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Garden River intervenes in steel mill's insolvency proceedings

The First Nation says it's never been consulted, accommodated or even notified of Algoma's proposal for a new port
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20160603 Essar Steel Algoma KA 02
Dock at Essar Steel Algoma (Kenneth Armstrong/SooToday)

Plans for a new $55-million port facility in Sault Ste. Marie have drawn Garden River First Nation into Essar Steel Algoma's insolvency proceedings.

The 2,300-member nation says the first it heard about the proposed new dock system was from Anshumali Swivedi, chief executive officer of Port of Algoma Inc., which signed a unity pact two years ago with Garden River, Batchewana, Mississauga and Thessalon First Nations.

Garden River says it's never been consulted, accommodated or even notified of Algoma's proposal for an alternative port.

"Regardless of how this Companies' Creditors Arrangement Act (CCAA) proceeding began and has been conducted so far, the pith and substance of this proceeding is now a matter of constitutional law, the honour of the Crown, and aboriginal and treaty rights," Garden River's lawyers say in a court document.

"Urgent action must be taken by this court to prevent irreparable harm from being done to the Aboriginal and treaty rights of Garden River First Nation and a precedent being set that would set back reconciliation and constitutional law in Canada by 20 years."

"This court must not allow... Essar Steel Algoma Inc. to, intentionally or not, circumvent or weaken the Aboriginal and treaty rights of Garden River First Nation," the document states.

One year before it filed for protection from its creditors in November 2015, the Sault steelmaker transferred control of its Sault port facilities to its ultimate parent company, Essar Global Fund Ltd.

That transaction leased the port facility for 50 years to Port of Algoma Inc., a company owned 99 per cent by Essar Global and one per cent by the City of Sault Ste. Marie.

However, Ontario's Superior Court of Justice ruled that was unfairly prejudicial to the steel mill's trade creditors, employees, pensioners and retirees.

The court granted Algoma the option of terminating the port transaction if it repays loans provided by GIP Primus LP, which provided much of the US$150 million term loan that allowed Port of Algoma to acquire Essar's port assets.

Now, GIP is asking the court to stop Algoma from building a new port, and Garden River is supporting GIP's request.

The following are excerpts from an affidavit sworn last month by Garden River Chief Paul Syrette:

Garden River First Nation [GRFN] is an Anishinaabe nation, which has occupied, governed and protected Bawating (the area that is now known as Sault Ste. Marie, including the St. Marys River) and the surrounding areas for thousands of years.

GRFN's traditional territory extends southeast to near North Bay, around the northern shore of what is now known as Lake Superior and west to around Thunder Bay. We refer to these as our traditional territories.

My ancestors have lived in our traditional territories since long before European settlers came to this land. Bawating is, and always has been, a meeting place for our people and for other related indigenous peoples, including those whose ancestors signed the Robinson-Huron and Robinson-Superior Treaties.

In 1850, Chief Shingwauk signed the Robinson-Huron Treaty, which our people agreed to share our territory with the European settlers.

In exchange for allowing the settlers to live on our territory, our ancestors moved to what is now the GRFN reserve and were guaranteed the right to continue engaging in our traditional practices, including but not limited to the right to hunt, fish, trap, gather medicinal plants and engage in our spiritual practices throughout our traditional territories.

GRFN's reserve is located on the St. Marys River, approximately 10 kilometres downstream of the Port of Algoma and Essar Steel Algoma.

GRFN has suffered through centuries of colonialism and efforts to extinguish us, including but not limited to the past and ongoing taking of our lands and resources, residential schools and the Sixties Scoop.

The basis of our relationship with each other and with others is our relationship with the environment. It is a fundamental principle of our belief system that we have a sacred duty to care for and protect the land, water and air.

When we insist on ensuring that the duty to consult and accommodate is discharged, we do so because we are responsible for making sure that our descendants, seven generations from now, are able to exercise their rights in our traditional territories.

Members of GRFN continue to fish in Bawating and the rivers, streams and other water bodies which flow from it. I have been told by GRFN traditional knowledge-holders, and do believe, that the health of the connected water bodies in our traditional territories are all related, and impacts on one will cause impacts on the others.

GRFN never surrendered the riverbeds and waterways in the treaty area. GRFN has always stated clearly that we retain ownership (what the Crown calls 'aboriginal title') of the riverbeds and waterways including the river in which Essar Steel Algoma wants to build its proposed port.

Over the last hundred years, the health of Bawating has suffered greatly, and industry has come, polluted and not cared for the environment. The river is now sensitive and must be brought back to health. Further development done without proper protection and mitigation measures in place would cause irreparable harm to the river and Bawating generally.

Prior to any decisions being made or work being done to begin constructing the proposed port, GRFN requires that an environmental assessment take place.

The environmental assessment that precedes a project like the construction of the proposed port is a crucial opportunity for GRFN to review the project specifications, design, measures put in place to mitigate impacts to GRFN's rights and the environment, as well as assessing the need for the project and financial viability of the project, including but not limited to the proponent's ability to provide compensatory accommodation.

Any action taken by Essar Stee; Algoma or by this court which would have the effect of avoiding or minimizing the duty to consult and accommodate and the regulatory steps which would normally apply to this project, or which would cause the Crown to breach its constitutional duty to consult and accommodate, would have a serious impact on the ability of GRFN and the members of GRFN to exercise our inherent aboriginal and treaty rights, and would be a substantial step backwards on the road to reconciliation.



David Helwig

About the Author: David Helwig

David Helwig's journalism career spans six decades beginning in the 1960s. His work has been recognized with national and international awards.
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