requirement, in so far as it held that the community should reach a consensus on a decision before
it could become binding on them.121 The KI consequently viewed this initial Court ruling as an implicit
recognition of their consent requirement.122
In the subsequent reversal of its decision six months later, the Court effectively imposed a Company
and State defined protocol on the KI. The company’s right to proceed with its mining activities was
recognized by the Court. In the fall of 2007, the community prevented the company from entering
their community and continued to maintain that Platinex was not welcome in their territory. Platinex
then brought a contempt of court motion in March 2008, following a court hearing, six of the KI
community members and leaders, who refused to recognize the Court’s decision and the externally
imposed memorandum of understanding and drilling timetable, were sentenced to jail for six
months. Following an appeal based on the severity of the sentences against the KI members, and
two members of the Ardoch Algonquin First Nation who were similarly sentenced to six months
imprisonment for ignoring an injunction, and a motion by Platinex that the KI members had spent
enough time in jail, they were released in May 2008. In May 2008 Platinex also filed a suit against
Ontario for 70 million dollars claiming that Ontario failed to discharge its obligation to consult KI and
that it breached its duty to warn Platinex that it would not enforce the rule of law around the Platinex
mining claims.
In 2009, Platinex again attempted to enter KI territory, but their plane was physically prevented from
landing by KI Chief Danny Morris who by chance or design was exercising his fishing rights on the
lake adjacent to the Platinex claims. That same year, Ontario and Platinex reached a settlement,
which entailed the province paying the company five million dollars and a potential future royalty
interest in order to surrender its mining claims and leases in KI territory and drop the outstanding
cases.123
A second gold mining company, God’s Lake Resources, obtained claims over areas within the KI
territory in 2009. In October 2011, KI learned that God’s Lake Resources had commenced early
exploration activities in their territories at Sherman Lake, in an area containing sacred burial grounds,124
and issued an eviction notice to the mining company. They also made the halting of the project a
condition for participation in discussions with the government.125 The government’s response was
that it was not legally empowered under the Mining Act to stop the company.126 However, on the 5th
of March, immediately prior to an international Prospectors and Developers Association conference,
the province announced the withdrawal of over 23,000 square kilometres of KI traditional lands from
areas open to mining claims. On the 29th of March it paid Gods Lake Resources 3.5 Million dollars
to abandon its claims.127
During the God’s Lake dispute the KI embarked on a Right to say No campaign. They developed
an enhanced consultation and consent protocol, which served as a means of resistance against
any repetition of the Platinex experience. The protocol asserts KI law – Kanawayandan D’aaki –
and their ownership over resources. The protocol was, as a result, developed in the context of an
immediate threat to the KI territorial and governance rights, and has been described as constituting
a key tactical decision in the resistance of mining projects and the assertion of KI jurisdiction on
the land.128 It was distributed to all households in the KI Oji-Cree dialect and served as a means for
mobilizing and educating the community in relation to asserting their self-governance rights.
While the KI’s protocol and decision-making rights were never formally recognized by the company
or the State, ultimately, the KI illustrated that they held a de-facto power to withhold consent by
preventing two companies from entering their territory and achieving an effective moratorium on
all mining activities. This de-facto consent power was exercised at considerable expense to the
community, particularly in a context where they were forced to repeatedly resist projects. The
FPIC protocol effectively constituted an effective tool for resistance in a context where the State
consultation requirements could be regarded as a mechanism for regulating that resistance.129
The KI case, together with the companion case of their ally the Ardoch Algonquin First Nation,
triggered a review of the 1868 Ontario Mining Act, and the substantial reform of the antiquated ‘free
entry’ system in the State of Ontario. However, the failure to incorporate a requirement for FPIC
means that the revision has not addressed the underlying issues which gave rise to and continue
34
Making Free, Prior and Informed Consent a Reality