Wayne Moonias of Neskantaga First Nation and Jacob Astaman of Kitchenuhmaykoosib Inninuwug First Nation and supporters stage a rally in front of the Ontario legislature to protest against Ontario Premier Doug Ford's policy to develop mines without their input in the Ring of Fire region, in Toronto, on July 20.CARLOS OSORIO/Reuters
Dayna Nadine Scott held the York Research Chair in Environmental Law and Justice in the Green Economy from 2018-23. She teaches at Osgoode Hall Law School and the faculty of environmental and urban change, York University in Toronto.
Industry leaders in Canada are urging governments to fill gaps toward completing a fully domestic electric-vehicle supply chain. They envision extracting raw minerals out of the ground, refining them and making cathodes, incorporating the cells into batteries, and then fully assembling electric vehicles right here in Ontario.
The apparent gap in the supply chain that the industry leaders often identify is in “mid-stream minerals processing” – cathode manufacturing, cell production and battery assembly. But actually our problems start much earlier than that. In Ontario’s Ring of Fire region, for example, the issue is access to the minerals themselves – who controls them, and who will decide if they should be mined at all?
The Ring of Fire, located in Treaty No. 9 territory in the far north of the province, is touted as a hotbed of critical minerals, including most importantly nickel, in high demand for use in batteries. According to the Australian company that owns the most significant stakes in the region, the Eagle’s Nest project there sits on one of the “largest undeveloped, high-grade nickel-copper-platinum-palladium deposits in the world.”
One problem is that the minerals are underneath what is also one of the largest unfragmented boreal forests in the world, a globally significant wetland and a massive carbon storehouse. Some say disturbing the peatlands with roads and mines would release a carbon bomb sufficient to completely offset any gains that could come from switching out our gas guzzlers for EVs.
The other major snag in the EV dream is the lack of an “infrastructural corridor” needed to get the critical minerals out, and to feed them into that supply chain culminating in Southwestern Ontario’s shiny new gigafactories and auto plants. An all-season road to the Ring of Fire, in particular, has been a major sticking point. Ontario is pushing for it (Premier Doug Ford famously said he will jump on a bulldozer himself to get it done), and some of the First Nations in the region have signed on to be proponents for the environmental assessment stage. But the Canadian government is so far sitting it out, insisting it will only commit the matching funds for the road if the environmental and social costs are not too high.
Some of the affected First Nation communities are vehemently opposed to the proposed mining road. Leaders from the small remote Anishinaabe community of Neskantaga First Nation, whose homelands in the Attawapiskat River watershed would need to be crossed, have stood up in the Ontario Legislature and declared there will be no Ring of Fire without their free, prior and informed consent. The right to this consent, after all, is enshrined in international law, the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has said it has “unequivocally” adopted.
The most significant gap in the supply chain then, the lynchpin of this plan really, is right at the start. Who controls access to these minerals? Ontario insists it alone has the authority to dispense the mining rights, conduct the environmental assessment, and grant the approvals. This is a brave face, but the Crown’s authority is significantly more limited than Ontario lets on.
Last month, a British Columbia court in Gitxaala v BC (Chief Gold Commissioner) was asked to determine when the Crown’s duty to consult and accommodate Indigenous peoples is triggered in the mineral exploration process. The court agreed with the First Nation claimants that the duty was triggered as soon as the Crown even contemplates issuing a mineral claim.
This is a crack in the legal foundation of “free-entry” mining in Canada, and there are inevitably more to come. Litigation was filed in May by 10 First Nations against the Crown for breaches of Treaty No. 9, with the central argument being that Indigenous “jurisdiction” or governing authority over lands was never surrendered in the treaty process, such that Canada and Ontario deciding things unilaterally – as they have been doing for more than a century – is unlawful.
So, about that supply chain. Let’s start with a commitment to gain Indigenous consent from all the communities whose way of life stands to be irreversibly changed by our insatiable thirst for minerals. And then we can turn to any other gaps in that EV dream.