30. KI: THE FIRST TWO LETTERS IN “KINDERGARTEN”

Where the police do not enforce court orders in a timely fashion…there may not exist a practical legal remedy to the violation of legal rights in the particular circumstances. That would not be a healthy situation. It would leave the person whose rights have been transgressed only with a political remedy, trying to persuade the person whose rights have been transgressed only with a political remedy…That would then leave us with a government of men, not of laws. – Brown J. in Canadian National Railway Co. vs. John Doe1

There will be no drilling or mining on KI’s “traditional lands” near their Big Trout Lake reserve. KI members need have no further “cultural and spiritual” concerns. Because Platinex, finally fed up, gave up and moved on to other ventures elsewhere. The province of Ontario  had stood aside and watched as KI killed the platinum goose.

The danegeld agreement that the court had imposed on the parties obligated KI to cooperate in assisting Platinex to carry out the “archeological” work involved in the pre-screening of the drill holes. But KI failed to provide any of the required information to Platinex (likely because there was none to provide and KI didn’t want to admit it) and, inexplicably, KI, in blatant and dishonourable breach of the agreement, again began blockading access to the drilling sites  and threatening Platinex and its workers with personal harm and property damage.

Platinex had to take KI back to court. At the October 25th 2007 hearing for this KI told Justice Smith that because its legal bills were so large (one wonders why) it could no longer afford to continue in the court case. Then they left the courtroom, no doubt leaving those remaining speechless and incredulous at this turn of events – at this demonstration of wasteful and irresponsible behaviour. In their absence the presiding Judge, Justice Smith, who had previously bent over backwards for KI, heard evidence about how KI’s leadership had petulantly stopped all communication with Ontario’s negotiator about KI’s finances and funding relating to its legal and “consultation” expenses, even though KI had been consistently asking for, and had been given in the danegeld agreement, substantial financial assistance for these things. At the end of the day, after expressing dismay over KI’s behaviour, Justice Smith ordered KI not to interfere in any way with Platinex carrying out its operations or its side of the danegeld agreement, which despite KI’s breach of it, Platinex still was prepared to honour.

Shockingly, but really not surprisingly given KI’s consistent selfish disregard of anything or anybody that stood in its sanctimonious way, KI ignored Justice Smith’s October 25th order and the blockading and belligerence continued unabated, forcing Platinex to go back to Justice Smith in December and request him again to find KI in contempt of court.

Haida Nation mandates that the victims of Indian wrongdoing, in Indian land claims situations, must extensively and exhaustively “negotiate” with the wrongdoers almost to the point of inducing the victims’ personal madness. Accordingly, before the formal contempt hearing started Justice Smith ordered that the parties have another mediation session supervised by another Judge.

Platinex  press release of December 20th, in telling what happened next, speaks sparingly but eloquently of its’ blameless plight, correctly assigns shame and blame on both KI and the province, and hints that it was making plans to look elsewhere to advance its corporate objectives:

Aurora, Ontario, December 20, 2007 – representatives of Platinex, Kitchenuhmay Inninuwug, “KI”, and Ontario engaged in a court endorsed pre-trial in Thunder Bay, Ontario, before Mr. Justice Stephen O’Neill of the Superior Court of Justice. After a full day of discussions, KI announced for the very first time (after one and one-half years of litigation, preceded by seven years of communications between Platinex and KI) that it was asserting a claim to sovereignty over its traditional lands and that it wished to engage in discussions with Ontario in respect of such claim. The stated position of KI was that it would not dialogue with Platinex until such time as the issues between KI and Ontario were resolved. As a result, the facilitation did not result in any progress in the resolution of the Platinex-KI litigation. Platinex is thankful for the dedication and commitment demonstrated by Mr. Justice O’Neill in his handling of the facilitation. Platinex remains willing to participate in good faith discussions and negotiations with KI and Ontario.

On Friday, December 7, 2007, Platinex legal counsel proceeded with the contempt of court hearing against KI. The hearing was necessitated by KI’s refusal to honour the October 25, 2007 Order of Mr. Justice Smith confirming Platinex’s legal right to proceed with its drill program (first ordered in Mr. Justice Smith’s ruling of May 22, 2007) and the archaeological pre-screening of the drill hole sites. The motion also sought redress for KI’s threat to disrupt on a large scale Platinex”s intended drill program.

KI did not defend the contempt motion. However, KI’s legal counsel advised the Court that, in KI’s view, the current state of Canadian law did not adequately provide redress for KI’s grievances as against Ontario and Canada and, as such, KI was not able to comply with the orders of the Court. The Court was advised for the first time (after repeated appearances before the Court since May, 2006) that KI wished to negotiate with Ontario the issue of sovereignty over KI’s traditional lands and that, in KI’s view, the First Nations who were signatories to James Bay Treaty No. 9 never intended to relinquish their sovereignty to their traditional lands and that the express terms of James Bay Treaty No. 9 did not set out the entire agreement and understanding of the parties. This position is inconsistent with the Treaty Land Entitlement (“TLE”) claim that has been the focus of KI throughout the litigation.

The Court found KI and named members of KI including the Chief and several Council members to be in contempt of Court. The Court will hear submissions about the appropriate relief/sentence for the contempt on January 25, 2008.

KI made it clear, for the very first time in these protracted and costly legal proceedings, that KI’s objection to the Platinex drill program was no longer about Platinex and consultation respecting the Company’s drill program. KI now says that it will not engage in any discussions with Platinex until KI has resolved its issues with Ontario.

Platinex is extremely disappointed with this unexpected new legal position advanced by KI in the legal proceedings and expects that KI and Ontario will move expeditiously to resolve the issues between them. Platinex had previously made repeated requests for direct Ministerial involvement in the resolution of this dispute; but to date, neither Aboriginal Affairs Minister Michael Bryant nor Northern Development and Mines Minister Michael Gravelle has taken any steps to be involved in the resolution of this dispute. The same is also true of their predecessors, Minister Bartolucci and Minister Ramsay. This lack of initiative has contributed to the ongoing costs, losses and damages to Platinex for which Ontario, ultimately, may be held responsible.

Clearly KI had decided to go for the whole loaf i.e. by way of a land claim have the Platinex properties, developed and nearly brought to fruition by others, added to their reserve, and then sit back and watch the royalties roll in. This would have been a classic example of unjust enrichment.

Platinex’ press release continued:

Furthermore Mr. Justice Smith had stated in his October 25, 2007 ruling, “But of great concern to me of course is the repute of the administration of justice, the integrity of the system of justice… And it is the rule of law that is fundamentally the glue that keeps our society together. And we have to all have respect for it. Once that respect is lost, chaos will happen. It is fundamental to our democratic society that respect for the rule of law and the orders of this court and other courts is maintained. That is something that is not negotiable.” Platinex encourages KI to heed the words of Justice Smith.

The nine years of effort to access and prove up the PGE-chromium deposits at Big Trout Lake and assist in the fight against global warming have been frustrated by KI and the Government of Ontario.

Platinex has made every effort to accommodate all of KI’s stated concerns regarding the Platinex exploratory drill program. The Company has repeatedly stated its desire to engage in meaningful dialogue, and to foster a positive, mutually beneficial working relationship, with KI. Platinex remains willing to reach an agreement with KI that could include the dismissal of the legal action.

At the sentencing hearing on January 25th the contemnors own lawyer proposed jail as an appropriate sentence for his clients. Platinex did not seek a jail sentence for them. Justice Smith, finally realizing that respect for the traditional rule of law was the central issue at stake, on his own, sentenced them to six months in jail, which sentence, from their jail cells, the contemnors appealed to the Court of Appeal.

In a press release issued on February 26th, 2008, Platinex, surrendering to the reality that notwithstanding the injunction order it finally got, it was never going to experience anything other than negativity and dysfunctionality at the hands of KI and Ontario at Big Trout Creek, and that its energies and monies would be better spent elsewhere, advised its shareholders that it had “provided notice to the Province of Ontario of its claim for damages arising from its inability to gain access to the lands covered by its mining claims and leases. The notice was necessary to preserve any legal rights/claims which may wish to assert in the future.”

On May 22nd, 2008, just a few days before the hearing of the wrongdoers appeal by the Court of Appeal, Platinex announced that it had commenced a lawsuit against the government of Ontario claiming millions of dollars in damages on the basis 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. Platinex has suffered substantial wasted expenditures and economic harm as a result of not being able to access its mining claims.

James Trusler, the no-doubt beleaguered President of Platinex said:

We felt we had no choice but to file this lawsuit. Our exhaustive efforts in consultation with KI over nine years have been rejected by KI despite landmark Supreme Court rulings which have determined that a First Nation does not have a veto and despite recommendations of the recent Ipperwash inquiry. Our court ordered access to the mining claims has not been enforced.

The message was clear: “our only interest in Big Trout Lake now is to recover what we can from it through this lawsuit.”

When two or more cases involving the same legal issues are before an appellate court at the same time the court will often hear the appeals of all the cases together. In this instance the contemnors sentence appeal was heard at the same time as the appeal of the two college teachers in the Frontenac Ventures case.

Applying the “you should have tried to negotiate more even though they constantly rebuffed you” rationale set out in its decision in Frontenac Ventures, and specifically saying that the sentencing principles set out in Frontenac Ventures applied to the Platinex situation, and finally,  refusing to support Justice Smith’s view that the situation had reached the point where respect for the traditional rule of law had become the paramount consideration, the Ontario Court of Appeal2 overturned Justice Smith’s jail sentence. According to the Ontario Court of Appeal, and contrary to the Justice Smith’s view,  respect for the rule of law in Indian entitlement claims cases is indeed “negotiable”  whether or not as Justice Smith said,  “chaos” will ensue if that is lost.

Platinex, the only one in the situation to ever have acted “honourably” in the whole situation giving rise to the appeal, had not opposed the appeal of the jail sentences. As its lawyer advised the court, “the appellants have spent enough time in jail, the matter will ultimately be settled only through negotiation, and no good purpose would be served by keeping the appellants in jail any longer.”

But there was one good purpose that would have been served by keeping these people in jail to serve out their sentence, and that is the principle of deterrence of others from engaging in the same illegal conduct, a standard principle for a court to consider in every sentencing situation.

Given the contemnors repeated acts of wrongdoing, this highly relevant factor, in a traditional, one-tier justice system, would most likely have been considered and applied.

Platinex press release September 21, 2009:

PLATINEX AND ONTARIO MEDIATE OVER BIG TROUT LAKE PROPERTY -Platinex Inc. announced today that it is entering into mediation with Ontario to discuss possible options to resolve ongoing litigation between the parties. Mediation discussions will commence on September 21, 2009.

Platinex press release December 14, 2009:

PLATINEX AND ONTARIO SETTLE DISPUTE OVER BIG TROUT LAKE -Platinex Inc. announced  today that it has entered into an agreement with Ontario over its Big Trout Lake property. Platinex has agreed to surrender its claims and leases and settle the outstanding litigation on Big Trout Lake in exchange for an upfront sum totalling $5 million dollars in addition to the Company’s expenses throughout the Mediation process. The Company will also be entitled to a 2.5% Net Smelter Royalty in connection with any future development on the property.

Thus ended Platinex’ involvement with KI and Big Trout Lake, abandoned and then bought off by Ontario politicians and senior bureaucrats, and with the continuing poor and vulnerable KI band members, because of the unchecked, Haida Nation-inspired, reckless, irresponsible and illegal behaviour of their leaders, enabled and acquiesced in by these same politicians and senior bureaucrats, and most shockingly, by the Ontario Provincial Police, ending up with nothing.

By way of postscript, and showing that Ontario learned nothing from the Platinex situation except how to sweep serious problems under the carpet with taxpayers’ money, in March of 2012, in another gutless act of Crown surrender to unreasonable and irresponsible Indian behavior, Ontario withdrew over 23,000 square kilometers of Crown land from prospecting and staking (the Indians involved were the same KI children that drove Platinex away, only this time their victim was a company called God’s Lake Resources), in order, as the government press release stated“to give clarity to the Province’s mineral exploration industry and avoid future disagreements over the land in question.”

Then Ontario, repeating the Platinex cave-in, paid God’s Lake Resources $3,500,000 to surrender their existing mining lease and claims in the area. By so doing Ontario not only willfully created another development dead zone in that part of the province, but also engaged in what one could reasonably say was the first de facto partial evacuation and ceding of land back to an Indian band by a Crown.

All so shameful.

  1. Canadian National Railway Company v. John Doe 2013 ONSC 115.
  2. Court of Appeal decision, 2008 ONCA 533

By: Peter Best