Saskatchewan’s Kawacatoose First Nation is pressing the province to meet its duty to consult regarding BHP’s Jansen Potash Mine. Late last month, Minister of Environment Dustin Duncan gave the Jansen mine the green light, despite failing to meaningfully consult with Kawacatoose about their concerns.
The Province has taken the position that the Jansen mine will not impact Aboriginal and Treaty rights because the project is occurring largely on private land and is not expected to have off-site impacts.
Kawacatoose Chief Darin Poorman disagrees. “It is inconceivable that one of the largest potash mines in the world would not have an impact on the First Nations who continue to exercise Aboriginal and Treaty rights in the area,” he said. “Our community is just 55 km from the mine site. Of course it’s going to have an impact on Kawacatoose.”
Among other things, Kawacatoose is worried about the Jansen mine’s effect on water sources in the area, the disruptions it will likely cause to wildlife habitat and migratory patterns, and the impacts of this on hunting and gathering rights. The impacts are significant considering the cumulative impact of development that is already affecting Kawacatoose’s rights in the area. Courts have made it clear that even if a project’s impacts on constitutional rights are cumulative or indirect, they still require consultation.
To date, there has been no Crown consultation to determine how Kawacatoose’s concerns might be accommodated, whether by making changes to the project or by engaging in a revenue sharing agreement to compensate for the loss of lands and resources guaranteed by Treaty 4.
“The Province has no idea how we view our rights, they do not know how we traditionally used the land in our territory or how we use it now because they have not met with us,” said Chief Poorman. “It is simply not acceptable. The treaty our ancestors signed guaranteed us a right to a livelihood, but with each big project, each new development, our right to that livelihood is eroded. We will not sit idle while our lands and resources are taken up to the point where we can no longer exercise our rights.”
Minister Duncan’s environmental approval does not mean Saskatchewan has met its constitutional duties. The purpose of the duty to consult is to facilitate reconciliation and to help parties avoid taking their disputes to court. Kawacatoose is hopeful that the province will be mindful of its obligations so the parties can work together on what the future of potash in Saskatchewan will look like in the Treaty 4 territory.