Justice Out of the Deep Dark Depths-for now

The Globe and Mail (Canada)

May 29, 2008 Thursday

Aboriginals gird for a fight as court win in Ontario bolsters cause

BYLINE: CHRISTIE BLATCHFORD, cblatchford@globeandmail.com

SECTION: COLUMN; JUSTICE: THE KI-6; Pg. A1

LENGTH: 1082 words

If ever you wondered why there is a National Day of Action for Canada's aboriginal people - it's today - you should have been at the Ontario Court of Appeal yesterday.

There, as a packed courtroom erupted in applause and incredulous shouts of joy, lawyer Julian Falconer leaned over and spoke quietly to one of the aboriginal leaders who are his clients.

"Savour this," he said. "Once in a while, out of the deep, dark depths, comes justice."

The immediate cause for celebration was a late-in-the-day decision which formally sprang from prison - and put on temporary hold some enormous court-imposed fines - seven Ontario leaders from two different first nations waging different but similar battles over mining and exploration on their traditional territories.

The seven had been convicted of contempt of court for failing to agree to obey injunctions that prohibited them from interfering with two private companies - Platinex Inc. and Frontenac Ventures Corp. - which respectively hold platinum and uranium claims on the disputed land and want to begin test drilling.

Five men and a woman from the remote northwestern Kitchenuhmaykoosib Inninuwug First Nation (they are called the KI-6 for short) were released late last week after spending only several days each of their six-month sentences behind bars.

But the seventh man, Robert Lovelace, a 60-year-old Queen's University lecturer and former chief of the Ardoch Algonquin First Nation in Eastern Ontario, has been in jail since March, and recently just ended a hunger strike.

He is a fellow of such warmth and dignity that he is fondly regarded even by his jailers and the court security officers around him yesterday, who shook his hands and even gave him a hug.

The three-member court - composed of Marc Rosenberg, Kathryn Feldman and James MacPherson - upheld an appeal of the group's sentence, which appears to be the harshest for a contempt offence that anyone involved in the case can remember, and reduced the six months to time served.

With submissions running all day, Judge Rosenberg cautioned that the judges' reasons will be released later and that their decision shouldn't be interpreted as necessarily meaning the court agrees that either the jail terms or fines were inappropriate. But if the trio's comments and questions of the lawyers are any indication, they were troubled by the severity of the sentences, and perhaps by more.

If it was a great win for the native side, particularly for the exhausted Mr. Lovelace, in that it allowed the leaders to emerge with principles and pride intact, it was also so unusual as to be rare.

I am new to the world of the complicated native-government relationship, but even in my short time, looking at a handful of cases here and there and dipping in a toe now and then, there is a depressing common theme that runs through the lot and it is this - in the contest between the state and first nations, the state almost always wins.

As with any such contest between ordinary citizen and government, the state has endless resources and bottomless pockets. But many of the bands on the other side of the courtroom depend upon lawyers who work for free (or, as in the case of Christopher Reid, one of the lawyers for the Ardoch Algonquin, for meat and fish), or who squeeze in their aboriginal cases between those which actually pay the bills. Few citizens are generally as impoverished in this rich country as natives.

The size of the various legal tables yesterday spoke volumes. There was Mr. Reid and Sarah Dover at one; Mr. Falconer, one other lawyer and an assistant representing the Nishnawbe Aski Nation, a political organization of 49 first nations in Northern Ontario; Mary Eberts by herself for the Native Women's Association of Canada, and for the two exploration companies, Neal Smitheman and Tracy Pratt.

But at the Ontario government table were three gowned Crowns, led by Malliha Wilson, and behind and along the wall beside them, as many as six various other cheerleaders from various arms of the government.

Interestingly, despite Ms. Wilson's efforts to portray the government as a peace-broker wanting only to bring the warring parties together, it was hard not to notice that as various lawyers representing the natives spoke, particularly Mr. Reid, she and Ms. Pratt would often roll their eyes upward in unison.

In fact, Mr. Falconer, Mr. Reid, Ms. Dover and Ms. Eberts all said that the government should be doing much more than mediating the dispute between the companies and the natives. There is a well-established principle out of the Supreme Court of Canada which holds that in any dealings with aboriginal people, the Crown's very honour is at stake.

Indeed, Mr. Smitheman began his submissions with a succinct, "This is not our file. We're not the villain. We're the victims." And moments after his release, Mr. Lovelace said precisely the same thing: "Our fight is not with the mining companies. Our fight is trying to get the Crown to honour its obligations."

Mr. Lovelace has long called government's dealings with natives - and by government, he means government in all its forms, everything from fish and game laws on up - tantamount to "civil indifference." I think it is much more egregious than that.

Native pleas for genuine negotiation - whether in these specific cases, where they want the provincial Mining Act, which allows private companies to stake mineral rights on anyone's land without having to bother with getting permission, at least on the table for review, or in the sweeping land claims which drone on for decades - go unheard. Their letters to everyone from premiers to department heads and provincial coroners go unanswered. Their reports on poverty and suicide rates get no response.

And at the end of it all, in various courts across the country, government lawyers mouth words like "reconciliation" and "conciliation" with an ease that their collective daily conduct - they appeal every loss, fight on every technicality, argue for the harshest punishments, stall and obfuscate - utterly belies.

A National Day of Action? After yesterday, a national day of insurrection sounds more in order.

Mea culpa: In a recent column, I said the Indian Claims Commission was mentioned in a Federal Court of Canada case that dealt with extraordinary delay of a native grievance. In fact, the process is sufficiently glacial that the band's claim hasn't yet made it to the ICC, which deals only with rejected claims.