The Grassy Narrows First Nation (Asubpeeschoseewagong Anishinabek) in Ontario is wielding an array of legal tools against the federal and provincial governments to address ongoing environmental concerns.
On 4 June 2024, Grassy Narrows First Nation filed lawsuits against the provincial government of Ontario and the federal government of Canada alleging decades of mercury poisoning in the English-Wabigoon River system has violated their treaty rights.
The contamination of Grassy Narrows is considered one of Canada’s worst environmental disasters. Between 1962 and 1970, the Dryden pulp and paper mill, which is about 100 kilometers upstream from the Grassy Narrows community, discharged approximately 10 tons of mercury into the Wabigoon River. The resulting contamination destroyed much of the ecosystem and, consequently, the economic structure of the community. Since mercury bioaccumulates, it passes from one generation to the next through the placenta. Ninety percent of the population of Grassy Narrows now experiences symptoms of mercury poisoning.
“There was a time when we were self-sufficient,” said Chief Rudy Turtle. “There was a time when people went fishing and lived off the river. But mercury has been deposited in Dryden and has poisoned our river, which has resulted in making our lives very difficult. Our people’s health has been compromised. Some people can’t hold objects because they shake. Some people can’t walk properly.”
The Widespread Impact of Mercury Contamination
While the Canadian government identified the contamination in the 1970s and has poured funding into various clean-up efforts and social programs, the impact of the poisoning continues. Even today, Grassy Narrows does not have safe drinking water from home faucets.
In addition to physical illness, the destruction of the ecosystem has had a devastating impact on the social structure of the community. “There’s really nothing to look forward to,” said Chief Turtle. “It’s caused a lot of problems for our young people. To have goals, to have aspirations, to have a good outlook on the future is very difficult for them. We’re doing the best we can to address the situation, but at the same time, the situation isn’t very good.” According to recent research, 41.2 percent of girls and 10.7 percent of boys in Grassy Narrows have attempted suicide.
“One of the things that’s really heartbreaking is the youth suicide,” said Judy Da Silva, a Grassy Narrows community member. “Most of us have been impacted by suicide. I’ve had four suicides in my immediate family. It’s horrific.”
In May 2024, a report from Western University revealed that while the Dryden mill no longer dumps mercury into the river, the sulphate and organic matter it continues to discharge feed the bacteria that turn the existing inorganic mercury in the river into methylmercury, an even more potent toxic compound. As a result, mercury levels in the river system continue to rise despite there being no current mercury discharge.
Mining Act Violates Treaty Rights
According to a statement issued by Grassy Narrows First Nation, the government has violated its obligations to the community by failing to ensure the community could continue to practice traditional methods of sustenance and ways of life. Grassy Narrows therefore considers this case to be a test of the government’s commitment to the principles of truth and reconciliation.
On 11 July 2024, Grassy Narrows filed a notice of application to Ontario’s Superior Court of Justice over its intention to take the province to court over the Mining Act. The notice claims there are approximately 10,000 mining claims across Grassy Narrows territory. The notice states that since the Mining Act does not require prospectors to consult with First Nations when staking claims on traditional lands, this constitutes a violation of First Nation treaty rights and the United Nations Declaration on the Rights of Indigenous Peoples.
Grassy Narrows has also taken its case to the Inter-American Commission on Human Rights (IACHR). IACHR promotes human rights as part of the Organization of American States and addresses potential human rights violations under the American Declaration of the Rights and Duties of Man.
While the advisory opinions from IACHR are not legally binding, they can inform legal cases in other courts, and the IACHR can make recommendations involving reparations and mitigation. During the hearing, Grassy Narrows members Chief Rudy Turtle and Judy Da Silva, members of Amnesty International, and Grassy Narrows council Adrienne Telford presented the history of the contamination and the current struggles the community now faces as a consequence.
Constantine Tikhonov from Indigenous Affairs Canada defended the government’s actions in addressing the situation, noting the creation of the Mercury Disability Board, the English and Wabigoon Rivers Remediation Funding Act, and the Mercury Care home, which is scheduled to begin construction this summer. He also noted that mercury contamination was poorly understood in the 1960s, and that remediation efforts since that time have been commensurate with a deeper scientific understanding of the toxic impact of mercury in biological organisms.
Grassy Narrows’ submission to the IACHR is the latest in a series of attempts to use international legal mechanisms to enhance domestic legal claims related to human rights, the environment, and climate change. On 9 January 2023, the Republics of Columbia and Chile submitted a request for an advisory opinion from IACHR on the obligations of states to protect citizens from the impact of climate change. Recent submissions to the European Court of Human Rights (ECtHR), the International Court of Justice, and the International Tribunal for the Law of the Sea (ITLOS) are additional examples of individuals and communities using these courts to establish legal opinions that could influence their domestic claims.
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