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Corporate Rights Trump Indigenous Rights in Ontario

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Issue: 51 Section: Original Peoples Geography: Ontario Ontario Topics: Mining, Indigenous Rights

June 6, 2008

Corporate Rights Trump Indigenous Rights in Ontario

by Kim Petersen

Supporters of the KI First Nation hold a four-day camp out in front of Ontario's provincial legislature. Photo: Sylvia Nickerson

In attempts to skirt constitutionally required consultations with First Nations, mining corporations are seeking access to territory by dragging the process through the Ontario legal system long enough to bankrupt cash-strapped First Nations.

Situated about 580 km north of Thunder Bay is Kitchenuhmaykoosib Inninuwug First Nation (KIFN; Big Trout Lake). Despite winning an important legal victory on July 28, 2006, in the Ontario Superior Court – a victory that forced Ontario mining exploration company Platinex Incorporated to cease drilling operations in the territory claimed by the Cree community of 1,300 – KIFN eventually found itself, according to its press release of April 9, $700,000 poorer. Moreover, Platinex had been granted a court injunction permitting it to drill on KIFN land and forbidding residents to obstruct the company’s operations.

KIFN has withdrawn from the judicial route and stressed the necessity of a political solution. The First Nation is concerned about the impact mining operations will have on their treaty-guaranteed traditional way of life – hunting and fishing – which is dependent upon the health of the environment.

In a letter to James Trusler of Platinex dated November 2, 2007, leaders from KIFN cautioned:

“Be advised that even as we write this letter there are Kitchenuhmaykoosib Inninuwug persons on those Customary Lands carrying out their trapping, hunting and fishing activities. Any other land use activity will be an absolute interference in their pursuit of their livelihood.”

No response has been forthcoming from Platinex to confirm whether the community’s “no entry” position will be respected. Platinex had not responded to an email inquiry prior to publication of this article.

Attempts by Platinex to enter their traditional territory were denied by KIFN, and six leaders from the KIFN community – chief Donny Morris, deputy chief Jack McKay and four councilors: Samuel Mckay, Bruce Sakakeep, Darryl Sainnawap and Cecelia Begg – were sentenced on March 17 by Ontario Superior Court justice Patrick Smith in Thunder Bay to six months imprisonment for contempt of court.

The same sentence was meted out on February 15 by the Ontario Superior Court in Kingston to the former chief of the Ardoch Anishinabek First Nation (AAFN), Robert Lovelace, who defied a court order giving privately owned Frontenac Ventures Corporation access to unceded AAFN territory at a potential uranium mining site near Sharbot Lake, about 30 km west of Perth in Ontario. KIFN and AAFN say they stand in solidarity along with other First Nations against unwelcome corporate intrusion on First Nation territory.

In its February 19 press release, AAFN described the sentencing of Lovelace as “a travesty of justice.” The sentence had a chilling effect on indigenous protest: co-protesting Shabot Obaadjiwan First Nation subsequently ended its protest, and AAFN chief Paula Sherman – a single mother of three, wanting to avoid jail time – ended her protest against the mine. For AAFN, it is one in a series of struggles against interference by the province of Ontario in AAFN affairs.

In 1979, AAFN fought the province of Ontario to preserve indigenous rights to manomin (wild rice) in the Ardoch area. In 1995, the First Nation clashed with Ontario over restricting indigenous rights to hunting. The jurisdictional struggle continues. Ontario refuses to recognize Anishnabek law.

University of Victoria Law School professor John Borrows, who teaches Anishinabek Law, holds that Canada is a multi-juridical country where “Indigenous legal traditions shape and are embedded in our national legal structure.”

At the Fifth John C. Tait Memorial Lecture at McGill University in 1996, Borrows identified a “real crisis in the rule of law in Aboriginal communities. And it is not a crisis because Aboriginal peoples don’t have the rule of law; it is a crisis of legitimacy about the rule of law and Aboriginal communities. If Aboriginal peoples were able to start to see themselves and their normative values reflected in how they conduct their day-to-day affairs, I believe that would go at least some distance to diminishing some of the problems that we have.”

Since 2007, Anishinabek chiefs representing 42 First Nations in Ontario have begun to develop Anishinabek law through the incorporation of grassroots principles. Grand Council Chief John Beaucage stated, “The principles contained in the Anishinabek Nation law will have come from our engagement and consultation with our leadership and citizens.”

The AAFN claims that Lovelace is being punished for upholding Anishinabek law on AAFN territory. On top of imprisonment, the Ontario Superior Court judgment applied additional fines of $2,000 for each day that Lovelace continues to obey AAFN law rather than the court order. The AAFN community was fined $10,000 and Chief Paula Sherman $15,000, and, according to AAFN, their statement of defense, in which they challenge the constitutional validity of Ontario’s Mining Act, was ruled out. KIFN accuses Ontario Aboriginal Affairs minister Michael Bryant of actively colluding with mining corporations against First Nations: “Contrary to what Minister Bryant has been saying in the media, Ontario did not support KIFN in any way. On virtually every issue they support Platinex.”

In a March 31 prison interview with Nation Talk TV, KIFN chief Donny Morris said, “Something is definitely wrong when Ontario sits back while their [treaty] partner is to be thrown in jail.”

Uranium mining is the source of another conflict between Anishinabek, the Province of Ontario and private interests. Isadore Day (Wiindawtegowinini), elected Chief of Serpent River First Nation, situated between Sault Saint Marie and Sudbury on Highway 17, frets over the pace of private-sector development compared with the government-required consultation with First Nations: “It poses real challenges between industry and First Nations when government moves slower in First Nation negotiations than it does when pushing through proponent approvals for expropriation of Crown lands." Even worse, according to Day, “is that Consultation and Accommodation requirements are not even in the form of mutually agreed policy between the Crown and the First Nations, and yet government is approving land expropriation in favor of development in traditional lands.”

The KIFN actions, while confrontational, are hardly radical. The financially debilitating court system has required that KIFN instead call for First Nation-to-government talks.

First Nations in Ontario identify the source of the dissension as lying within Ontario government legislation. Ontario has a “free entry” system to mining claims, opening all lands claimed by the Crown – including those subject to Indigenous title claims – to staking, exploration and mining without any required consultation or permission. In other words, anyone with a prospector’s license may stake and record claims and prospect for minerals on any Crown land.

KIFN seeks talks and has offered proposals to end the confrontation, stating, “Although Mr. Bryant has not yet responded to the proposal, both communities have told him that we are still prepared to work with Ontario to set up the Joint Panel, as soon as all of the prisoners are released from jail and a moratorium on mining and exploration in the disputed territories is implemented.”

No reply was forthcoming from minister Bryant before publication of this article.

On April 30, delegates to the United Nations Seventh Session of the Permanent Forum on Indigenous Issues in New York emphasized the need for national governments to protect people over profits. Implementation of the UN Declaration on the Rights of Indigenous Peoples was viewed as crucial to this end. The Conservative Party government of Canada has been excoriated by the opposition, Indigenous peoples, and supporters of Indigenous rights for its failure to sign on to the Declaration.

Grand Council Chief Beaucage argued that the jailing KIFN leaders iterates to the world that the rights of Original Peoples are not equal to the rights of other Canadian citizens. “This,” he said, “is precisely why Canada should have been a signatory to the UN Declaration on the Rights of Indigenous Peoples.”

Assembly of First Nations Women's Council chair Kathleen McHugh deplored the arrests of Indigenous peoples:

What is being implied in this case? That economic interests trump First Nation rights? Or that economic interests trump constitutionally protected rights? This is a slippery slope, not only for First Nations but for all Canadians. This should never have gotten to the point where it went to court. The corporations involved can still do the right thing: sit down and negotiate fairly and openly with the community and their leadership. We also call on the federal government to end its silence and act responsibly by following its legal duty to ensure First Nations are properly consulted when development takes place on their lands.

On April 23, Anishinabek Nation leaders and citizens rallied at Queen's Park in Toronto to spotlight the deficiencies of the Ontario Mining Act.

Beaucage called for inclusion: "Our citizens do not want to block economic progress; we want to be part of it. However,” he added, “the rule of law in Canada – as outlined by the Constitution and the Courts – and Anishinabek Traditional Law indeed support our aboriginal right to protect our traditional territories, as well as our treaty rights to share in the wealth derived from them. As far as we're concerned, human rights will always trump mineral rights.”

On April 30, 2008, Anishinabek from Grassy Narrows First Nation began a 1,850-km Protecting Our Mother walk from Kenora to Queens Park. According to spokeswoman Chrissy Swain, the walk arose out of long frustration at the way “our people have been criminalized and imprisoned for protecting the Earth, our future generations and our rights as Anishinabek and First Peoples of this land.” The walkers hope to raise awareness of the ongoing theft and plunder of Indigenous lands and repression of Indigenous people.

The Ontario provincial government's agenda for traditional First Nations territory has maintained its allegiance to the "rights" of mining corporations instead of to the Indigenous People's millennial ties to the land. Yet, just as this article was going to publication, the Ministry of Aboriginal Affairs in Ontario announced in a press release the release of KIFN leadership from jail on May 23, pending the appeal of their sentence. Also pending the appeal, Platinex, for its part, has agreed not to enter the exploration site, and the KIFN leadership has agreed to curtail it's protests of Platinex's exploration activities.

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