How the election could change who gets a share of resource revenues

THUNDER BAY — For the first time in Ontario election history, every major party is running on a promise to share natural resource revenue with First Nations.

The relationship between First Nations, mining interests, and the province remains fraught and consultations can be strained, but the tenor of the conversation has changed: Ontario has gone from jailing First Nations leaders over grassroots protests to sitting at the negotiating table with them to work out resource-sharing deals.

In 2008 an Ontario Superior Court decision jailed the leadership of Kitchenuhmaykoosib Inninuwug First Nation (KI) — a fly-in community located 600 kilometres north of Thunder Bay. KI had expressed strong opposition to a mining company called Platinex drilling on its traditional territory, which had happened since 2001. The First Nation declared that neither the company nor the Ontario government — which granted Platinex a track of Crown land that the company had staked a claim to — had adequately consulted KI. The leadership was convicted of contempt after they prevented Platinex staff from entering the community; Chief Donny Morris and five councillors — who came to be known as the “KI Six” — were sentenced to six months in jail.

A decade later, KI continues to oppose the province’s authority to license mining in its traditional territory, but resource revenue-sharing deals between Ontario and First Nations in other areas of the north have set the stage for how the parties could see those relationships evolve under Ontario’s next government.

The Progressive Conservatives and New Democrats have made vague promises to share resource revenues with northern communities in past elections, but the Liberal deal has set a practical example that frames the discussion for 2018.

Seventeen of Ontario’s 38 operating mines are located in an area covered by natural resource revenue-sharing deals that the provincial government signed in March with Mushkegowuk Council, Wabun Tribal Council, and Grand Council Treaty 3. Those deals will transfer 40 per cent of existing mining tax and royalties to First Nations in those territories, as well as 45 per cent of taxes for future mines. In the forestry sector, 40 per cent of provincial stumpage revenues — a fee foresters pay to the government for harvesting trees — will go to First Nations. Communities are also free to sign impact benefit agreements directly with resource communities.

The Treaty 3 communities involved with the deal hope this is only the beginning of a broader framework for treaty relations. “It resets the relationship with Ontario,” says Treaty 3 negotiator Judy Maunula, also known as Lac Des Mille Lacs First Nation Chief Whitecloud. “It opens the door to future revenue resource-sharing so it’s not just limiting it to forestry and mining but there’s energy, there’s wildlife, fish and game, the whole kit and caboodle.”

At the time, Liberal leader Kathleen Wynne called the deals “historic,” adding in a statement, “The agreements demonstrate that today, reconciliation, fairness, and equality are no longer just words — they are actions. We are walking this journey, together.”

From protest to power

Back in 2008, public outcry condemned the arrest of the KI Six; Chief Morris and his councillors were released after serving two months of their six-month sentences.

The following year, the community watched as a boat and a canoe crisscrossed a lake near KI to prevent Platinex executives from landing in a floatplane.

Mining companies with claims in northern Ontario began filing lawsuits against the province for issuing permits without having conducted consultation with First Nations.

Platinex sued the province because it was prevented from using the mining permits it had been issued. By late 2009, the province reached a settlement with Platinex worth $5-million, and granted the company a 2.5 per cent share guarantee for future revenues on its claim.

Opposition parties criticized the Liberal government at Queen’s Park for failing both First Nations and the mining industry.

In response, the Liberals passed the Far North Act in 2010. It protected half of the remote north from development, while requiring that First Nations undertake land management plans to identify culturally significant sites in their traditional territories.

The Liberal majority government passed the legislation, despite condemnation from northern Ontario’s municipal and First Nations leaders, as well as forestry companies, mining consortia, and environmental activists.

Ontario’s First Nations leaders insisted that despite disapproving of the province’s approach to consultation and issuing mining permits, most communities weren’t opposed to development. Between 2003 and 2010, the number of agreements between First Nations and mining companies in Ontario increased from seven to 85.

As KI Councillor Cecilia Begg put it after her arrest, “Our treaty rights have to be respected.” For her, that meant not just consultation, but consent.

“[The Far North Act] continues to be a very strong discussion point, with Indigenous communities in particular,” says Michael Gravelle, who is also seeking re-election for the Liberals in Thunder Bay–Superior North and is minister of Northern Development and Mines in the outgoing cabinet. “They feel very strong about it, although they’re working with the government. It gives them the opportunity to make decisions about how they use their land.”

Alvin Fiddler is the Grand Chief of Nishnawbe Aski Nation, the political body representing 49 First Nations in northern Ontario, most of which are located in the far north. NAN has contended its communities were inadequately consulted since the Far North Act’s inception and as long as the law stands, Fiddler sees no legal reason why an incident like the arrest of KI’s leaders wouldn’t happen again.

“Our concern is … the conditions that led to the arrest of the KI Six is still there. The Far North Act is still there,” Fiddler says. “The minister that has final legal power as far as any development in the north is a concern. Where we want to see change is in legislation where it goes toward recognition and implementation of [the United Nations Declarations on the Rights of Indigenous Peoples],” which urges governments to recognize Indigenous people’s rights over their lands, territories and resources.

The federal government passed a private member’s bill last week that will require Canada’s laws to align with the UN’s declaration.

All of Ontario’s major political parties — except the Liberals, who created it — have vowed to repeal or overhaul the Far North Act, should they form government after the June 7 election.

(Even as the election is taking place, Eabametoong First Nation is waiting for the ruling on a case it presented in February, in which it alleged Ontario hadn’t adequately consulted the First Nation. It’s requesting the courts quash a permit the province issued to Landore Resources.)

What the PCs, NDP and Greens promise

Lac Seul First Nation Chief Clifford Bull is the only Indigenous candidate running for the Progressive Conservatives. He’s vying to represent Kiiwetinoong, the new riding that covers most of the landmass covered under the Far North Act.

Bull has known KI Chief Morris for decades and recalls feeling “dumbstruck” when Ontario arrested the KI Six. “[That] put us back decades in terms of building positive relationships.”

As a chief in Treaty 3, Bull signed the resource-sharing deal with Wynne’s government, but by his calculations his community is only going to receive $166,000 annually, which he says is not nearly fair value for the resources. He declares the PC’s promise to repeal the Far North Act is only the beginning.

“The Mining Act is an archaic piece of legislation that needs to be modernized. It definitely didn’t help the KI Six,” Bull says. “It’s not just the Mining Act, it has to go even further. The treaties that were signed back in the day, they need to be renegotiated to modern treaties to reflect the times and needs of Indigenous peoples and communities. Even the Indian Act should be abolished.”

Should the New Democrats form government after the June 7 election, NDP leader Andrea Horwath promises to commit all of Ontario’s annual mining tax revenues to First Nations, a fund she expects to more than quintuple from its current $41 million to $218 million by 2022. She insists the last-minute Liberal deals can’t redeem the party’s legacy in the eyes of First Nations or the rest of northern Ontario.

“It’s too little, too late,” Horwath says of Liberal policy in an interview with TVO. “They’ve had 15 years to do right by northern Ontario overall. They’ve had 15 years to get it right, to facilitate respectful relationships and dialogue, and actually investment for mining companies, First Nations communities and municipalities and they’ve failed — all these years they’ve failed.”

The Green Party is proposing to increase Ontario’s return on resource extraction from its current 1.5 per cent to 10 per cent — aligning Ontario’s rates with those in Saskatchewan. Green Party leader Mike Schreiner says this would generate $1 billion per year, 40 per cent of which he’d transfer to First Nations and northern municipalities.

“We have to stop giving our natural resources away,” Schreiner says. “Some people will say, ‘If we raise royalty rates, no one will invest in Ontario.’ I’m sorry. Those resources aren’t going anywhere. It’s not a factory you can shut down and move to Mexico. That wealth should go to the people of Ontario.”

‘We’re still living in another era’

Ontario Regional Chief Isadore Day points out that over the last 10 years, not only was Ontario paying mining companies not to proceed on their claims, the province wasn’t adequately consulting communities — and at the same time, it was subsidizing junior mining companies to explore on First Nations lands through tax credits.

While Day supports the decisions of those communities that have signed resource-sharing deals with the province, he insists “we’re still living way back in another era” because the provincial and federal governments still aren’t talking about sustainable agreements for control of the land, or giving First Nations formal authority over their share of the economy.

“We need to organize and we need to equalize our opportunities to be able to have the wealth that gets generated right throughout our territories,” Day says. “Look at the issue of municipal tax regimes and the way municipalities are able to tax locally. We need to look at the total flow of the investment dollar and how Ontario benefits from it and profits from every bit of movement from that dollar in the GDP framework.”

Back in KI, recently re-elected KI Chief Morris led his community in ratifying its land use plan under the Far North Act on May 15 — a process that took seven years of work.

KI is not subject to any of the new agreements. Its land use plan is conceived in defiance of the Far North Act.  KI’s plan protects 100 per cent of its 37,000-square-kilometre land base from provincially issued mining claims, rather than the 50 per cent covered under the law.

The day before Ontario’s election, KI’s leadership is meeting with eight adjacent First Nations to explore the possibility of combining land use plans to keep provincial planning out of the entire area.

“We’re the government. That’s what we want them to understand: we are the government up there,” Morris says. “If a company wants to come to the community, there’s a consultation protocol we have in place that’s endorsed by the community. If they recognize it, that means they recognize the governance of the community — then let’s see what the community says.”

This is one in a series of stories about issues affecting northwestern Ontario. It's brought to you in partnership with Confederation College of Applied Arts and Technology. Views and opinions expressed in this article are not necessarily those of the college.