The $io Billion Lawsuit
In 2006, the remote Ontario First Nation of Kitchenuhmaykoosib Inninu- wug (KI) said no to a mining company, was sued for $10 billion, had its leaders found in contempt of court and jailed but eventually prevailed when, three years later, the Ontario government paid the company $5 million to go away. This is how it happened.
KI, a remote First Nation community of 1200 or more people, is located on the shores of Big Trout Lake, on the margins of the Hudson Bay lowlands, in one of the largest remaining roadless areas in North America. Far from being simply a “wilderness,” the lands that the KI depend upon for their cultural and spiritual survival, their sacred and spiritual sites, were being staked and drilled in an extensive Canadian mining boom fueled by recent finds of diamonds and record high prices for gold, platinum, uranium, base metals and nickel (Strauss 2006). The boom threatened to “enclose” a commons that KI have occupied since time out of memory, and it triggered one of a global series of circulating struggles between the state, resource capital and Indigenous peoples in Canada and the global south.
The immediate context for these struggles in Ontario was the free entry regime, a legislative framework where so-called Crown lands are open for mineral exploration entry, unless they are specifically withdrawn. Free entry is a neo-liberal fantasy. There was no legislative requirement under the Mining Act that government consult First Nations or other land users, prior to opening lands for mineral exploration. There was no prior planning to establish which tracts of Crown land are culturally sensitive, or serve as critical habitat for endangered species, or are valued ecosystem components. In the words of lawyer Kate Kempton, “The problem is this is called a free entry system and it allows anybody and their dog basically to go out there and stake a claim to the land, which is often traditional territory of First Nations, without any consideration at all of their rights” (Kempton 2007).
“Consultation” had become the new watchword in government-Aboriginal relations after a trilogy of decisions at the Supreme Court: the Haida Nation and Taku River Tlingit decisions in 2004, and the Mikisew Cree decision in 2005. The Supreme Court outlined a new consultation duty, based that duty on the honour of the Crown, and said that the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal or Treaty right or interest, and contemplates conduct that might adversely affect it. The duty required consultation with the affected Aboriginal people that went beyond simply talking to substantially addressing Aboriginal concerns by adopting appropriate accommodation measures (Christie 2006). Long-held First Nation grievances about how they had been ignored in the decision-making of government and industry, standing and forced to stand on the sidelines as they watched resources leave their lands to make others rich and leave them poor, now found new legitimacy in the consultation cases.
Empowered by the legal victories of the Haida, Taku and Mikisew, angered by the glacial pace of change in the Ontario government’s consultation approach and worried by the rapid influx of mining “intruders” on their lands, five First Nations in Treaty #9 [1929 adhesion ], including the KI, declared mining exploration moratoriums affecting 5 million hectares of land in Ontario’s Far North. Their October 2005 “No Means No” declaration put the mining industry and the government of Ontario on notice that the First Nation commons would not be easily enclosed by junior mining exploration companies seeking speculative profits in their endless cycles of promotion. The latest round in the First Nation struggle against what David Harvey (2009) calls “accumulation by dispossession” had begun in Ontario.
First Nation moratorium or not, mining exploration company Platinex decided to test the resolve of KI and set up a drilling camp on the community’s traditional lands at Nemeigusabins Lake in February 2006 (MNP 2006b).
The Company and KI disagree about what took place when the Platinex drillers and KI community members met in the open air on the land for two weeks in February 2006. Platinex tells a story of conspiracy, threats, violence and sabotage, a story vigorously disputed by KI. KI tells a story of meetings for tea and polite requests to leave. The following facts, however, are undisputed. Chief Donny Morris and Councillor Sam McKay delivered an eviction notice to the drillers and the next day the Company flew in a corporate security consultant, popularly known as “the mercenary,” who eventually organized a “truce” and the withdrawal of the drilling crew from the site. No one was injured and no one was arrested. Officers of the Ontario Provincial Police were present and
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much to the Company’s dismay; no criminal charges against the KI protectors of the land were laid. (See Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation 2006).
In short order, Platinex filed an injunction to seek a permanent court order preventing any KI interference with the drilling program as well as $10 billion in money damages (MNP 2006b). The “10 billion claim is reported to be the highest in Canadian legal history and rivals the damages in the big tobacco lawsuits in the U.S. The $10 billion figure was not idly chosen: it was designed to intimidate and silence the KI community as a type of SLAPP (Strategic Lawsuit Against Public Participation) suit, commonly brought by corporations against environmental protesters.
After careful deliberation, the community decided to fight the Platinex injunction and retained Aboriginal law specialists, Olthuis, Kleer, Townsend to represent them. The “what” and “why” logic of a legal defense and a political campaign often diverge. For the KI First Nation, their right to say no, a right they believed the Creator, their own Indigenous laws and the Treaty gave them, was at the core of their struggle. The KI legal defense team made a strategic decision to translate KI’s legal, moral and ethical opposition to Platinex into a legal defense built around an outstanding land claim, the project’s threats to KI’s lands, culture and spirituality, and the failure of Ontario to meet its constitutional duty to consult KI prior to Platinex’s proceeding with the drilling project. Platinex, on the other hand, told the court a story of dire consequences, with a small company facing imminent bankruptcy by a novel form of claim jumping by land claim and warned that if KI were successful, all mining claims north of the 51st parallel could be rendered worthless or put in jeapardy. But even Platinex acknowledged that Ontario had failed to consult with KI (Harries 2006).
On July 27, 2006, KI won what the judge described as an “interim, interim injunction” and Platinex lost its bid to immediately begin the drilling project. In the most famous sentence in the decision, Justice Smith wrote, “This case highlights the clash of two very different perspectives and cultures in a struggle over one of Canada’s last remaining frontiers. On the one hand, there is the desire for the economic development of the rich resources located on a vast tract of pristine land in a remote portion of Northwestern Ontario. Resisting this development is an Aboriginal community fighting to safeguard and preserve its traditional land, culture, way of life and core beliefs” (Christie 2006). Justice Smith ordered Platinex to suspend drilling or exploration for five months while consultation with KI and Ontario took place.
The five-month pause created by the court’s interim order was taken up with complex legal maneuvering around negotiating the terms and funding of a community consultation process with Ontario and Platinex. During that time, the KI dispute faded from the public eye, and the community point of engagement with the negotiations was largely teleconferences between KI’s elected leadership and their Toronto-based legal team.
The consultation talks dragged on into December 2006 with no resolution in sight. No agreement had been reached on a set of rules to guide the consultation or on even what the consultation’s goals would be. In an effort to break the stalemate, Ontario filed an application to join the legal proceedings as a party to the injunction motion. After a lengthy hearing in late January 2007, the judge agreed to add Ontario as a party to the injunction (CNW 2007). From this point forward, it would be two against one in the court fight. What was already a complex case became even more complex. And with complexity came increasing costs for KI as they were now forced to respond to the motions and arguments of both Platinex and Ontario.
Back in KI, under the pressure of mounting legal costs, the rejection of their land claim by Ontario, and Ontario’s position that consultation must lead to drilling, the KI leadership began to consider how or whether to exit the litigation. Consultation was a duty that fell on both Ontario and KI. A First Nations participation or non-participation in a consultation process was all evidence about whether and how the duty to consult had been met. Leaving the court process likely meant KI being found in contempt and a confrontation on the land with criminal charges.
At an April 2007 hearing, Justice Smith rejected the KI argument for a full interlocutory injunction and gave the parties two weeks to come to an agreement on a consultation protocol and a memorandum of understanding with Platinex (Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007). The three-party talks went nowhere, and Platinex and Ontario decided to agree between themselves on the terms of the consultation protocol and memorandum of understanding. In a reprise of the original treaty negotiations, in May, Justice Smith unilaterally imposed the consultation protocol and memorandum of understanding agreements on KI and ordered that Platinex could access their “property” beginning on June 1, 2007 (Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007).
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From left to right, Bruce Sakakeep, Darryl Salnnawap, Donny Morris, Sam McKay and Jack McKay at the Thunder Bay Correctional Centre. Cecilia Begg (not present) was held at the Thunder Bay District Jail.
The court decisions left KI with only three options: 1) accept the court ordered consultation protocol and memorandum of understanding and let Platinex on the land to drill; 2) appeal the decision, or; 3) withdraw from the process and defend their land. The KI leadership returned to their community and began a door-to-door canvass to seek direction from the membership. From this point forward, the KI community would have to look to each other rather than the law to find the solutions to their struggle with Ontario and Platinex.
The Jailing of the KI6
On August 29, 2007, KI advised Ontario that they were pulling out of the consultation talks. But Platinex would not be deterred. On September 24, 2007, Platinex CEO Trusler and his archaeological consultants ignored KI's letters and notices saying that theywere not welcome and instead flew into the community. They were met at the gravel airstrip by more than one hundred KI community members who told them to go home or face trespassing charges if they set foot on the reserve. The impasse continued for seven hours and was finally resolved when two Ontario Provincial Police officers flew in to KI and requested Platinex to leave. Platinex immediately wrote to Justice Smith and requested an opportunity to be heard on an urgent motion to compel KI to allow the Company access to the land to prepare for drilling. The Platinex motion quoted KI Chief Donny Morris as stating that Platinex would never drill in his lifetime (MNP 2007).
The October 25, 2007 court appearance would be the last for KI legal counsel, Olthuis, Kleer, Townsend. KI, according to their spokesperson John Cut- feet, had spent almost $700,000 on their battle with Platinex and Ontario, and they were out of money and in serious debt to their lawyers. From KI's perspective, the community was a victim of a legal strategy adopted by the Company in collaboration with the government of Ontario that had effectively bankrupted an already impoverished community.
Three days before the October court appearance, KI had written to the Premier, the Ministers of Aboriginal Affairs and Mining, and the lawyers for Platinex and Ontario, telling them that they would be releasing their lawyers and proceeding as unrepresented litigants unless financial assistance was provided by Ontario to continue the talks. The community also warned that “we will address the Platinex situation ourselves, on the ground" and reminded the government that, “the moratorium on exploration and development within KI traditional homelands of 2001 is still in effect as mandated by the people to Chief and Council through various meetings and by way of a community referendum." (Chief Morris 2007) The letter received no reply.
After reading a brief statement to the court reiterating the points they had made in their letter to the Premier, KI representatives left the courtroom and the hearing continued in their absence. Justice Smith now ordered that the drilling project commence forthwith and enjoined KI members from blocking the project. Platinex lawyers were to draft a communiqué explaining all this in English and Oji-Cree and to fax it into the community. The expectation was that KI would willingly provide the needed information to assist Platinex in pre-screening the drill project for any burials, sensitive sites or hunting conflicts, as well as provide no interference or “destruction" to the Company.
On November 1, 2007, Platinex faxed a drilling timetable to KI. KI responded the next day stating that KI and its members, “want no such activity other than the traditional customary practices to be permitted on these lands." On the issue of Platinex's access to the land, the community stated: “As for your proposed arrival in the community on November 6, 2007, please be advised that the membership of Kitchenuhmaykoosib Inninuwug are reaffirming that your admittance into the community IS NOT allowed and this has been demonstrated to you once before." (Chief Morris 2007)
For Platinex, the KI letter provided all the evidence needed to proceed with a contempt of court hearing against KI. KI decided it would not defend against the contempt and advised the court that KI would not obey the October 25th order and would not engage in any further negotiations with Platinex. With no defense put forward, KI and the individual defendants were found in contempt of the October 25th court order. With respect to penalties for contempt of court, KI lawyer Reid told the court that none of the individual defendants could afford to pay any fines or costs awards and would prefer to be jailed.
The case had become simpler and more dramatic. Governments relate to First Nations through treaties. Accordingly, the government was now the sole focus of KI. The KI struggle was about the community's right to say no and the limits of a fatally flawed Mining Act that had yet to incorporate the new law of Aboriginal consultation, let alone sovereignty and the right to free, prior and informed consent. The KI position reduced to three No's: no drilling or exploration on KI's territory, no negotiations with Platinex and no compliance with the October 25 court order.
 For histories of Treaty Number 9, see Long, J. (1978). Treaty No. Nine: The Negotiations, 19011928. Cobalt, ON: Highway Book Shop. And see Long, J. (1995), Who got what at Winisk? Beaver 75(1).