Two NWT First Nations launch court proceeding against Canada, the Mackenzie Valley Land and Water Board, and North Arrow Minerals

Thursday 20 August 2009

The Yellowknives Dene First Nation and Lutsel K‟e Dene First Nation filed a notice of application for judicial review in Federal Court on Friday, challenging a mineral exploration land use permit issued to North Arrow Minerals Inc.. The permit, issued by the Mackenzie Valley Land and Water Board on July 16th 2009, allows North Arrow to conduct a lithium mining exploration project within the First Nations‟ traditional territory over the objections of the communities.

The two Akaitcho Dene First Nations are seeking to have the permit revoked because proper prior consultation did not occur. The company, North Arrow Minerals, made only minimal efforts to contact community officials, and refused to hold community meetings or enter into discussions towards formal exploration agreements with the communities. However, Indian and Northern Affairs Canada advised that this constituted adequate consultation, and the Board proceeded to issue the permits.

“We are not against mining and exploration. We know this industry is part of our future. But such activities must be done responsibly, and with our participation,” said Lutsel K‟e Chief Steven Nitah. “We are seeking a relationship with mining and exploration companies that is based on recognition and respect, with appropriate measures in place to protect the land, environment, and our rights. But that is not happening here, simply because the company has decided to make an end-run around the process we have developed to formalize what we understood to be industry best practices for community engagement.”

The permit area, near Aylmer Lake, contains trails long used by the Yellowknives and Lutsel K‟e people for hunting, trapping and other traditional land uses. The area is on the migration route of the fragile Bathurst caribou herd. Burial grounds and other cultural sites are believed to be in the area.

The application filed by the Yellowknives and Lutsel K‟e says that Canada breached its duty to consult and accommodate them on North Arrow‟s project. It also says that the Mackenzie Valley Land and Water Board contravened its own legislation, and used an unfair process when it asked Indian Affairs to decide whether consultation was complete. In order to ensure adequate consultation, avoid conflicts and develop more respectful relationships with industry, the Akaitcho Dene have developed a consultation process for mineral exploration. Exploration agreements have been concluded with exploration companies over the past year, and these companies have proceeded with their exploration programs with full First Nation support. Exploration agreements are recommended by industry organizations such as the Prospectors and Developers Association of Canada as best practices for the mineral industry.

“When North Arrow applied to the Board for its permit, the company told the board that it had already consulted us,” recounted Yellowknives Chief Edward Sangris. “That‟s not true. We were willing to work with North Arrow, and we sent them a draft Exploration Agreement to begin discussions. But instead of engaging in discussions with us, North Arrow rejected our process and went straight for the permit. We explained this to the Board. The permit should not have been granted, and we are now forced to go to court to try to make things right.”

Contact:

Chief Steven Nitah Lutsel K‟e Dene First Nation P.O. Box 28 Lutsel K‟e, NT X0E 1A0 (867) 370-3051

Chief Edward Sangris Yellowknives Dene First Nation P.O. Box 2514 Yellowknife, NT X1A 3Z1 (867) 873-4307

Background information on North Arrow Action:

Two Akaitcho communities – the Yellowknives Dene and Lutsel K‟e Dene First Nations – are seeking to have permits issued to North Arrow Minerals set aside, and to obtain direction from the Federal Court concerning:

1. Steps that are required to ensure adequate consultation and accommodation;

2. Measures to ensure the Mackenzie Valley Resource Management Act is applied fairly and correctly by responsible Boards and decision-makers; and

3. The consultation obligations of developers.

Background: North Arrow Minerals is only the latest exploration company to undertake exploration in the Akaitcho territory without first effectively engaging affected First Nations.

The Dene Peoples are a caribou people, with a cultural heritage established from generations of life on the land. The two cannot be separated, and both are under increasing threat.

Environment and Natural Resources has already advised that the Bathurst Caribou herd is in a precipitous decline. While the 2009 caribou census is not yet complete, early indications are that the herd now numbers approximately only 30,000 animals, down from 108,000 in 2006 and from 472,000 in the 1980s. Dene communities depend on caribou, and both subsistence and social-well being are being dramatically affected by the decline. Community members and biologists have linked the increasing pace, scale and location of mineral activities with the decline of the caribou herds.

Despite the urgency of this issue, and the intensity of community concern, the mining and exploration industry is largely being permitted to operate under a „business as usual‟ scenario. Akaitcho Dene First Nations believe that this undermines Aboriginal and Treaty rights.

The Supreme Court of Canada have noted in numerous decisions that when developments may impact Aboriginal and Treaty Rights, First Nations must be consulted and accommodation measures implemented by the Crown to mitigate the impacts.

The Prospectors and Developers Association of Canada has developed “E3Plus – A Framework for Responsible Exploration‟ and is promoting the adoption of principles and guidelines for responsible exploration among the industry. This includes recommendations to “whenever possible, confirm commitments and accords with the community in the form of written agreements that incorporate terms which respect community values and processes”.

Chronology:

North Arrow Minerals notified the Akaitcho communities of intentions to seek permits to proceed with exploration activities near Alymer Lake in late December 2008.

Efforts by the Akaitcho communities to pro-actively engage with North Arrow to address their concerns and establish a positive relationship through exploration agreements were rejected by the company, which objected to paying for community meetings, monitoring and archaeological research.
The company unilaterally initiated a formal request for permit approvals from the Mackenzie Valley Land and Water Board in April 2008, stating that had „consulted‟ affected First Nations. Both the Yellowknives Dene and Lutsel K‟e Dene First Nations objected to the application, indicating that they had not been adequately consulted, and noting that the activities of the company might affect their Aboriginal and Treaty rights.

In considering North Arrow Minerals‟ application, Mackenzie Valley Land and Water Board sought a determination from the Department of Indian and Northern Affairs (INAC) on the adequacy of consultation. In responding to the Board‟s request, the Department of Indian and Northern Affairs (INAC) advised that consultation on the part of the government and the company was adequate, and further characterized the Akaitcho proposals as „frustrating‟ reasonable attempts by the company. INAC made this determination without discussion with the Akaitcho communities.

The Mackenzie Valley Land and Water Board relied on INAC‟s assessment of the adequacy of consultation, and issued a permit to North Arrow on 16 July 2009.

The Akaitcho communities initiated legal proceedings in Federal Court on 14 August, 2009.

For further background information, contact:

Stephen Ellis IMA Implementation Office (867) 370-3217
scellis@eastarm.com