Disclosure?

Happy New Year!

In last year’s final entry of Noopemig, Ontario and Platinex had come to an agreement without the involvement of Kitchenuhmaykoosib Inninuwug (KI) where Platinex would be paid $5 Million dollars, Mediation Costs and 2.5 %  Royalty on any mining that will occur within the next 25 years in the disputed zone at Nemeguisabins Lake in Kitchenuhmaykoosib Inninuwug territory. Ontario and Platinex both released statements on December 14, 2009 announcing the deal.

Platinex Inc. announced that “it has entered into an agreement with Ontario….where Platinex has agreed to surrender its claims and leases and settle the outstanding litigation ….in exchange for an upfront sum totaling $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.”

The Ministry of Northern Development, Mines and Forestry on the same day said, “ As part of the settlement, Platinex will drop its lawsuits against the Crown and KI, and surrender all its mining claims and leases at Big Trout Lake. In return, Platinex will receive $5 Million dollars and a potential future royalty interest. The government will withdraw these lands from staking and mineral exploration.”

On December 18, 2009, I received an email that there was to be a conference call to discuss the deal with “Kitchenuhmaykoosib Inninuwug and the Individual Defendants.” Apparently, Section 22 of the Settlement Agreement provides that the parties are to keep the terms of the Settlement Agreement completely confidential except for….

(v) disclosure to Kitchenuhmaykoosib Inninuwug and the Individual Defendants.

As one of the original “Individual Defendants,” I can receive a hard copy of the Settlement Agreement providing I first sign a confidentiality agreement. The form that was sent to me reads, “I agree not to disclose, directly or indirectly, the Settlement Agreement to any person, other than those persons to whom this Settlement Agreement may be disclosed under Section 22 of the Settlement Agreement and who have also signed a Confidentiality Agreement relating to the Settlement Agreement.”

As one of the “Individual Defendants,” I have not had chance to review the Settlement Agreement between Ontario and Platinex and I was under the impression that this was a done deal. I am unclear why Kitchenuhmaykoosib Inninuwug and the Individual Defendants are required to review this agreement under the cover of confidentiality when the two (2) parties have already disclosed to the general public what the terms of the agreement were through their press releases? Moreover, Kitchenuhmaykoosib Inninuwug had no say or input into the agreement. For whatever reason,  KI is expected to review the Settlement Agreement under a veil of secrecy.

Legally, the agreement does not require KI’s approval and the agreement will be implemented whether KI approves it or not. Apparently, according to legal counsel, the agreement requires that “KI be asked to drop its legal action against Platinex and in exchange for Platinex dropping its action against KI.”  The Kitchenuhmaykoosib Inninuwug Chief and Council have decided that they will seek “input through a community meeting before they sign a release to drop KI’s legal action against Platinex.”

We cannot forget that KI left the court process in October 2007 for financial reasons.

One of the most important lessons out of this conflict is that the principle of Free, Prior and Informed Consent (FPIC) be adopted in provincial and federal law throughout Noopemig. Consultation is not something to gloss over. Governments must be held accountable and FPIC must be the standard. In addition to control, First Nations must also meaningfully benefit from activities that go on in Noopemig.

The formality of being consulted to a foregone conclusion appears to bring the process of  consultation to nothing but an illusory conclusion achieved through manipulation at all levels.  Kitchenuhmaykoosib Inninuwug, through their lawyer, will be reviewing the Settlement Agreement the 3^rd week of January, 2010.

As the funds get ready to flow out of Kitchenuhmaykoosib Inninuwug territory, the impacts of the resulting financial burden where the community cannot maintain its equipment  is evident as the sound of water bursts through frozen pipes mingling with the cries for fairness and justice throughout Noopemig!