The Kitchenuhmaykoosib Inninuwug (KI) First Nation is a community of 1,500 people living in an isolated reserve community on the Northern Shore of Big Trout Lake, approximately 700 km North of Thunder Bay, Canada. Like many reservations (which are "tracts of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band"), there is no year-round road access to the KI community, making delivery of essential services difficult, and contributing to a low standard of healthcare, education, and community infrastructure.
In 1929, Treaty 9 was signed, impacting First Nations groups living in Northern Ontario. The treaty promised the First Nations groups in the area an annual income, established education systems, and issued specific lands of reserve to them. The rest of the land was given to the government as territory for European settlers to continue expansion through the province, and the government was permitted to still build on it.
In May 2000, the KI band council, led by Chief Donny Morris, filed a Treaty Land Entitlement Claim with the Ontario and Canadian Governments. Their claim stated that based on the presence of several culturally and spiritually significant sites, and the traditional use of the area by the KI community, the original lands allotted to the KI reserve should include an additional 19 km2 around the shore of Big Trout Lake and surrounding lands. As the Treaty Land Entitlement claim was being researched, Platinex Inc., a junior mineral exploitation firm was also seeking rights to the KI lands to begin drilling for potential platinum deposits.
In 1999, Platinex had obtained mining claims to the Big Trout Lake area, based on the Mining Act which guarantees the law of free entry. In Ontario, miners have the right to use any and all Crown land for staking their claim and prospecting on the land. Their only step is to file a claim with the Ministry and once they have done this, they have the ability to work the land.
When the KI community was informed of these mining claims, they began a dialogue with Platinex about the traditional use of the land, and by 2001, with support from other First Nations groups in the area, issued a moratorium on development until the use of the land planning was established and the community had been properly consulted. The KI community was not opposed to the development but wanted to be a full partner in the process of this taking place, and be fully consulted.
Over the next few years, while Platinex worked to gather investment funds for the exploration process, they continued to meet with the Chief and the Band Council. They falsely told their investors that they had been given full consent from the KI community to begin ‘low impact exploration'. By August 2005, the KI community felt that the company had not met the criteria to involve their community, and as a result, they stated that their agreements with Platinex were null and void; they were opposed to any development on their territory. Despite this, by December 2005, Platinex had over $1 million in funds and permission to explore under the Mining Act, they set up camp to begin drilling for platinum in February 2006.
In response to this, the community members had a peaceful protest at the drilling site and Platinex temporarily withdrew. However, in April, Platinex filed a court injunction against KI from interfering with further exploration to find platinum deposits and filed a $10 billion lawsuit for damages caused by the protests. The KI countersued both Platinex for the damages and then Ontario on the ground that the Mining Act is unconstitutional because it does not recognize Aboriginal and treaty rights.
When the case was heard in June 2006, the judge ruled in favor of the KI, due to the fact that the KI would suffer “irreparable harm due to its loss of culturally and spiritually significant land, and of its connection to the land.” An injunction to suspend exploration was granted on the condition that KI would meet with Platinex and representatives from the Ontario Crown to consult and come to an agreement that would allow Platinex to drill nearby, but not necessarily within the TLE claim land.
Over the next six months, a conversation took place between the two parties, but the KI felt that nothing had changed in terms of the sites. However, the court disagreed on the grounds that adequate consultation had taken place and granted Platinex permission to start drilling in specific areas on the KI land by October 2007.
As a result, the KI protested and were brought to court again by Platinex in December 2007. Six members of the KI, including the chief, were charged with contempt of court, being disrespectful to court law, and sentenced to six months in jail.
However, after two months, the members were released based on the Court of Appeal’s ruling that found a disagreement between Ontario’s Mining Act and section 35 of the constitution which protects indigenous rights and treaty rights for the indigenous people in Canada. A new Mining Act was created that requires consultation and accommodation before certain mining exploration activities can commence. This enables indigenous voices to be properly heard in the process of development taking place on their lands.
However, following the Court of Appeal decision, in 2009 Platinex attempted to try to access their mining claims one final time. Members of the KI community went out to the lake where the floatplane was supposed to land, circling in boats and canoes to prevent it from landing.
Platinex then sued the Ontario government for damages, settling for a $5 million payout from the government and 2.5% of future royalties if a mine was ever built there. The conflict was significant to indigenous law in Canada because it brought to light the importance of effective engagement between developers and First Nations communities.
UPDATE: On Jan. 23, 2020 Platinex announced in a news release that it retains the 2.5% but offered to sell all or a part of the royalty to the Ontario government and provide them with information and guidance for mining exploration of the property [see 7]. The company is still pushing for the Big Trout Lake Igneous Complex platinum-palladium-rhodium horizons, thereby promoting the importance of platinum, palladium and rhodium as clean energy catalysts in the fight against climate change .