29. THE SHAKEDOWN OF PLATINEX

It is fundamental to our democratic society that respect for the rule of law and (court orders) is maintained. That is something that is not negotiable. – Smith C. J., Platinex Inc. vs. “KI” (below)

In all the views of receipt, expenditure, and personal employment, a sober legislator would carefully compare the possessor whom  he was recommended to expel, with the stranger who was proposed to fill his place. Before the inconveniences are incurred which must attend all violent revolutions in property through extensive confiscation, we ought to have some assurance that the purchasers of the confiscated property will be in a considerable degree more laborious, more virtuous, more sober, less disposed to extort an unreasonable proportion of the gains of the labourer, or to consume on themselves a larger share than is fit for the measure of an individual, or that they should be qualified to dispense the surplus in a more steady and equal mode, so as to answer the purposes of a politic expenditure, than the old possessors. – Edmund Burke – Reflections

The financial shakedown aspect of a modern Indian entitlement claim was amply demonstrated in another Ontario case that was happening at the same time as the Frontenac Ventures case – Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation1 ( herein mercifully shortened, as the court did, to “KI”).

Again, like Frontenac Ventures, Platinex was a mining exploration company lawfully engaging, at huge expense, in chromium/platinum mineral exploration activity on leased/licensed  Crown land in the “Ring of Fire” area – the same area that Cliffs Natural Resources had wanted to operate in – but that was, as the court said, in “traditional Aboriginal territory” (which, as stated, could be said for almost any place in Canada). The description of the events which happened in this situation is set out in lengthy fashion for an important reason; because they so well set out the template for the surreal and Kafkaesque fate which awaits  any  private business in Canada involved with any proposed Crown or Crown-authorized undertaking which doesn’t properly play ball with any remotely -nearby Indian band which demands, on its danegeld terms, to be consulted and accommodated.

Members of the KI band, whose reservation village, Big Trout Lake (580 kilometres north of Thunder Bay), was about 40 kilometres away from the drilling area, claiming that their “way of life and culture” were threatened by the proposed drilling and that they had not been “consulted” about it, in February of 2006, erected illegal blockades, thus physically preventing Platinex from accessing its’ properties and in effect shutting down its exploration activities.

Naively thinking that centuries-old principles of Anglo-Canadian law would assist it, and only after fruitless efforts on its part to have meaningful discussions with both KI and the provincial government had been met with basic silence on the part both of them, Platinex, in April of 2006, sued the band and the individual blockaders for an order ending the blockade.

Before the Haida Nation line of cases, in these circumstances, such a court proceeding would have led to a quick application of the law and the granting by the Court of an appropriate legal remedy. But Canada is into a “new normal” in this area now. Platinex, not yet understanding this when it started its proceeding, began not a conventional legal proceeding with established rules and precedents and a measure of predictability, but rather a Kafkaesque process of lengthy, indeterminate, open-ended “consultation and accommodation,” where the only legal rule was that there were no rules, and the only real question was not whether Platinex would have to pay danegeld to KI, but to what degree and in what form.

Forget the injunction. That was off the table, especially because of, once again, as in Frontenac, Ontario and its fretful handmaiden, the Ontario Provincial Police, by their frightened, confused and shameful passivity, essentially siding with the illegal blockaders against Platinex. (In a press release in May of 2007, Platinex, in describing to its shareholders the events of 2006, related what it had been told by the OPP in 2006 as the reason for the OPP’s refusal to take steps to end the illegal blockade: “The Ontario Provincial Police stated that they could not differentiate between the KI rights and Platinex’s rights.”)

Such is the state to which we have arrived – where our law enforcement officials grant equal legal weight to, on the one hand, unauthorized blockages, placards, empty pizza boxes and drumbeats, and on the other hand, to properly executed legal documents granting and embodying clearly-worded property rights.

On July 28, 2006 the court did grant interim injunctive relief to Platinex, but it made it conditional on KI immediately establishing “a consultation committee charged with the responsibility of meeting with the representatives of Platinex and the Provincial Crown with the objective of developing an agreement to allow Platinex to conduct its two-phase drilling project at Big Trout Lake.” In other words, KI had to be ordered to talk with those whom they had wronged, and no effective injunctive relief would be given until that talking process was completed!

Over the ensuing months Platinex almost tore its corporate hair out trying to please and placate KI, coming up with version after version of a consultation agreement that might be satisfactory to it, but none of which KI would sign or the province would take a stand on. They seemingly weren’t good enough to meet KI’s extremely high and constantly shifting demands and standards.

The feckless Province on its part, employing its “retreat and hide” policy, was basically just too gutless to stand behind its own mineral leases or stand up to KI. The Province was acting negligently towards Platinex in this situation, just as it had acted negligently towards Frontenac, and by extension towards the mining industry and the rest of the affected private sector generally, by not stopping and asking itself:  “Does Platinex even have a duty to consult here? Why should it have a duty to consult?”

After all, there were no proposed or contemplated Crown or Crown-authorized actions or decisions involved here. This was a mining company, like Frontenac had been, carrying out past-acquired exploration rights. Platinex was not seeking the Crown’s permission to do anything. It had the independent, ongoing right to explore without involving the Crown or getting further permissions from it. Perhaps Haida Nation, which only involved “proposed” Crown or Crown-authorized conduct, didn’t apply!

Had Ontario’s political leaders and senior bureaucrats been possessed of a proper, robust and traditional pro-Crown sovereignty philosophical outlook and mental stance these considerations would likely have occurred to them. Instead, they seem to have been so caught up in the new-age romanticism of the Indian rights movement that they were mentally lazy and careless in their legal analysis of Haida Nation and its impact on Crown sovereignty – and insufficiently cognizant of their true duties and obligations, and of where lay their own best interests and those of the people of Ontario. Caught up in the “spirit” of Haida Nation, as they felt it, and ignoring or failing to consider important, key, limiting parts of it, they implicity and expressly took the Indians’ side of the issue over that of Platinex, just as they had done in the Frontenac Ventures situation. In so doing they not only failed these two companies, they also failed to properly serve the public interest.

Finally, in May of 2007, with Platinex back in court looking for judicial relief from this bad-dream situation, the court, never considering itself or having had put to it the possibility that the Crown had no duty to consult KI, imposed a consultation agreement on the parties. This is very unusual because for centuries our courts have said “… we don’t make agreements between parties before us, we only interpret them….” This then is another aspect of the new “two-tiered” normal.

Without a hint of skepticism  Mr. Justice Smith of the Ontario Superior Court of Justice, in his decision creating the legal framework for formal “consultation and accommodation” agreements amongst KI, the Crown and Platinex – the “Consultation Protocol” and the “Memorandum of Understanding”( basically a formalized danegeld agreement), wrote:

Although interested in the possible commercial and economic opportunities, KI views the issues of sovereignty, and cultural and spiritual concerns, as being paramount.

He then proceeded to hand to KI, and to every other Indian band in the future which, in pursuit of an asserted aboriginal right, chooses to break the law, a new legal arrow in their quiver. Finishing Justice McLachlin’s “never conquered” comment in Haida Nation, Mr. Justice Smith, with no historical basis whatsoever for saying it, went on to say that Treaty 9, the treaty by which the forefathers of KI band members had surrendered their rights to the lands in question in favour of the Crown – had agreed to these rights being extinguished – was “a special form of agreement between sovereign states.”

This astonishing statement, for which no evidence or authority was given, is just not true. The Indians who signed Treaty 9 – like the Indians who signed all the other treaties in Canada, for the reasons extensively set out above, were clearly not members or citizens of “states.” But, as stated before, it’s been one of those careless, factually baseless, hitherto legally unsupported and disgracefully unchallenged notions that has been bandied about in the past twenty years or so by Indian leaders across the country, like former chiefs Madahbee and Day, above, in their various campaigns for more entitlements, power and money.

Now this false and dangerous notion (along with the “never conquered” notion), has the official imprimatur of a Superior Court judge, in relation to which our Court of Appeal, when it had the chance to comment on and debunk it, remained silent. (see below)

And what of the paramount “cultural and spiritual concerns” of KI?  They’re virtually invisible. What one sees in this agreement and what it represents  is virtually a sole concern for money, jobs, the arrogation to KI of petty powers and… just something of an interfering, fussy and busywork nature for a few lucky or privileged KI members to do – something to give a sense of purpose and a bit of excitement to their otherwise long, routine days in this extremely remote place.

Five of the eight consultation subjects listed in the Consultation Protocol, which Platinex was essentially forced to sign, were about power sharing, jobs and money:

Participation in decision making, the use of KI supplies and services, employment of people of the KI community, compensation, and if appropriate, other methods or means of accommodation, and funding.

One was about the environmental impact of the proposed drilling. (Presumably the expertise and mandate of the Ontario Ministry of the Environment was inadequate to handle this subject matter.)

One was about the impact on the harvesting and other undefined (probably merely “potential”) “treaty rights of the people of KI.” (Presumably the combined resources of the Ministry of the Environment and the Ministry of Natural Resources of Ontario (the latter responsible for conservation), were inadequate to the deal with the effects of drilling activities on harvesting.)

The last was “potential burial sites in the vicinity of the Platinex claims and leased sites,” although, as it turned out, KI had no actual knowledge of any burial sites other than the graveyard in the village of Big Trout Lake. So much for the oral tradition and “traditional knowledge”, or, as now called by all in the Indian industry, it being a standard part of any aboriginal consult and accommodate shakedown claim, “traditional knowledge data, or “tdk”.

That KI would have no actual knowledge of ancient burial sites is not surprising because, as Peter Heather (above) wrote, burial sites evidenced by or containing anything of a lasting physical nature (coffins, monuments, plaques, coins, funerary gifts, weaponry, burial vaults etc.) are not characteristic of nomadic, paleolithic, tribal societies, which is what KI’s ancestors constituted.

Nonetheless, consistent with lawyer Richard T. King’s statement at the St. Andrews conference (referred to above) that he “blindly accepts” aboriginal assertions of the existence of “traditional knowledge data, or “tdk”, (that Mr. King’s clients have to pay the Indian band to go on a wild goose chase for),  in order to avoid the risks of the kind of backlash, legal and illegal, referred to above, and, along these lines, to resignedly placate everyone, Platinex was forced to agree to hire an archaeologist to “pre-screen” every drill hole and share their “findings” with KI.

The burial site provision seemed to be the only provision dealing with the “cultural and spiritual” concerns that were supposed to be “paramount.”

The minor matter of jobs, power and money that Justice Smith casually mentioned in passing ended up taking up quite a bit, in fact an inordinate amount, of space in the KI agreement.

Honourable as ever to the point of self-immolation, Ontario agreed to pay virtually all of KI’s “reasonable costs of accommodation.” These “reasonable” costs, which KI seems to have been permitted to basically define and establish itself, were set out in an Appendix to the Consultation Protocol – a testament to sheer, virtually unbridled economic opportunism  on the part of KI – which (with some of this writer’s brief, impossible -to -resist sidebar comments), stated as follows:

Administration includes: salary and benefits for a Community Liaison Worker to organize meetings, handle logistics (one would think that KI was doing the drilling) and provide administrative support for KI Consultation Committee (KICC) members; office space, office supplies, telephone and fax charges and photocopies (typical “traditional” aboriginal administrative tools).
Honoraria will be paid to KICC members and Elders to provide guidance and participate in the Consultation. (We, the Province of Ontario, will pay you to better pick Platinex’ pockets.)

KICC members will be eligible for honoraria at a maximum rate of $500/day/member. Elders will be eligible to claim a maximum of $200/day/member.

Technical expertise/Professional services include fees and travel expenses, if required. (We, KI, will definitely need these services because we really can’t tell you much about our potential cultural, spiritual and sovereignty losses caused by this drilling until these non-Indian professionals from a faraway city tell us what they are).

Legal Services includes fees and disbursements, including travel expenses, if any, of lawyers retained to provide legal support to KI in the Consultation. (See immediately above.)

Travel Expenses are those expenses incurred by KI’s Consultation team to prepare for or attend Consultation sessions outside their home communities, including travel, meals and accommodation (not to exceed the prevailing provincial rates set out in Ontario’s Travel, Meal and Hospitality Expenses Directive). (It’s our traditional aboriginal custom to discuss the finer points of moose and geese migration patterns at the Royal York Hotel in Toronto.)

Tripartite Meetings and Internal Community Consultations-include the costs for facility rental, catering, minute taking, transportation and outreach (website, radio). (Our traditional ceremonial feasts were always catered.)
Other expenses-other expenses may be eligible; however, they must be submitted to Ontario for pre-approval to incur the expense.  (Don’t  worry  KI, when it comes to you, we at Ontario don’t know the meaning of “no”.)

Platinex agreed to establish a “benefit fund” for KI, being 2% of all monies spent by it carrying out its drilling program, and to enter into further, future “benefits agreements” with KI in the event that a mine turned out to be feasible (more “consultation and accommodation” to come, no doubt requiring  more facility rentals, catering and minute-taking etc), and even agreed to have KI “participate” in the company (i.e. be given a piece of the action) by being issued share warrants in it and having a KI member sit on its’ board of directors.

These now-called “impact benefit agreements” now constitute a judicially-sanctioned template, a court-approved holy grail, for any Indian band in Canada – like the Batchewana band referred to above, the Wahgoshig band in the Solid Gold Resource situation (below), or the Matawa Tribal Council in the Ring of Fire area –  that wants to try to horn in on any new private or public economic venture planned for or taking place in its “neighbourhood” (the term now being very expansively redefined by the “affected” Indians). And why wouldn’t they want to do that? It’s now legally there for the taking.

These now judicially-mandated agreements constitute a dangerous and unpredictable wild card for any organization trying to financially and organizationally plan for any major new venture taking place on public lands in Canada, and even, given the facts in the Caledonia case, on private property. They constitute a form of Court-sanctioned, Crown-tolerated, even Crown-encouraged forced and uncompensated transfer by the private sector of wealth and control to Indians.

They represent a new, unpredictable and uncontrollable layer of costs that will make responsible financial planning and budgeting impossible.

They represent a profound and destabilizing diminishment of hitherto established and necessary Crown sovereignty.

They will wreak havoc with Canada’s reputation as a fair and predictable place to do business. “Smart money,” if it has a choice, will choose to go elsewhere.

And danegeld agreements such as the one KI essentially coerced with Crown connivance and court assistance, will mainly enrich only the alpha Indians who have the smarts and moxy to manoeuvre themselves up to the honoraria-roster level of their respective bands. No doubt some jobs will be created – often more public relations make-work jobs than not. (All the flagmen and drill-hole burial site inspectors will definitely be Indians.)

But generally, the ordinary Indian, especially the 70% of Canada’s Indians who live off reserves, will get little from them. The sophistication and complexity of any modern industrial or civil engineering undertaking is such that only persons with years of education, training and experience can practically, safely and meaningfully be involved in it.

Big dollars will flow to unaccountable band offices, but as usual, not enough of it will flow down to the ordinary, vulnerable, powerless band members.  This is exemplified by the  Attawapiskat situation, where, even though nearby diamond mining giant DeBeers has paid millions of dollars over to the local band council, many of their band members still live in overcrowded, unsanitary, dangerous third world-type conditions.

And the general poverty, anomie, social ruination and overall general dependency endemic to Indian reservations and the vast majority of Indians, both on and off reserve, will continue unabated.

And in any event, regardless of the economic benefits derived, the moral, legal and constitutional underpinning of those benefits is so flawed, divisive and dysfunctional, so retrograde, so race-based and so unenlightened, that it would be an enduring disgrace for Canada to retain this underpinning  permanently as a basis for going forward as a truly civilized and principled country.

The KI leadership, the KI people, are really not the ones to blame in the Platinex situation or in any similar situation. The Batchawana, Matawa Tribal Council and Attawapiskat Indians are not ultimately to blame. People, left to their own devices, will generally take what they can take. All men, including Indians, are fallen angels. That’s why, over hundreds of years, we have developed laws to find a balance between the untrammeled right to self-seek and the public interest-laws being seriously and dangerously diminished by our elites here. Hungry people left in a grocery store suddenly abandoned by staff and management will eventually fill their shopping carts and leave without paying.

The fault lies with the courts and the Crowns, who in this area of Canadian life, have thrown the benefits of those centuries of balance-seeking out the window – have completely failed to mind the store.

  1. Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON SC)

 

By: Peter Best