KI Six Prisoners of Conscience

The Globe and Mail (Canada)

March 20, 2008 Thursday

Are the KI Six outlaws or prisoners of conscience?

BYLINE: RACHEL ARISS, Legal specialist in the Department of Sociology at Lakehead University

SECTION: COMMENT; TREATY RIGHTS v. MINING RIGHTS; Pg. A19

LENGTH: 963 words

As of this week, Chief Donny Morris and five other band council members of Kitchenuhmaykoosib Inninuwug First Nation sit in jail. They were sentenced on Monday to six months in prison by Mr. Justice Patrick Smith of the Ontario Superior Court in Thunder Bay.
So what "crime" did they commit?
KI First Nation leaders signed Treaty 9 in 1929 to protect their ability to feed themselves in their homeland (600 kilometres northwest of Thunder Bay) by hunting, fishing and trapping, and to prevent the encroachment of early miners and loggers. The native community saw the treaty as a peaceful way to share the land with newcomers, while remaining connected to the land's sustenance and sacredness.
But in the winter of 2005-06, Platinex, a mining-exploration company, tried to drill on land for which it had staked a claim pursuant to Ontario's mining laws but which land also is subject to Treaty 9. KI First Nation members protested on the site, preventing the drilling from proceeding. The company sued for damages and sought an injunction to prevent further protests.
It was the KI First Nation, however, that received an interim injunction based on the irreparable harm it would suffer if drilling went ahead as Platinex had planned. The injunction was granted on condition that the parties negotiate toward an agreement that would allow Platinex to drill. Ontario joined as intervenor, talks between the three parties followed, but no agreement could be reached.
The court lifted the injunction last May and imposed an agreement, proposed by Platinex and Ontario. KI First Nation members were ordered to allow Platinex onto their land to drill. When they did not do this, they were found in contempt of court.
In other words, when the people of the KI First Nation asserted their treaty rights - to secure sustenance from the land, to live on the land in accordance with their spiritual beliefs, and to share the land, as equals, with the newcomers - their leaders were jailed.
How did it come to this?
Three laws converge in this place.
The first, since time immemorial and the one that is sacred to the people of KI, is to follow the duty given to them by the Creator to protect the land for future generations. According to this law, the people of KI did not have to follow the court order. In all conscience, they could not allow Platinex to drill.
Exploratory drilling - and its accompanying noise, campsite, drill pad, machinery, fuel drums, helicopters and trucks - poses an unacceptable risk of damaging the Big Trout Lake area, a place of reliable hunting and fishing sites, trap lines, regular berry harvesting and burials of still-remembered family members.
The second law, Treaty 9, was a covenant made between equals to share the land, allowing both peoples to live peacefully together. According to this law (and the Supreme Court has affirmed that governments must consult with and accommodate first nations before doing anything that may infringe treaty rights), it is the Ontario government and Platinex that have to do things differently. Jailing the KI leadership will not lead Ontario to properly consult with and accommodate the community's concerns - it may do the opposite.
The third law is Ontario's Mining Act, with its outdated free-entry staking system. The contradiction between the Mining Act and KI's treaty rights is key to understanding why the native leaders are in jail.
The act allows anyone to stake a claim anywhere on Crown land and, as soon as it is filed with the government, it is valid. The act does not mention that all Crown land in Ontario is governed by treaties with first nations people. It doesn't even include the minimal first step of requiring companies or the ministry to communicate with first nations about exploration. The system makes money for Ontario and, especially, for mining companies.
Ontario has long resisted fulfilling its treaty promises, perhaps hoping that impoverished remote communities will not fight for their rights. Its pattern has been to resist until there is a crisis, until the damage of broken trust with aboriginal peoples has been entrenched - Ipperwash and Caledonia are the most recent and most publicized evidence of this pattern.
Ontario has failed in its duty to consult, accommodate and, more important, to reconcile with first nations communities across the province. First nations people and their supporters are tired of this deliberate failure.
Many aboriginal and non-aboriginal people in this province want to find a way forward, out of the poverty, racism and despair facing many first nations communities, toward living together peacefully and respectfully.
Some of these folks were at the courthouse in Thunder Bay on Monday. Others attended the courthouse in Kingston when Bob Lovelace, a member of the Ardoch Algonquin First Nation, was sentenced in February to six months in jail for opposing mining exploration on his community's traditional lands. We will not go away.
The KI Six have been in jail since Monday. They are in jail because they believe they have a spiritual duty to protect the land for future generations, and they believe that drilling the land is not protecting it. They are in jail because they believe they have legally recognizable treaty rights that remain meaningful as long as they can maintain their homeland in its pristine state.
The KI Six are prisoners of conscience.
Clearly, the dispute between the KI First Nation and Platinex is a crisis. But a Band-Aid solution from Ontario is not enough. It is time for all of us, aboriginal and non-aboriginal, to stand up with the KI community and demand justice, and to continue demanding justice until we have true reconciliation between aboriginal and non-aboriginal people in Ontario.