Posted: June 09, 2008
by:
* http://www.indiancountry.com/content.cfm?id=1096417468
Seven leaders freed by Ontario court of appeal
TORONTO - An Ontario appeals court has set aside the six-month jail
sentences imposed on seven aboriginal leaders who were incarcerated for
refusing to cease protesting mining exploration in their traditional
territory.
''Justice was done,'' said Bob Lovelace, former chief of the Ardoch
Algonquin First Nation.
He, along with the ''KI Six'' - Chief Donny Morris and five other members of
the Kitchenuhmaykoosib Inninuwug (Big Trout Lake) First Nation - walked out
of the Osgoode Hall courthouse with their freedom in May after a daylong
hearing before three Ontario Supreme Court justices.
Lovelace vowed to continue his fight, even if it meant further jail time.
''We plan to continue to protect our land,'' he said. ''I'm hoping from this
whole exercise the government will want to engage in some meaningful
discussion that will lead some place that won't be back to jail.''
''I think history has been made,'' said KI council member Sam McKay. ''I
think it's time the government starts taking aboriginal issues really
seriously. I think we have an opportunity to do relationship-building
between the government and aboriginals, but the government has to be willing
to do their part.''
A possible way forward was spelled out a few months ago in a joint proposal
from the KI and Ardoch Algonquin First Nations that called for a moratorium
on mining exploration pending the recommendations of a joint panel to be set
up with representatives from the government and the two communities. That
would lead to negotiation of an interim measures agreement that would
provide for land withdrawals and joint decision-making on resource
extraction.
Aboriginal Affairs Minister Michael Bryant agreed to a joint panel with KI,
but refused to include the Ardoch Algonquins in the deal - which meant that
KI refused to be part of it.
Michael Gravelle, minister of Northern Development and Mines, has refused to
heed calls for a moratorium while new rules are worked out.
Calls for reform of the underlying legislation, Ontario's mining act, based
on a free-entry system that allows claims to be staked and exploration to
start without environmental assessment or the consent of affected First
Nations or landowners, have also come from many parties, including Robert
Kennedy Jr.
''I have great respect for the way in which these community leaders have
faced threats to their traditional lands,'' the Natural Resources Defense
Council lawyer wrote in a May 22 letter to Premier Dalton McGuinty. ''I know
that for these communities, the land and waters of their traditional
territory is their life, their livelihood and the future of their
children.''
While McGuinty has said that it's time for the mining act to be reformed,
the government has offered no details of its priorities. Gravelle spokesman
Anne-Marie Flanagan said the government is carrying out full consultation
with affected stakeholders.
''I can't give you any timetable,'' she said. Asked whether an end to the
free-entry system is under study, she added, ''I can't get into speculation
of what the changes might be.''
Anna Baggio, of CPAWS Wildlands League, said talk of reviewing the mining
act is meaningless unless free entry is replaced by a permit system that
enshrines the rights of aboriginal communities and landowners to say ''no''
and implements rules for development that protects the values of ecosystems
prior to mineral tenure being handed out.
The government's inaction is evidence that the Liberals are afraid of a
backlash from the mining industry, she said. But this is the time to show
leadership because, if left unresolved, the jailing of leaders who stand in
the way will continue.
''If you don't have the right to say no, you don't have any rights at all,''
Lovelace said.
In Ontario's booming mining sector, uncertainty rewards unprincipled
behavior.
New Democratic Party leader Howard Hampton cited the case of a company that
initiated talks with Neskantaga First Nation before staking a claim - only
to be outflanked by a second company that staked the claim, cleared the land
and obtained government approval.
Nevertheless, ministers like Gravelle and Bryant and their representatives
insist that consultation is a necessary part of exploration.
All the while, First Nations such as Gull Bay, Webequie, Eabametoong and
Marten Falls are coming forward to complain that claims are being staked
without their knowledge or consent - unsurprisingly, since that's what the
mining act sanctions.
The judges were careful not to tip their hand as to the rationale for
overturning the harsh penalties - including fines as high as $25,000 in
Lovelace's case - imposed by lower-court judges in Kingston and Thunder Bay.
The reasons will be released later, they said.
The ruling will be important. The issues are critical to resource
development and aboriginal self-determination - whether accommodation of the
right to say no is implicit in the Ontario government's legal duty to First
Nations, what weight should be given to aboriginal law, and whether there
should be a check to the criminalization of protest.
One thing was clear. Ontario government lawyer Malliha Wilson, who supported
release of the seven appellants, conceded under questioning by the judges
that the six-month sentences bore no relation to the ''couple of weeks''
applied to previous first-time offenders in the context of political
protest.
The judges zeroed in on the contrast between Wilson's statement that the
government sees itself a conciliator and the position taken in January by
Owen Young, the government lawyer at the sentencing hearing for the KI Six,
who called for ''a financial penalty that hurts.''
''The word 'hurts' and the word 'reconciliation' are polar opposites,''
Justice James MacPherson pointed out.
