First Nations $95 Billion proposed lawsuit could have sweeping implications for the mining industry

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A consequential battle is shaping up in a place you may not know (Thunder Bay, Canada) over an issue you may never have heard of – Free, Prior, Informed Consent. (FPIC for short). The parties to the conflict are 10 of the Treaty 9 First Nations on one side and the Canadian Government on the other.

Why should you care? Here’s what’s at stake: $95 billion dollars that the indigenous nations say they will claim as compensation for past wrongs – and potentially much, much more because the argument essentially is about how mines will be approved in Canada going forward.

This fight has been brewing for a long time but now, with the urgent necessity of producing more critical minerals to transform economies and hopefully slow the current environmental decline, the outcome of this case could have consequences reaching far beyond Canada’s Great North.

Common understanding of the terms of an agreement is fundamental to its successful implementation. Shared values, when they exist, make for a stronger and more durable agreement that can be implemented consensually.

From its adoption in 2007 by the United Nations General Assembly the Declaration on the Rights of Indigenous Peoples, in which the concept of Free, Prior, Informed Consent (FPIC) is embedded, has been fraught with differing interpretations leading to misunderstandings. The Declaration itself is a statement of principles identifying and supporting fundamental human rights, with particular reference to Indigenous groups, and does not carry the force of law. Even so, it took decades for many States to acknowledge and accept the Declaration in their national context: for instance, only in 2016 did Canada announce its “full and unqualified support” for the Declaration and its commitment to implement it domestically.

What does FPIC really mean? Is it really so unclear? The FPIC’s comparatively vague definitions embody the difficulties in trying to achieve a document that could be accepted by the Member States of the UN.

“Free” – The consent is free, given voluntarily and without coercion, intimidation or manipulation. A process that is self-directed by the community from whom consent is being sought, unencumbered by coercion, expectations or timelines that are externally imposed.

“Prior” – The consent is sought sufficiently in advance of any authorization or commencement of activities.

“Informed” – The engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process.

“Consent” – A collective decision made by the right holders and reached through a customary decision-making process of the communities.

Implementation also has a wide range of possible interpretations and related actions. Nations can adopt the fundamental elements into their constitutions (as was done in Peru and Chile), national laws, structures or behaviors, with decreasing weight of law in that scale. This wide variation – and the basic unenforceability of FPIC – underscores the fundamental differences in interpretation of the concept.

In 2017, the Canadian Government established “Principles Respecting Canada’s Relationship with Indigenous Peoples.” The implementing commentary around Principle 6 includes the following language:

“The importance of free, prior and informed consent as identified in the United Nations Declaration, extends beyond title lands (author’s emphasis). To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together. It will ensure that indigenous peoples and their governments have a role in public decision-making as part of Canada’s constitutional framework and ensure that indigenous rights, interests and aspirations are recognized in decision-making.” *

In contrast, the Australian Government position is that “Australia notes, however, that the FPIC is a concept unique to the Declaration. As FPIC is not defined in the Declaration, its scope and content remains unsettled.” (authors’ emphasis) The Australian submission goes on to say that “The Australian Government is of the view that legal frameworks, policies and practices in Australia are consistent with the aims of the Declaration.”*

The United States likewise notes in its 2010 statement adopting the Declaration that as regards FPIC “there is no universally accepted definition of Free, Prior and Informed Consent.”  (authors’ emphasis) The US goes on to say: The United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.” (authors’ emphasis)*

Even those Nations where the Principles have been constitutionally enshrined have grappled with the actual implementation on the ground of trying to facilitate dialog between Indigenous communities, mining companies and the government itself. Some of that difficulty lies in time: the majority of Indigenous communities have a consensual model of governance, and reaching a consensus agreement on complex issues is a time-consuming process which by its nature is too unwieldy for modern business practices.

A potentially very important thing in terms of FPIC and mining projects happened yesterday, April 26. Although press articles quote tribal leaders as saying the 1905 governing Treaty with the federal government of Canada is the basis for the legal challenge to mining permits granted by local and national governments, the lawsuit is fundamentally connected to the principles of FPIC. The 10 Treaty 9 First Nations party to the suit say they will be claiming $95 billion in damages from projects authorized by the Canadian government in their lands but without their consent. They will also be seeking injunctions prohibiting the government from regulating or enforcing regulations in treaty lands without their consent – aimed at blocking issuance of new mining permits or continuation of mines already in development.

As is the case with FIPC, the fundamental issue is the absence of a shared understanding of a document, in this case the Treaty. The plaintiffs in the lawsuit argue they never agreed to cede, release, surrender or yield up their jurisdiction to govern and care for the lands, as it says in the Treaty, entered into in 1905. Consequently, their demand is there must be co-jurisdiction where the province and Ottawa cannot move forward on land development without their consent.**

Here is the essence of the problem – the word ‘consent.’ From the inception of the FPIC, Indigenous peoples have interpreted the word to mean that they can say ‘no’ to a mining project and that project cannot proceed. This absolute rejection is not-withstanding any economic compensation offered, which conflicts with the interpretation of most mining companies, who believe that ‘no’ is the beginning of a negotiation to ensure the Indigenous communities affected benefit financially from the mines’ operations. It also conflicts with the interpretation of governments such as Australia and the US, whose emphasis is on the right of the Indigenous to be informed and consulted – but not to prevent the project from taking place.

Treaty 9 First Nations have decided to push for full implementation of FPIC principles in Canada, with sweeping implications for the mining industry. Everyone should pay close attention to how this legal action evolves, particularly given the urgency of developing new critical minerals projects not only in Canada but around the world.

Sources cited:

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30 responses

  1. C.P. ("Chris") Thompson Avatar
    C.P. (“Chris”) Thompson

    As the Editor and Publisher of this website, we will delete any racist comments and comments that advocate violence. As a forum for discussion, please remember to discuss and comment on the substance of the argument and not attack the character of the person making the argument or, in this case, the group that might launch a lawsuit.

  2. Rare Earths Investor Avatar
    Rare Earths Investor

    If this was to have an impact on the mining projects in CAD – how many years to sort this out in the legal system; a lawyer’s delight and miners’ nightmare? Vital Metals in CAD already recently walked away from a potential RE-feedstock resource because they felt the indigenous community was too far opposed.

    Already, US metals projects may be facing a Biden Admin’ that seemingly does not want to support any new critical metal mining before the 2024 election; a politically expedient stance. However, US thoughts of utilizing CAD RE projects instead now might require new timeline considerations if this unanticipated CAD roadblock was to ‘grow legs’.

    Thanks for writing, highlighting yet another potential fly in the ointment for the emergence of an N.American RE value chain.

    GLTA – REI

  3. Rk Avatar

    Again, thank the woke Trudeau government for this mess that ties up the hands of prosperity for Canadians overall and continues to elevate native Americans into a special class of people whose rights exceed that of most Canadians

    1. linda Avatar

      I’ll thank the fact that we’re more educated. I”ll thank the fact that prosperity is for everyone. That means, Indigenous People in this context. I’ll thank the fact that we can move beyond remaining the assholes that we’ve been.

    2. gordon m Avatar
      gordon m

      So only 95 Billion dollars. How much will be the next one? I really do not think the leaders of the Indigenous groups really care about Canada or all the Canadians and immigrants that go to work everyday, and have to move to find employment.

      This is the Indigenous way of thinking way of thinking. Wait for the Federal, Provincial or Municipal to plan some sort of project. They are aware of the project, get their lawyers ready, and somewhere along the process, they will challenge it in the beginning, part way thru construction or at completion. They will find some reason , or method to get money.

      They use a lot of Western technology, such computers, smartphones, hospitals, airplanes, internet, aluminum boats, outboard motors, APTN TV and the list goes on. I hardly hear anything that they appreciate any of this western technologies.

      What would have happened if we did not did teach them English or perhaps French. My guess they would have launched a $100 Billion dollar lawsuit. They would find a reason.

      They are content , to have the ability to shut down Canada( their words, not mine) every which way they can. They want a continuous stream of income, laws changed to their benefit, and this will never change, and perhaps we should just dissolve Canada.

      They are doing their best to eradicate, any history of the white civilization, by changing names of streets, schools, monuments, you name it. They they the BC Flag changed and I see eventually a toll charge to drive along Squamish highway to Whistler.

      The current and previous governments has made many changes, and no matter what we change or what we give them, it is only a ‘good first step”. I have a never even heard of Second , or Third.

      Does anybody know, what should be the last step that will make them happy? If anybody knows I would like to hear it.

      Just recently the BC Goverment did not support the BC Olympics, and someone in the Indigenous community said, it was the equivalent of going backwards 100 Steps. Why do they need this Olympics. Obviously they will have more tricks, up their sleeves. Or if they want it at least have it where there is more space. Not in congested Vancouver to Squamish.

      If they do not like the English version of O Canada, sing it in French then. The first line is ” Land of our Ancestors ” perhaps we can all agree on that.

      There are over 600 Indigenous band in Canada. Any agreements to settle all this, i believe will never happen.

      I have lived in Lower Mainland for over 40 years, my father and grandfather are born in Canada and my son is born in Vancouver.

      Yes , i am caucasion , came to Vancouver with about $300 in my pocket, lived in the downtown eastside for a number of years, and
      have worked non-stop for the last 34 years.

      These are my thoughts and opinions.


    3. Ramona Sudds Avatar
      Ramona Sudds

      let’s hope! But in all seriousness, let’s see how this unfolds in the courts, where it is objective. ok? ok.

  4. MH Avatar

    Unfortunately, this isn’t the true story when it comes to the consent of First Nations and the mineral rights issue. In the early 2000s when mineral exploration was beginning to exponentially grow in north Western Ontario, the MNDM did endeavour to consult the indigenous communities about mining and wanted their input on these matters before too much work occurred. What happened was a sheer lack of interest on the indigenous communities part to voice their concerns on mining. Andreas Lichtblau told me they tried many times to consult with first Nations and they simply did not respond or care about the issues. Then around 2008 when all the communities saw how much money was being spent on exploration all over north Western Ontario, the indigenous communities woke up, and all of a sudden wanted a say in mining in the north when previously they didn’t care.

    The mining environment in Canada is truly on bad ground when it comes to stability of mining investment. This is why debeers pulled out of Victor lake mining project in Attawapiskat simply because their business was being held by proverbial gun point by the local bands wanting more money. There are numerous instances of this kind thing happening in the thunder bay area. Lac Des Iles mine also being another victim of this problem.

    I personally have no idea what can be done to solve these issues, but everyone should just stop what they’re doing and make a fair agreement with all the stakeholders in the area or just pull the plug on mining altogether. Simply throwing money at these issues is a waste and it won’t solve anything. The worst part is who pays for these legal bills? The Canadian tax payer!

    1. David Michael Cross Avatar
      David Michael Cross


    2. ramona sudds Avatar
      ramona sudds

      exactly! leave the land alone.


    I agree with linda and am sad to see once again someone fail using woke as a derogetory term. This to me states this person is Conservative/PP follower, ignorant of FN/ indigenous and European colonization, treaties and their intents, but also disrespectful and belligerent to these same Peeples. His textual attack reminds me of the physical attack in Thunder Bay (hitch thrown at women that killed her). It’s a disgusting insult to Cdns but mostly for these people by this ENTITLED WHITE petson. I am also white.

  6. Marie Avatar

    I refuse to use the term “first nation” or “indiginous”. History 101, the Indians are not indigenous, they are asians who came to this continent across the Berring Strait. They killed and stole land from each other, so if you want to go back to the start, who really owns what? Secondly a “Nation” is something that is built on the back of hard work by many people. No Indian in Canada, or the US has built jack shit. If somebody can tell me something they have built or done on their own (without a handout), I am all ears. When are we going to stop paying for what went on with our ancestors. Why can’t we all be Canadians or Americans and all benefit from progress. It is completely unfair to treat any race differently or favor them in any way. My ancestors were English and were raped, pillaged, plundered and enslaved by vikings. So if we are to accept this bullshit, then I want compensation for that! Every country since the dawn of time has been taken by another. That is just how it is. If I had my way, Indians would have no land, (unless they bought it , like we have to), and no financial aid whatsoever. They can get off their lazy fat asses and get a job. The ignorant people who have posted here, blaming us modern day whites for this crap, need to read their history books, and grow a brain.

    1. Chad Avatar

      I believe you may be mistaking the nature of claims made by Aboriginal peoples in Canada (as you may very well be right in the proposition that indigenous and First Nations as a moniker may be off-point a smidge). I also don’t happen to think that the issues at hand, as regards claims to jurisdiction, title, self-determination, etc, are to be understood under the rubric of so called “identity politics”. I understand what is being asked for as being a claim made by a historically verifiable polity, that in many circumstances, were not “conquered”, or otherwise formally disengaged from their claims to self-determination. While the Crown may have told itself that it was capable of simply wiping preexisting aboriginal rights out, we can’t forget that section 35 of the constitution affirms and acknowledges the existence of such rights (even though various levels of government refuse to agree to what that means explicitly). Ultimately, Marie, you seem to be arguing that might makes right as regards control of territory, or that it would be in “Canada’s” interest for everyone to simply accept one set of unifying rights for every group in Canada. However, it is clear given the historical record, that many Aboriginal communities have not, never did, and continue to not accept the proposition that they will be told what, when, and how their preexisting rights are to be understood.

    2. Edward Avatar

      So it would seem you have nothing . There are no Europeans in the land we are talking about. There are no roads, no infrastructure nothing do to with you in this land at all. But because of your white privilege you think it is yours. You really are poor.

      1. David Michael Cross Avatar
        David Michael Cross

        The moment you trot out the ” white privilege ” card, you have lost the argument.

    3. Del Herbison Avatar
      Del Herbison

      Right ????

    4. Del Herbison Avatar
      Del Herbison

      Right on Marie !

    5. Rose Richardson Avatar
      Rose Richardson

      OMG ..what hole did you crawl out of.If someones decides to take the land that your home is sitting on and decides to dig for gold or whatever without your consent…would that be ok with you?????

      1. Bea Leeman Avatar
        Bea Leeman

        I agree

    6. Bea Leeman Avatar
      Bea Leeman

      This is a very racist statement. It’s First Nations land! Plain and simple, and you are not entitled to it!

  7. Tom Prioir Avatar
    Tom Prioir

    Zapata Vive la lucha sigue. Ya basta.
    New years eve 1994 NAFTA was signed by the 3 amigos. Salinas, Mexico’s president hailed as the economic savior of Mexico’s received a phone call at the palace and was told thousands of Mayan and other Indian peasants had taken over the tourist city of San Cristolbal. The pre-European Red peoples of turtle island had finally started organizing to help bring the the White folks into line with reality. Their courage against Mexico’s military and para-military forces sparked a revolution against the”golden calf”,

    1. Balter Avatar

      Turtle Island is a term only used by some East Canada tribes. Because we have a libtard government those people may be forgiven for assuming everyone out of sight agrees with them but in fact they are mistaken. Worst of all the simpering libtards are the most likely to rob them blind, being they are the bourgeois acting on behalf their aristocratic and middle class patrons to apologize for colonialism and then put the white working class in the dock. They ought to remember we beheaded the first King Charles.

  8. BB Avatar

    Once again it’s all about money.
    It’s always just about money.
    What do the Second Nations people contribute to the country’s economy. Not much, but they get everything for free. No taxes being paid, just sitting back and let others pay for everything.
    More Federal money already gets spent on Indians than on Health care and Military combined.
    Free Dental, free Education, free Housing, Free Everything.

    1. Rose Richardson Avatar
      Rose Richardson

      These are not handouts,perhaps you should do a bit more reading on history.

  9. Dusty Hedger Avatar
    Dusty Hedger

    The one question no one has asked is primary and simple , what gives the U.N. the right to dictate policy in a sovereign nation . They are neither elected or accountable for their opinions or actions . Furthermore they all should applaud the protection they are affording the Wegar people of China , Ooops an inconvenient omission of the righteous U.N.

  10. Kevin G Avatar
    Kevin G

    We’ve been told over n over that economics dictates we need similar policies to the US to balance investment so a label like woke or viture signalling seems to fit Trudeaus actions as it was absent of any meaninful wording to support resolution. An arbitration panel similar to free trade agmnts would help resolve and expedite disputues.
    I agree that special interest groups disrupt the fairness we seek within our society creating resentment and pit one group against another.
    I also agree that current state was built upon war persecution privilege greed entitlement etc but we need not continue that pattern. My Scotish kin were abused, starved and murdered by the Brits n now my wife is British.
    Let’s not forget the past but nor should we continue to wallow in it, be remided continuously or have a vocal minority off any special interest group dictate policy

  11. Jacqueline Avatar

    Being half Cree and Swiss all I have to say boo hoo to all you entitled Canadian and as you should be aware of history books aren’t exactly correct and I’ve paid taxes and have gotten nothing for free but who knows maybe I will now ????????????????????????????????????????????????????

  12. Stephen Lautens Avatar
    Stephen Lautens

    The proposed lawsuit (yet to be filed) is based on invalidating the 1905 treaty that gave up all rights to resource extraction in return for hunting and fishing rights, and designated settlement lands. The claim is, in its simplest terms, that the signatory nations didn’t know that they were giving up those rights and were somehow tricked. From a legal perspective, that has a low chance of success. Not only has it been almost 120 years, but the language of the treaty is pretty clear. To void a treaty or contract would require proof – the onus of which is on the claimant – that there was no knowledge of what the treaty contained. Hard to do with no one one still alive from the signing and after 120 years of living under it and with the clear language of the treaty. You don’t get to void a contract or treaty simply because you don’t like how it turned out.

    The proposed lawsuit (if it is ever filed) has little chance of success and in all likelihood will be hard fought by both the federal and Ontario provincial governments because of what is at stake.

    1. Tracy Avatar

      Stephen – Thank you for adding a modicum of rational discourse and redirecting the historical context for a better understanding amidst some extraordinary examples of racism. Let me also thank Melissa Sanderson who wrote this column and managed to take on a substantial issue and pair it down to a single issue, which she defines clearly and makes a clear case for all of us to understand —- .

      Her line: “Everyone should pay close attention to how this legal action evolves, particularly given the urgency of developing new critical minerals projects not only in Canada but around the world.” I plan on using this line in my introductory remarks for the Critical Minerals Institute Summit on June 14-15th. I applaud her efforts to communicate empathy, understanding and respect to both sides.

      It seems that we could all benefit from holding our fire cannons before we even – read TREATY 9. I was stunned to see that the CBC story I had raced over to our publisher CP Thompson was done incorrectly. Reminding me to take the advice I just cited, which is we must all be patient in this society where it no longer exists.

      Way to rock it Mel. And to everyone who has invested in sharing your opinion in a respectful way, thank you. And for those who have not, I urge you to change.

  13. William Epema Avatar
    William Epema

    I think that if the indigenous peoples want to give up all the terms in the original treaties and try their luck in court , to benefit from a Ill conceived vaguely worded document from another jurisdiction then let them. But they must put all there former treaty claims aside first. If they lose in court they must become a common wage slave like the rest of us. My father came to Canada in 1949 , no one in my family owes the native population anything . Even though I am 100% Canadian I’m a 2nd class citizen here. history is littered with the rise and fall of societal attrition and loss of territory through war , invasion , colonization , and extermination. What about what my ancestors lost , where does it end?
    The truth is Canada is rife with opportunities and all the people here now and those who come in the future should have the same opportunities. Whatever was owed was paid , end the cash grab and be fair to everyone!

  14. Ketegaunseebee Belleau Avatar
    Ketegaunseebee Belleau

    As an educated First Nation who could be considered as “assimilated”, I can understand the frustrations from both sides of the coin. In respect to the First Nation perspective, there are a few things here:
    – NIMBY – Not in my backyard – this mining has been proposed in the Far North, the backyard of these nations and out of the way of the average Canadian. There are great concerns behind the long term effects of how mining will effect the land, water, and the livelihoods of those in the area. The Far North is part of one of the largest contiguous tracts of land we have in the Canada, which goes relatively undisturbed by human settlement. Mining development means breaking up the land with roads and other infrastructure and there is no telling how this would affect the landscape in general. Mining also comes with risks like tailings leaching into waterways. Many of these nations already have drinking water issues that have yet to be addressed and now we are adding another threat to not only drinking water but the health of waterways.
    – Overall Benefits – who truly benefits from this development? The mining, engineering & construction corporations? These organizations are often large businesses that are established in other countries or provinces, thus siphoning wealth from an area to line pockets of the few else where (a problem that even average Canadian’s experience). Sure, associated First Nations would gain some sort of financial gain, but at what cost? Short-term gains – jobs & training opportunities, some money. But in the grand scheme of things, and with history as proof, First Nations are often left in the dust with zero to little autonomy in the ongoings of development and often serve as a token symbol to move past red tape (i.e. to meet environmental assessment mandates).
    – Historical agreements/policy – This is where Canada’s & the province’s real history and relationship with Indigenous peoples unfolds. Starting with the Royal Proclamation of 1763 – this is where “Indian” nations were acknowledged as sovereigns and the purchase of land could only be made between the settler and the government. Soon after followed the development of historical treaties – so to ease euro-settler settlements. “a formal agreement between two or more nations about sharing the land and resources, and living together in peace and in friendship” ( By the end of the Numbered treaties, conditions between sovereigns and the dominion were minimized so Canada could have more at a lesser cost (my opinion). For example, the Robinson Huron Treaty conditions differ vastly from those in Treaty 9 – Treaty 9 saw smaller allotments of land for reservations, more restrictions on where to establish reservations, and lesser annuity values, just to name a few. I will also mention that many of the treaty signatories signed with an X (writing was not common back then) and often did not understand English for which defined the treaty terms – is that really fair? Sure there were translators, but we know that translations lead to different interpretations, thus differences between oral and written text. Additionally, any negotiations made through oral discourse were not represented in text. Then followed the Indian act which led to residential schooling, something First Nation generations are still coping with today. There is much more from now and then but I just wanted to paint a broad picture that speaks to some of the comments made here
    – Defining rights – things get complicated here but generally put, rights of Indigenous peoples in Canada have been defined through supreme court cases. This lawsuit may be one approach to identifying the rights of those nations within the area. Having these instances documented through court has been one of the only ways Ontario and the Canada has acknowledged and identified Indigenous law/rights despite historical agreements.

    The non-Indigenous perspective:
    — Lands as Crown lands – we see Crown lands as the land of all Canadians and thus are entitled to develop lands and benefit from such developments. Why deal with the red tape when lands have been ceded? There are big investments to be made that can benefit our nation as a whole.
    — the desire to move past historical qualms. I can see how this seems cumbersome and the amounts of money being tossed around seems outrageous. I often see the argument, why should we be paying for something that happened in the past? or why wont Indigenous peoples just consider themselves as Canadians and move on? There is more than one way to answer those questions but in short, Indigenous peoples are proud of their heritage and they would like to be acknowledged as sovereign nations by having a seat at the decision making tables.

    One solution?
    — Including Indigenous peoples in the ownership of the project. This would go going beyond tokenism and payouts, give these nations a sense of entitlement, accountability, and contribution as a whole.

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