularly that radioactive waste would ruin water sources and that the project would kill the tourism and cottage economy. But the heart of the dispute is who determines where mines are built.

Staking raises different issues on private and public land.

Like the Morrisons, most private property holders own just the surface rights to their land. Prospectors can stake for minerals without permission. If exploratory drilling or other work is to be done, landowners can negotiate for compensation. But if they object, they can't simply say "No." They must take their case to the provincial Mining Commissioner to decide.

"When your land is staked, what it really means is that you really have no rights at all," Gloria Morrison said. The claim staking has destroyed the value of their property, she said, but, far more, the experience shattered a lifetime of certainties.

"You believe in democracy, freedom of speech and justice in the courts. Then you're faced with one assault after another. It's like the ground is pulled out from under you."

On public, or Crown, land, mining can go ahead as long as the province approves, and it usually does.

Reserves are off-limits to miners, but the Act is an issue when Indians claim additional territory, which usually means Crown land.

In 2004, the Supreme Court of Canada ruled, on a dispute in British Columbia, that Indians must be consulted before development occurs. Ontario's Liberal government says it concurs. But it and the courts interpret consultation as simply offering information and discussing how projects should proceed.

The Ardoch Algonquins and KI members argue that's not enough: "The government's view is that there will be consultation but at the end of the process there will be mining exploration," says Ardoch co-chief Mireille Lapointe. "That's not consultation. There needs to be the possibility it will lead to no exploration."

Now that free entry has moved out of the shadows, a reportedly divided Liberal cabinet is trying to figure out how to respond.

To defuse the controversy, the government says it supports freeing Lovelace and the "KI Six."

On the bigger issue: "We need to modernize the Act so that it is in keeping with our values and expectations at the beginning of the 21st century," McGuinty said in a recent written response to critics.

But it appears unlikely free entry will be abandoned, or that consultation will include a veto for Indians.

The government has no desire to curtail development, and some communities welcome it, Mines Minister Michael Gravelle said in a recent interview. "The real issue is how do we find the balance between the requirement to have consultation that's viewed as legitimate by First Nations and the need to maintain the investment climate, which is extremely positive in Ontario. It's a bit of a tightrope."