Current Problems

Treaties and Land Claims

For generations, Grassy Narrows residents have used the land for hunting. Now, it’s in the middle of a lawsuit between Canadian mining corporations

December 12, 2022

Ontario has created a mess by granting mining claims on land Grassy Narrows aims to make protected Indigenous territory, First Nation’s leaders say.

Toronto Star: Barrick Gold Corp. is embroiled in a $100-million lawsuit against two junior mining companies, as an exploration deal between the firms fell apart over a decision to pause work to respect a First Nations’ opposition to mining on what it calls territorial land.

In recent court filings, Barrick says when it first signed on to conduct exploratory drilling in a swath of land 90 kilometres north of Kenora, it was unaware of the importance of the land to Grassy Narrows First Nation. The company says it wanted to first obtain consent before proceeding with its search for gold. 

In response, Barrick claims in its lawsuit, the two firms it partnered with — Red Lake Gold and Dixie Gold — are trying to terminate their mining exploration agreement. Those two firms, meanwhile, accuse Barrick of breaching their joint venture agreement and say they intend to fight the legal action.

To current and former Grassy Narrows leaders, this industry fight is just the latest illustration of the mess Ontario has created by granting mining claims on land that the First Nation has told government officials it is trying to protect. It is where residents hunt moose, pick berries and camp.

“I blame Ontario for giving out thousands of mining claims to companies on our territory in direct violation of our Indigenous laws,” former chief Randy Fobister told the Star.

Ontario opened the area — near one of Ontario’s most infamous sites of industrial pollution — to a rush of claims that have quadrupled since 2018.

“Ontario allowed these gold mining companies to come here against our will. Ontario has created this mess and Ontario must fix it by withdrawing our land from mining and logging,” Grassy Narrows Chief Rudy Turtle told the Star.

The mining claims at the centre of the companies’ dispute fall within Grassy Narrows’ proposed Indigenous Protected and Conserved Area (IPCA). If designated an IPCA by the federal government, Grassy Narrows would oversee the land’s management and conservation efforts, including determining land boundaries and management plans. 

Grassy leaders have said that it was only in recent years that they stumbled upon the flood of mining claims issued since 2018, when the mining industry seemed to zero in on the area for its prospects for gold. 

Community leaders were troubled because Ontario seemed to be rolling out a red carpet to mining prospectors while dragging its feet in investigating and excavating the two alleged toxic mercury dump sitesnear a paper mill property upstream in Dryden, Ont.

Toronto Star investigations have previously identified the two suspected sites upstream from the Indigenous community, where residents have long suffered mental and physical health problems due to mercury poisoning.

Minister of Northern Development Greg Rickford, who is also the minister of Indigenous Affairs, did not respond to Fobister’s frustration with the province. During Question Period at Queen’s Park last week he said that the government is trying to strike a balance for all area Indigenous communities that are excited about mining and forestry opportunities.

A spokesperson for Ontario’s Ministry of Energy, Northern Development and Mines has noted that the overwhelming majority of claim registrations and exploration projects do not result in an operating mine.

Graeme Laberge, issues co-ordinator at that ministry, said the province is committed to meeting the Crown’s duty to consult with Indigenous communities “in relation to approvals for mining exploration and development activities where such activities have the potential to adversely affect a community’s established or credibly asserted Aboriginal or treaty rights.”

Since 2018, any licensed prospector can register a claim online for one or more available mining parcels of land.  The government does not tell prospectors before they stake a claim if a First Nation contests the plot is on Indigenous territory. The First Nation also does not find out until after the claim has been staked, if it finds out at all.

The mining claims were held by Red Lake and Dixie Gold, who then went into partnership with Barrick, who signed on to fund and perform early stage exploration work. In exchange, Barrick would receive 70 per cent interest in the properties.

Former chief Fobister sent letters to these companies, beginning in February 2020, citing how he was deeply concerned that they had agreed to acquire interests that overlapped with their territories without consulting the people who actually lived on those lands. “This is disrespectful, distressing, and it adds to the already great burden that our community must bear,” he wrote to Rob Krcmarov, Barrick’s executive vice president of exploration and growth, on Dec. 10, 2021.

In January 2022, Grassy and Barrick set up a virtual meeting. After Barrick CEO Mark Bristow talked to Fobister, he agreed to pause their activities, according to correspondences between the two reviewed by the Star.

According to its lawsuit, Barrick then went to its mining partners, notifying them of discussions with Grassy Narrows as an unforeseen circumstance that should halt their explorations, as it is the company’s policy to not conduct on-the-ground exploration without the support of impacted communities. Fobister also said Bristow told him he would “never” explore on Grassy Narrows territory against their will.

Then in June, Red Lake and Dixie Gold tried to break off their agreements, claiming that Barrick was in “material breach” of their agreements. Barrick sued Red Lake and Dixie for $100 million plus damages.

Correspondence between Fobister and Bristow following their meeting also shows that Bristow said there was not a “geologic basis” to investigate the portion of their claims that overlaps with Grassy’s proposed IPCA lands, and that the mining firm did not plan to “pursue exploration on that portion at this time.” Barrick geologists collected soil samples but did not conduct further on-the-ground exploration, according to Bristow’s correspondence.

“Barrick believes that working together with our First Nations partners is of the highest importance,” Bristow said in a letter to Fobister.

In the statement of claim, Barrick states that “strong, genuine and reliable” relationships with First Nations are built on mutual trust and respect, and that breaches of those relationships can have “devastating” commercial and reputational consequences for companies that can extend beyond a single project.

Red Lake and Dixie Gold did not respond to repeated requests for comment.

In similar July statements issued by both mining companies, they said they intend to fight the lawsuit, though no statement of defence has been filed. 

“Barrick Gold has failed to meet contractual requirements under the Earn-In Option Agreement and moreover [Red Lake Gold and Dixie Gold maintain] that no joint-venture exists as between the parties,” the companies said in the statement.

So far, the federal government has funded the development of IPCAs like the one Grassy Narrows is seeking to establish. However, an internal document, first revealed by the Narwhal in August, shows that Ontario was complaining that the federal approach to IPCAs encroached on Ontario’s jurisdiction.

According to Grassy Narrows leaders, the province must withdraw the Indigenous territory from mining activity to protect the First Nation from the risk of new industrial pollution that could impact future generations’ health. “We love our land and we will never stop defending it for our children, and for all of our relations,” said Chief Turtle. 

“It is deeply troubling that after all the harm Ontario has caused to us, they still refuse to respect our decisions and our Indigenous laws.”