April 9, 2008
To Our Allies, Friends and Supporters
From the Chief and Council of KI
Why We Are In Jail
We have been in jail since March 17. This is a small note to our
friends and supporters to explain why we are still in jail and why we
may be in jail for several more months.
First of all, we want to thank all of you for your support and
encouragement. You have given added strength to a strong community
under siege. We especially want to thank our brothers and sisters from
Muskrat Dam, Bearskin Lake, Wawakapeewin, Wapekaka, and Kingfisher Lake
First Nations, as well as Nishnawbe-Aski Nation, who have supported KI
and our allies, the Ardoch Algonquin First Nation, by suspending lands
and resources negotiations with Ontario.
Contempt of Court and Sentencing
On October 25, 2007 KI announced that we could no longer afford to
participate in court proceedings in the Platinex dispute, and then we
walked away from the court. After 18 months of litigation and
negotiations, legal options had been exhausted and our community was
virtually bankrupt. Our position had not changed: KI will not support
any exploratory drilling by Platinex and we will not negotiate with
Platinex, despite being ordered by the court to do so. Our priority is
the protection of our land, not money.
After KI walked out of court, Mr. Justice Smith issued an order which
prohibits our members and supporters from interfering with or
obstructing Platinex as they conduct exploratory drilling within KI's
traditional territory. When KI responded to the October 25 order by
publicly announcing that Platinex would not be welcome in KI's
traditional territory, Platinex brought a motion for civil contempt of
court.
On November 12, 2007 we retained Chris Reid as our lawyer. We have
given Chris very clear instructions not to appeal any orders or defend
against contempt of court proceedings. Our dispute with Ontario will
not be resolved through the courts - it must be resolved through
government-to-government negotiations between KI and Ontario.
On December 7, Platinex's contempt motion was heard by Mr. Justice
Smith in Thunder Bay. We offered no defence to the contempt of court
motion. We told the court that we would not obey the October 25 order
and would not engage in any further negotiations with Platinex. We
then were found in contempt of court. Contrary to what Minister Bryant
has been saying in the media. Ontario did not support KI in any way.
On virtually every issue they support Platinex.
On March 17, we were sentenced to six months in prison for contempt of
court. This was expected since Robert Lovelace, former Chief of the
Ardoch Algonquin FN, had received a six month sentence in a very
similar case on February 15, 2008. Again, contrary to what Minister
Bryant has been saying in the media, Ontario did not support KI on the
sentencing issue. Bryant's lawyers asked the court to severely punish
us for our "disobedience".
Appeal
Although our focus is no longer on the courts, a process to appeal the
sentences has begun. Since it could take many months before the appeal
will be heard we will also be bringing a motion in the Court of Appeal
to have the sentences suspended pending the hearing of the appeal. The
motion will also ask that all prisoners be released unconditionally and
immediately. Our lawyer has asked lawyers for Ontario whether they
have instructions from Mr. Bryant to support a motion for our immediate
and unconditional release. Ontario's lawyers have not yet responded.
After We Are Released
Both KI and Ardoch remain committed to the proposal which we made in
January for a Joint Panel to examine the causes of these disputes and
make recommendations for preventing similar disputes in the future.
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.
KI's Position on Legal Issues
Although we say that Ontario failed in its duty to consult with us
before giving Platinex permission to explore for minerals on our land,
we do not expect to achieve our goal of protecting our lands through
the courts. We learned the hard way that the courts are not always the
way for First Nations to get justice.
To encourage mining and exploration, Ontario's Mining Act is based on a
"free entry" system, which means that all Crown lands, including those
subject to Aboriginal title claims, are open for staking, exploration
and mining without any consultation or permitting required. Anyone
with a prospector's license may stake claims and prospect for minerals
on any Crown land. Once a claim has been staked the Mining Recorder
"shall" record the claims. There is no opportunity or requirement for
consultations with affected First Nation communities. Once a claim is
recorded, the prospector can conduct exploratory drilling without any
more permits being required.
It is also important to know that in the 2004 Haida case, the Supreme
Court made it clear that First Nations which have asserted rights
claims or land claims, but not have not yet proven their claims, must
be consulted and accommodated, but they cannot "veto" development on
disputed land. Consultations and accommodation can include measures to
mitigate the impacts of the project and provide some compensation for
the affected communities, but they must lead towards implementation of
the project. KI spent more than 18 months and $700,000 trying to break
out of this legal box only to find ourselves faced with an injunction
which permits drilling by Platinex and forbids us from obstructing
Platinex.
The only way to achieve what KI and Ardoch believe is a fair and just
solution is through negotiations between Ontario and the First Nations.
Negotiations could lead to land use plans which withdraw sensitive
lands from mineral staking and mining. That's why we ask that our
supporters focus on the need for political action to resolve these
disputes, not the courts.
We want to get out of jail and go back to our families, but please
remember why we are here. We need Ontario to agree that Platinex will
not be allowed to drill on our territory, and to work with us to ensure
that disputes like this one do not happened again. If we have to
remain in jail for five more months, or even five years, so be it.
Contacts:
Jacob Ostaman, Acting Spokesperson, KI Band Office (807) 537-2263
Chris Reid, Legal Counsel for KI: (416) 666-2914
