Friday, July 25, 2008

Will Attawapiskat Chief and Council Attend De Beers Victor Mine Opening or Will Community Petition To Review IBA Give Them Pause

And best wishes on his upcoming retirement to De Beers corporate
warrior Joanathan Fowler. Jonathan goes back to the Monopros( why be
upfront and call your exploration arm De Beers when you can use the
name Monopros) days when he headed up De Beers exploration office in
Thunder Bay. Talk about a hardship post in the city of failure. I
understand, this will be Jonathan's last Attawapiskat party. Jonathan
enjoyed a few happy meetings with KI folk back in the days when De
Beers and Platinex had a collaboration going on community consultation
in KI. De Beers sampled the KI lands but withdrew following the
declaration of the moratorium.

Insiders will recall that De Beers funded the October 2005 meeting
which resulted in Chief Donny Morris saying "what part of No doesn't
Ontario understand" and a moratorium declaration by a number of far
north communities. The De Beers meeting with Far North Chiefs back in
05 set the stage for what followed. Classic unintended consequence.

Conspiracy theorists have floated the idea that De Beers deliberately
provoked the moratorium to "sterilize" the area for competitors. De
Beers are smart ( the Microsoft of mining) but not that smart. Let's
remember a lunatic found the diamonds in the NWT while they were stuck
at Blackwater Lake. Too clever by half.


De Beers to Open Snap Lake, Victor Diamond Mines

De Beers Canada will open the Snap Lake diamond mine July 25, and the
Victor diamond mine July 26. Snap Lake will become the first De Beers
mine outside of southern Africa, employ 560 people, and will have an
annual production rate of 1.4 million carats. Victor will employee 400
people during production and will have an annual production rate of
600,000 carats.

Thursday, July 24, 2008

Bad Barrel ( Mining Act/Indian Act) Bad Apples( MNDM, Mining Cos/INAC) and Barrel Makers( McGuinty/Bryant, Strahl and predecessors dating back to Treaty)

April 06, 2007
Bad Apples, Bad Barrels, Bad Barrel Makers

By Mimikatz

If you know of Philip Zimbardo, it is probably in connection with the
Stanford Prison Experiment, undertaken in 1971. In that experiment,
Zimbardo and others took carefully screened, normal college students
and randomly assigned them to be guards or prisoners in a mock prison
set up in the basement of the Stanford Psych Department. Nothing
happened at first, but after 36 hours the prisoners revolted. The
guards asked Zimbardo what to do. He responded, "It's your prison," but
cautioned them against using violence. After 6 days the situation
became completely out of control, with brutality by the guards and
psychological breakdown among the prisoners. But only when one of his
former graduate students, after seeing what was happening, tearfully
told him she was not sure she wanted to have anything more to do with
him did he decide to stop the experiment.

Fast forward to 2004. Zimbardo became an expert witness in the trial
of Ivan "Chip" Frederick, one of the MPs accused of abuses at Abu
Ghraib, where the Stanford Prison Experiment was in effect replicated
in real life. This gave Zimbardo access to documents, photos and
reports about Abu Ghraib and caused him to ponder the lessons that were
not learned from the Stanford Experiment.

The result is The Lucifer Effect: Understanding How Good People Turn
Evil. In this long, difficult but very informative book Zimbardo
explains both how good people come to do incredibly evil acts but why.
The core of the book is a very detailed description of the Stanford
Experiment, but Zimbardo also looks at situations such as Rwanda and
the Holocaust, along with Abu Ghraib. In a nutshell, Zimbardo argues
that we do not have the stable personalities we often think we have;
our actions are in fact much more dependent on the situations we find
ourselves in. Under the "right" conditions, almost anyone can perform
evil acts. Contrary to the typical medical and legal model, such
things as Abu Ghraib are not the result of a few "bad apples," but
happen because of "bad barrels." As the Stanford Experiment had shown,
combining absolute power, secrecy, lack of clear rules and supervision,
and boredom could create a situation in which pacifists became brutal
guards.

But are "bad barrels" accidental happenings? Zimbardo pushes his
analysis further to ask questions about the "barrel makers" (himself
included) who allow such conditions to exist. Do certain types of
systems encourage "bad barrels?" In the next to last chapter he
essentially puts the Bush Administration on trial for the conditions at
Abu Ghraib.

But if commission of evil acts is at least as much situational as
dispositional (based on the individual personality), what can be done
to resist evil? As Zimbardo shows through his own and his colleagues'
avid participation in the Stanford Experiment until challenged by a
former student, this is a very complex issue. He and all of the other
researchers got sucked into the experiment, as it deteriorated slowly
over time, thrilled at the behavioral changes they were witnessing.
She came in as a substitute on Day 6 when another researcher had to
leave for a family emergency. Moreover, she had become romantically
involved with Zimbardo once she finished her PhD. Coming into the
experiment somewhat unwillingly, suddenly exposed to the degradation
that had built up over days, she was horrified both at what she saw and
at Zimbardo's reaction when she confronted him. (He told her she would
never make a good researcher if she got so emotional.) Ultimately he
realized that she was right, that he and the others had also
internalized the institutional values of the experiment to the
exclusion of their humanitarian values, and he called a halt to the
experiment. (Their relationship survived and they are evidently still
married.)

The implications of this book, especially his observations on what
makes and what prevents situations like Abu Ghraib, and how it relates
to our resistance to the Bush Administration and the evil in our
society, are considerable. Delineating the positive lessons will take
another post. Suffice it to say that no one can look at himself or
herself with quite the same smugness after reading this book.

Why Governmental Change is Slow and Hard

There are also adverse selection effects; a notorious example is that
individuals who are particularly risk-averse often seek jobs in the
public sector. The result, as economists have long known, is that most
organizations (and especially public sector ones) are excessively
cautious; they take many fewer risks than a rational economic agent
would in similar circumstances.

Wednesday, July 23, 2008

Northern Miner, Climate Change Sceptics, First Nation Consultation Advocates and Revenue Sharing if Its Revenue Neutral to Industry

Editorial: Miners need to be wary of Ontario Premier
630 words
23 July 2008
eSource Canada Business News Network
English
Copyright 2008 Business Information Group. All Rights Reserved.

Mid-July saw the surprise announcement by the Ontario government that it would "protect" at least 225,000 sq. km, or roughly half of the province's boreal forest.

The scope of the proposal is broad. It includes: banning economic activity within at least half the province's boreal forest; holding meetings across the province with every conceivable stakeholder to come up with new land-use plans; giving local aboriginal communities veto power over proposed economic activities; revamping the way resource businesses are taxed, including more taxes going to local aboriginal communities; and building up bureaucracies to create and implement land-use plans.

The government also restated its intention to rewrite the province's mining act before 2010, including changing the process for staking and exploration. It starts reviewing the act this August.

Given that you can't trust anything Premier "I-won't-cut-your-taxes-but-I-won't-raise-them-either" McGuinty says, and that his professed environmentalism is driven by pure political expediency, figuring out what this latest proposal means for miners in Ontario is tricky.

On the one hand, McGuinty's shabby treatment of De Beers as it developed Ontario's first diamond mine -- jacking up the royalty rate at the eleventh hour, after construction was well under way -- shows the premier he has no qualms about raiding a mining company's coffers when the political fallout is minimal (after all, few hearts bleed for De Beers).

Of more concern to the little guy, McGuinty's crushing of landowners and developers who tried to fend off his government's creation of the greenbelt around Toronto shows the premier has little regard for basic property rights.

Be forewarned: McGuinty holds the creation of the greenbelt as a model for his boreal forest plan.

On the other hand, it will takes years just to hold discussions with interested parties about how to establish a framework for more discussions.

McGuinty himself says the whole process could take up to 15 years. The thing may never happen.

It looks like much of the seeming haste to come out with this latest boreal-forest proposal is fuelled by the provincial government's larger agenda to boost taxes and increase the size and reach of government by using the global warming hoax as a pretext.

McGuinty is pitching Ontario's boreal forest as a major carbon sink that presumably could be used to the provincial government's benefit during upcoming rounds of carbon-emissions trading it is committing itself to.

It's remarkable that, as more people realize that there isn't a single bit of evidence that human activity is causing dangerous global warming, we see the rhetoric from the theory's proponents is getting more hysterical: in promoting this boreal forest plan, McGuinty is now saying with a straight face that we can expect Ontario to be 8 degrees Celsius warmer within a century.

This kind of foolish talk is another great argument for small government.

More pertinent to the mining industry is the very real revamping of the provincial mining act.

Now is the time for miners to keep up the lobbying for the maintenance of a sensible regulatory regime for mineral exploration and mining in the province.

In particular, the mining industry needs to keep pushing the government to live up to its obligation to consult with aboriginal communities prior to the granting of exploration rights to mining companies, as it so spectacularly failed to do in the messy case of Platinex and the Kitchenuhmaykoosib Inninuwug (KI) First Nation.

We like the idea of local communities getting more of the taxes from resource industries active in the area, but only if it matches simultaneous reductions in provincial taxes.

Former Bryant Advisor Predicts Quiet Revolution in Indian Country, Let's Not Forget that Revolutions Are Made By Revolutionaries and Not Politicians

Quiet revolution in relations with natives TheStar.com - Opinion - Quiet revolution in relations with natives
July 23, 2008
Douglas Sanderson

[Douglas Sanderson, BA (Hons) (Simon Fraser University) 1998, JD (Toronto) 2003, LLM (Columbia) 2004, hails from the Opaskwayak Cree Nation. In 2004-2005 he was the Senior Policy Advisor to Ontario's Minister Responsible for Aboriginal Affairs, the first Aboriginal person to hold that position. From 2005 to 2007, Douglas served as a Senior Policy Advisor, to the Attorney General of Ontario, the Hon. Michael Bryant. Douglas' work as a policy advisor included files on Aboriginal land claims, application of the Powley decision to Ontario's Métis, reform of Ontario's Human Rights complaints system (the Human Rights Code Amendment Act, 2006), and issues related to self governing professions, victims of crime, and brownfields redevelopment. Douglas' current interests relate to the theoretical foundations of Aboriginal law, and a return to first principles as a way of righting historic injustices. In the 2003/2004 academic year, Douglas was a Canada-US Fulbright scholar at Columbia University in the City of New York. Contact: d.Sanderson@utoronto.ca]

On July 14, Premier Dalton McGuinty announced Ontario's intention to protect half of the great northern boreal forest.

At the same time, the premier also announced that any new mining in the North would require the consultation and consent of affected aboriginal people. This news was met with cautious optimism by First Nations, and a surprising degree of acceptance by the Ontario Prospectors Association.

In the past six months, Ontario's First Nations and the mining industry have gone head-to-head in court, with several First Nations leaders being sent to jail for protesting mining companies' attempts to prospect or to test drill on the traditional aboriginal lands.

First Nations people are asserting the right to be consulted – rights that have been confirmed by the Supreme Court of Canada – and which now require that aboriginal people be involved prior to any government action that could materially affect their aboriginal or treaty rights.

Ontario's Mining Act was passed into law in 1873, and the basic structure of the act remains unchanged. Under the act, prospectors can stake claims on Crown land, and then the prospector registers the claim, thereby earning the right to mine.

However, most crown land in Ontario is also in the traditional land base of First Nations, and so the Mining Act's outdated provisions have collided head-on with a developing jurisprudence on the duty to consult.

As it stands, the Mining Act grants rights to prospectors regardless of whether or not First Nations have been consulted, and the results have played out in Ontario's courts and in fevered protests pitting mining companies against First Nations.

McGuinty intends to change all that by announcing the province's intention to revise the Mining Act. Because the act will affect the aboriginal and treaty rights of Ontario's First Nations, First Nations will have to be consulted.

The act will have to require early consultation with affected First Nations, and so McGuinty's announcement is, essentially, that he intends to revise the Mining Act so it complies with decisions of the nation's highest court. The decision to revise the Act is neither revolutionary nor prescient – it is simply a matter of doing what the law already requires.

Lost in the announcement, however, was the province's intention to create a stream of revenue sharing that would accompany any mining in the North and that will be paid to affected First Nations. The revenue will be paid to First Nations by the province out of licensing and other fees, and not by mining companies themselves.

At the announcement, McGuinty said that the province is already beginning to set aside money for this revenue-sharing scheme – a sign that Ontario is serious.

This, combined with Impact Benefit Agreements – private contracts between resource companies and First Nations to mitigate the environmental impact of development, to require job creation for aboriginal communities, and sometimes oversight of the projects themselves – could provide a much needed influx of jobs, income and stability in Ontario's north country.

It is easy to pan small steps, but it's important to remember it was less than 15 years ago that disputes with Indians in the province were settled the old fashioned way: by the Tactical Response Unit which shot Dudley George to death.

The premier's announcement to revise the Mining Act is a small step forward, not a giant leap, but it is part of a pattern of small steps taken by the premier and Aboriginal Affairs Minister Michael Bryant which together signal that, as between First Nations and the province, we may already be in the midst of a quiet revolution.

Douglas Sanderson is a visiting scholar and fellow in aboriginal law at the University of Toronto.

Monday, July 21, 2008

Platinex remains in Bizarro World( see Superman comics) Platinex "rights" to 57, 400 acres on KI lands are imaginary.

Platinex Supports Go Green Ontario Initiative

TORONTO, July 18 /CNW/ - Platinex Inc. (TSX.V:PTX) today announced its support for the Ontario Government initiative to create a protected area in the boreal forest north of 51 degrees latitude and provide local First Nations with more capacity to participate in exploration and development of the non-protected portion of the area, as part of Go Green Ontario (www.gogreenontario.ca).

James R Trusler, President and CEO of Platinex Inc. stated, "Platinex holds some 57,400 acres in the McFaulds Lake-Big Trout Lake Belt which is starting to look like a huge nickel, chromium, platinum group element bearing structure. We are one of the larger land holders in the area and providing an environment to allow parties to partner cooperatively is something that Platinex has advocated for a long time. This announcement appears to promise the first step."

About Platinex Inc.

Platinex is a Canadian exploration company based near Toronto. Platinex focuses on carefully selected Platinum Group Element targets in settings analogous to the JM reef (Stillwater Complex, Montana) and the Merensky and UG2 reefs (Bushveld Complex, RSA). Platinex is determined to find platinum sources to be used in the campaign to eliminate the threat of global warming. Shares of Platinex are listed for trading on the TSX Venture Exchange under the symbol PTX.

To receive Company press releases, please email shirley@chfir.com and mention "Platinex" on the subject line.

FORWARD-LOOKING STATEMENTS:

Except for statements of historical fact, all statements in this news release - including, without limitation, statements regarding future plans and objectives, are forward-looking statements that involve various risks and uncertainties. There can be no assurance that such statements will prove to be accurate; actual results and future events could differ materially from those anticipated in such statements.

THE TSX VENTURE EXCHANGE HAS NOT REVIEWED AND DOES NOT ACCEPT RESPONSIBILITY FOR THE ADEQUACY OR ACCURACY OF THIS RELEASE.

%SEDAR: 00014019E
-30-

/For further information: Platinex Inc., James R. Trusler, President & CEO, Tel: (905) 727-9046, Email: jim@platinex.com; CHF Investor Relations, Cathy Hume, CEO, Tel: (416) 868-1079 ext. 231, Email: cathy@chfir.com/
,

In Ontario Prospector Fantasy Provincial Land Use Planning Dollars Used to Subsidize Industry Mapping of Mineral Potential

Garry Clark appears to be suffering from a flashback brought on by follies in his long passed youth. If the OPA think that the Land Use Planning dollars will become yet another Operation Treasure hunt subsidy for the industry they will be sadly mistaken.There is a new reality out there Garry. Have another donut.

Ont. plan to save boreal forest could benefit mining industry
Peter Koven , Canwest News Service
Published: Thursday, July 17, 2008

TORONTO - The Ontario government's move to block development of half the province's boreal forest ranks among the biggest land-protection initiatives in recent memory. But in a strange twist, it is also a potential positive for the mining industry.

The details are still hazy, but Premier Dalton McGuinty announced this week that 225,000 square kilometres of the forest would be set aside for tourism and aboriginal use. All industrial development, including logging and mineral exploration, will be banned on the designated land.

Over the next 10 to 15 years, the government will undergo a huge mapping and land-use planning process to identify the places that most need protection.
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In so doing, prospectors are confident they will also find promising mining regions that no one knows about.

"Right now, there's no good mapping in the North outside of some rivers and tributaries," said Garry Clark, executive director of the Ontario Prospectors Association (OPA). "If the government feeds a bunch of data in there and can get us better (drilling) targets, then we're way better off."

He is confident that if the government puts enough money into the initiative, those targets should be found.

"We're not 100 per cent sure they're going to do it properly, so we've got to give it a chance," he said.

All the same, the premier's announcement made some of the mayors of northern mining towns nervous, as they fear any kind of slowdown in activity. Many of them witnessed first-hand the downturn in the forestry sector, which devastated some communities.

But Michael Gravelle, Ontario's minister of northern development and mines, said development should continue at full force. He said all previously approved activities will be allowed to continue, and the amount of land that will remain open for development is still massive.

"It's 225,000 square kilometres, which is one-and-a-half times the size of the Maritimes. It's almost like people don't understand how large the far north 1/8of Ontario 3/8 is," he said in an interview.

Currently, only about three per cent of the boreal area has been staked by prospectors and mining companies, said Chris Hodgson, president of the Ontario Mining Association.

That activity is concentrated in a few large mining camps, especially Sudbury, Timmins and Red Lake. McFauld's Lake (near James Bay) also emerged as a hot area after a discovery by Noront Resources Ltd. last year.

The government is not providing details of what areas will be off-limits to development until the land-use planning process gets underway, and it has a better idea of what needs to be protected.

"In essence, it hasn't been picked. It's 50 per cent, that's it," Gravelle said.

The boreal forest initiative will be introduced along with an overhaul of Ontario's Mining Act, which mining companies and First Nations groups alike have criticized for a lack of clarity.

Saturday, July 19, 2008

Why KI Said No

We nedd a new "development" model.

The Big Questions About Mining and "Resource" Extraction

worth watching!

Time for Premier to Take A Boat Ride in the Boreal( at KI)

During a round of disarmament negotiations in Geneva, Switzerland, in
1982, American negotiator Paul Nitze and his Soviet counterpart, Yuli
A. Kvitsinsky, went for an informal stroll in the woods. That led to an
arms agreement between the negotiators.
I think it is time for the premier to take Chief Morris up on his offer
of dialogue.No need for fanfare, no press releases, no entourage, just
quietly fly in and get in a boat with the Chief and take a ride and
have a talk. Might be the best political move of his career.

Friday, July 18, 2008

Donny Morris on McGuinty Announcement-Invites Premier to Dialogue-Governent to Government

http://www.kitchenuhmaykoosib.com/

compelling!

PLATINEX WELCOMES FIRST NATIONS' ADVISOR, CHIEF GLENN NOLAN

>
>
> PLATINEX WELCOMES FIRST NATIONS' ADVISOR, CHIEF GLENN NOLAN
>  
> TORONTO, ONTARIO, July 17, 2008- Platinex Inc. (TSX Venture: PTX)
> today announced that it has
> retained the services of Chief Glenn Nolan to facilitate contact with
> First Nations communities and
> provide a hands on aboriginal perspective for the Company. Chief Nolan
> brings a wealth of knowledge
> and experience to his role as Advisor. Interestingly, during the late
> 1970s and '80s, Chief Nolan worked
> extensively in exploration, conducting geophysical surveys throughout
> Canada, which gives him valuable
> insight into the programs and procedures Platinex aims to employ on
> its properties in cooperation with
> First Nations groups.
>  
> Chief Nolan is the elected Chief of the Missanabie Cree First Nation;
> currently serves as the second Vice
> President of the Prospectors and Developers Association of Canada; and
> is President of Learning
> Together, a nonprofit organization sharing information and experience
> with Aboriginal communities
> across Canada and internationally.
>  
> James Trusler, President and CEO of Platinex, stated, "Chief Nolan has
> demonstrated strong leadership in
> both the First Nations community and the mineral exploration industry;
> he is a distinguished addition to
> our Platinex team."
>  
> About Platinex Inc.
> Platinex is a Canadian exploration company based near Toronto.
> Platinex focuses on carefully selected
> Platinum Group Element targets in settings analogous to the JM reef
> (Stillwater Complex, Montana) and
> the Merensky and UG2 reefs (Bushveld Complex, RSA). Platinex is
> determined to find platinum sources
> to be used in the campaign to eliminate the threat of global warming.
> Platinex also focuses on
> opportunistic acquisitions in non-PGE projects which show promise of
> near term improvement in value.
> Shares of Platinex are listed for trading on the TSX Venture Exchange
> under the symbol PTX.
>  
> For further information please contact:
> Platinex Inc. CHF Investor Relations
> James R. Trusler Cathy Hume
> President & CEO CEO
> Tel: (905) 470-6400 Tel: (416) 868-1079 ext. 231
> Email: jim@platinex.com Email: cathy@chfir.com
>  
> To receive Company press releases, please email shirley@chfir.com and
> mention "Platinex News" on the subject line.
> FORWARD-LOOKING STATEMENTS:
> Except for statements of historical fact, all statements in this news
> release - including, without limitation, statements
> regarding future plans and objectives, are forward-looking statements
> that involve various risks and uncertainties.
> There can be no assurance that such statements will prove to be
> accurate; actual results and future events could
> differ materially from those anticipated in such statements.
> THE TSX VENTURE EXCHANGE HAS NOT REVIEWED AND DOES NOT ACCEPT
> RESPONSIBILITY FOR THE ADEQUACY OR ACCURACY OF THIS RELEASE.
>  
> Michael Heintzman
> Media Relations Officer
> Nishnawbe Aski Nation
> 710 Victoria Avenue East
> Thunder Bay, ON  P7A 6Y3
> Telephone:  (807) 625-4906
> Cell: (807) 621-2790
> Toll Free:  (800) 465-9952
> Fax:  (807) 623-7730
> Website:  www.nan.on.ca
>  

Wednesday, July 16, 2008

Is it Consent or Consultation? Time For Bryant to Be Clear

Bryant, aka the Harvard Kreskin, knows very well the difference between consultation and consent. Yet he still can't speak to the issue clearly. Is it consent or consultation? And by definition your burials are in your territory.


http://www.thestar.com/News/Ontario/article/461007

Ontario First Nations demand firm right to say 'no' to mining developments



Government's pledge draws skepticism
Jul 16, 2008 04:30 AM
Comments on this story (2)
Kerry Gillespie
Queen's Park Bureau

On the day in May that native leader Bob Lovelace was released from jail after spending 100 days there for blocking mining exploration, he was asked if he'd do it again.

He replied: "If you don't have the right to say, 'No,' you have no right at all."

This week, the province has said it's giving First Nations that right through land protection for the Far North and changes to the outdated mining act.

"We think exploration and mine development should only happen when there's been early consultation and accommodation with local aboriginal communities," Premier Dalton McGuinty said Monday when he announced half the province's vast Northern Boreal region would be protected from development.

If native communities "permit" mining on the lands left open to development, they'll "get a piece of the action" under resource revenue sharing agreements that will be part of the reformed mining act, McGuinty said.

But the lawyer for Lovelace, an Ardoch Algonquin, and six members of the Kitchenuhmaykoosib Inninuwug (KI), who were also jailed for opposing mining, isn't so sure the political language will turn into firm commitments when the legislation is introduced in the fall.

"Consultation and accommodation can take many forms," lawyer Chris Reid said in an interview. ``What we've said is make it very simple and clear: No staking, and no exploration without the consent of affected First Nations communities. Are they saying that? Not that I can see in the announcement."

The specific language hasn't been written yet. It will be worked out, in collaboration with First Nations, in the coming months, Aboriginal Affairs Minister Michael Bryant said.

But the intent is to ensure that native people don't go to jail to stop mining, he said.

"We want to avoid that from ever happening again," Bryant said in an interview yesterday. He is to address the Assembly of First Nations meeting today in Quebec City.

Under the Ontario Mining Act of 1873, anyone 18 or older can obtain a prospector's licence and stake mineral claims on land in Ontario. Companies can explore without consulting native communities.

Under the reformed act, "there will be no situation where exploration will take place on traditional territories or sacred burial grounds without the consent of First Nations, without the consultation of First Nations and that is a very, very significant shift," Bryant said.

New Look Chiefs of Ontario Refers to Colonialism and Bay Street Profits in Responding to McGuinty Mining Reform and Cloak of Green

COO now sounding like 70s lefties.The release has a nice retro
feel.Reminds me of Ed Broadbent or using my way back machine David
Lewis and the corporate welfare bums campaign.

July 15, 2008

ONTARIO REGIONAL CHIEF SUPPORTS PROGRESS TO ADDRESS FIRST NATION
INTERESTS AND THE CONSERVATION OF BOREAL FOREST

July 15, 2008 - Following Premier McGuinty's announcement yesterday to
protect the Northern Boreal region, Ontario Regional Chief Angus
Toulouse stated, "reconciliation and conservation are imperatives for
all peoples of Ontario. I am pleased to see the Premier taking steps in
this direction."

Regional Chief Toulouse commented that the Ipperwash Inquiry report
tabled in May of 2007 continues to point the way forward towards a new
relationship -one that is just, fair and recognizes First Nation rights
and jurisdiction. As Justice Linden said "we are all Treaty people" -
action is required to make this a reality. Such action includes
fulfilling the original understanding of mutual respect and harmony in
the best interests of both First Nations and the newcomers.

Regional Chief Toulouse added "I take the Premier's words to mean that
the evolution of development in this province has to change. This
change must bring to an end development driven solely by colonial
interests and capital gain."

We must all recognize that environmental preservation as well as
justice and recognition are imperatives that must be satisfied prior to
development. We can no longer tolerate the protection of Mother Earth
or the livelihood and well-being of our people taking a back-seat to
profit-margins on Bay Street."

We have much work to do together. The First Nation leadership in
Ontario is ready and able to take on this work. We look forward to
clarifying the challenge and the steps ahead together with the
Government of Ontario.

First Nations have advanced our clear position on the duty to consult
and accommodate as directed by the courts. First Nation leadership have
also set out an agenda to engage with the Government of Ontario on
Treaty implementation, land rights including resource revenue sharing
and revising the Ontario Mining Act, and First Nation jurisdiction and
capacity building through joint governance of the New Relationship
Fund. The Premier's announcement is a positive response to this agenda
and an indication that we can begin this work in a respectful and
action-oriented fashion.

Regional Chief Toulouse concluded stating that "I believe that the
stakes are high for everyone right now. We simply can't afford to keep
going down the same old path. The signs in the environment are clear
and so too are they in our communities. Our people are tired and
frustrated with the lack of progress and of being ignored. We've all
seen that conflict is real and very possible. Only through a broad
commitment including engaging First Nation governments at every step of
the way will we be able to see progress. A commitment to land-use
planning and the requirement of First Nation consent in this process is
a critical first step."

Union of Ontario Indians Adopts Skeptical Tone in Responding To Boreal Protection and Mining Reform Announcement

Union of Ontario Indians demand consultation with First Nations

Quebec City - First Nations within the Anishinabek Nation welcome the
Government of Ontario's plan to protect Ontario's north and to open up
economic opportunities to First Nations. However, we are greatly
concerned that it will be done in isolation of important treaty
relationships with Ontario First Peoples."

"We welcome any changes to the Ontario Mining Act, but change has to be
done in partnership with First Nations," says Anishinabek Nation Grand
Council Chief John Beaucage. "We want economic sustainability for all
First Nations and for all people in Ontario."

Last week, Grand Council Chief Beaucage met with the Northern
Development and Mines Minister Gravelle and discussed the development
of a memorandum of understanding (MOU) where government and First
Nations would agree on a process to jointly draft legislative changes,
agree upon a development of a joint consultation strategy, and enable
and engagement process with First Nations on a treaty-by-treaty basis.

"This would be the start to a comprehensive treaty-based discussion,"
says Beaucage. "This is a rights-based matter and it is important for
Government to work with our First Nations on a treaty-by-treaty basis."

"Our goal is to ensure these changes enhance the treaty relationships,
clarify the rules and environment for sustainable development," added
Beaucage.

The Grand Council Chief also welcomes a province-wide resource benefit
sharing agreement similar to the $3 billion over 25 years Ontario
Gaming and Lottery Commission agreement ratified in February. However,
there is also a need to develop a resource benefit framework based on
the treaties.

"We cannot continue to be lumped into one homogenous group, even as
First Nations. Our people have unique relationships when it comes to
treaties. The government has unique obligations when it comes to
implementing the treaties. First Nations also have unique needs and
goals when it comes to resource development," said Grand Council Chief
Beaucage. "We strongly encourage the government to come to the table
and work with us on a new, modern treaty implementation framework."

The Anishinabek Nation incorporated the Union of Ontario Indians as its
secretariat in 1949. The UOI is a political advocate for 42 member
First Nations across Ontario.

Tuesday, July 15, 2008

Blakes Law Firm On Ct. Of Appeal reasons

August Law Firm Blakes on Implications of Ct of Appeal Frontenac Decision-No More $10 Billion SLAPP Suits by Mining Cos.

The Court of Appeal made a clear statement in Frontenac that it would
no longer be acceptable for private parties to seek injunctions as a
first response to prevent protest action by First Nations with
legitimate aboriginal rights or land claims and then institute contempt
proceedings against protestors for failure to comply. The Court of
Appeal applied the Supreme Court of Canada's established jurisprudence
and held that there is a duty on the Crown, as well as private parties,
to negotiate with indigenous communities in order to resolve
conflicting interests. Following these decisions, it will be
increasingly important for private stakeholders in Ontario with an
interest in property over which an aboriginal rights claim has been
asserted to be cognizant of, and sensitive to, those indigenous
interests.

Why the Ontario Prospector Association and Mining Industry are Not Worried About the Boreal Announcement

Garry Clark, Ontario Prospectors chief apple shiner for the junior mining sector says they have staked up all the good ground up North.Sure pal.Enjoy your negotiations with International Nickel Ventures.It's a new day with the hammers McGuinty and co have given Neskantaga.Chris Hodgson of Majors lobby group Ont. Mining Assoc. was not so sanguine.

From todays Toronto Star

" A rush on staking in the Far North won't be a problem, said Garry Clark, executive director of the Ontario Prospectors Association.

"There's no road access. It's either float plane or helicopter access. It would cost you hundreds of thousands of dollars to go and randomly stake, and if you don't do any work on it in two years you lose the claims," he said. Besides, the industry has been in a boom in recent years, he said. "If it's good looking rock, we've already staked it."

There are about 6,000 mining stakes in the Northern Boreal region, according to ForestEthics.

Reading the Tea Leaves of the McGuinty Announcement- my comments in ( ) No Protected Areas without First Nation Consent

1. Ontario will protect at least 225,000 square kilometres of the Far
North Boreal region under its Far North Planning initiative.(this is
more than simply an aspirational goal it is an endpoint).


2. Scientist, First Nation and Métis communities will collaborate to
map and permanently protect an interconnected network of conservation
lands across the Far North. ( As a matter of protocol I would have put
First Nations first to send the right message that this process will be
community led. Metis in the Far North?Huh?)

3.The McGuinty government will work with all northern communities and
resource industries to create a broad plan for sustainable development.
( Key phrase is broad plan, signals a framework agreement with NAN.)

4.As well, local plans will be developed in agreement with First
Nations. ( NAN communities either sign or opt in to larger framework
agreement [referenced above as the broad plan} and then individual
First Nations or groups of First Nations develop local/regional land
use plans. The key phrase here is "in agreement with First Nations". I
read this as with First Nation consent.

5. And new mining development in the Far North would require early
consultation and accommodation with local Aboriginal communities.
( I assume this means beginning at the early exploration stage, likely
post staking. Wondering how this interim measure will be regulated.
MNDM officials in the NAN bilateral could not figure a way to make this
so under current Mining Legislation. I guess Court of Appeal gave them
new insights. If Ontario continues with the positions they have taken
in their policy docs and in court and negotiations with KI on meaning
of consultation and accommodation we could be in for some tough
times.Not all First Nations want simply consultation and accommodation
, many want the right to say no, especially while planning is taking
place.

Comment on Ontario Backgrounder.

A, The Framework Agreement with Scientists, First Nations and Industry.
Later this year, we'll engage with First Nation and Métis communities,
northerners, the resource sector and scientists to create a broad
framework for our plan, which will be completed by the spring of 2009.
( Again Scientists first in the list signaling that scientists will
represent the larger public interest and perhaps be the stalking horses
of the environmentalists. Very ambitious time frame-spring 2009.
Industry( since it is the far North read mining) now gets a seat at the
table.A significant departure from the Ontario-NAN bilateral approach.
First Nations are no longer in a government to government set of
negotiations.

Land Use Planning Process.
B. Each year, a number of communities will complete these local plans.
To ensure proper planning and community input, new forestry and the
opening of new mines in the Far North would require community land use
plans supported by local Aboriginal communities.(Each Year? Pikanagikum
took 5 years I think to complete their plan. The key phrase is "land
use plans supported by local Aboriginal communities." I read this as
requiring community consent. Ontario may read differently.

C. Do the following phrases add up to First Nation consent? I report, you decide.

"a much greater say on the future of their communities and traditional
land"
"Planning at the community level will be a true partnership. Because
any decision on development has the greatest affect on communities,
local planning will only be done in agreement with First Nations."

( Very close. Might be too close to tell the difference given the
phrase "only done in agreement". My only concern is the phrase "a much
greater say". A say is not the right to say no.I give my kid a say, but
then Dad decides.

Comment. It looks very close to a First Nation veto on land use
planning/protection decisions, but no veto on mining exploration simply
consultation and accommodation.Of course there will be a First Nation
veto on a mine. But mines once found by exploration are hard to stop in
the poorest region in Canada.

D. Resource Benefits Sharing

D. We will create a new system of Resource Benefits Sharing and we will
consult with Aboriginal communities immediately on ways to provide
greater economic benefit to Aboriginal communities from resource
development. This fall, we will provide details on a down payment to be
made by the Ontario government towards Resource Benefits Sharing. ( I'm
not too keen on resource benefits as a phrase. But maybe First Nations
get resource revenues, an economic development fund and guaranteed
training and jobs[benefits].The idea of a "down payment" is simply an
act of early good will to get buy in.Once again we have no agreement on
the definition of how much pie will be shared and where the streams of
pie will originate.Government?Industry? Combination of both?
Immediately is a good time frame.Don't want to derail Ontario's last
best economic hope of mining in the face of S.Ontario
deindustrialization and the collapse of the forest industry in Northern
Ontario.

E.Reforming And Modernizing Ontario's Mining Act

Our plan will ensure that mining potential across the province is
developed in a sustainable way that benefits and respects communities.

We will ensure that our mining industry remains strong — but we also
need to modernize the way mining companies stake and explore their
claims to be more respectful of private land owners and Aboriginal
communities. The Ontario government believes exploration and mine
development should only take place following early consultation and
accommodation of Aboriginal communities.

To ensure that mining practices are up to date in the far North and
across the province, we will review the Mining Act.

Consultations will begin early next month. We will introduce
legislation in the upcoming session and new rules would be in place for
later next year.

(Modernize likely means phased in map staking( beginning in S Ont. and
consultation and accommodation with First Nations post staking.I would
say that infringements that trigger aboriginal and treaty rights and
hence legal obligations re consultation and accommodation begin
pre-staking at airborne, but Ontario sees it differently.And as we all
know the legal right to accommodation is not the right to say no and/or
a moratorium while land use planning is ongoing. The problem will be
how to reconcile disputes when no accommodation agreement is arrived at
with the First Nation. Likely Ontario will stay the course and put the
onus on the companies re consultation(only companies understand their
projects and can explain them to communities is the rationale for
making industry the pointy end of the consultation spear). Ontario will
try to make industry pay for the cost of consultation and compel them
to deliver the jobs, training and benefits of accommodation to
communities. And all this needs to get done by December 2009.Time to
start those First Nation line cutting companies.

Monday, July 14, 2008

NAN, Give Us Right Revenue Sharing Deal, Community Planning and Compulsory IBAs and Were In

The ONLY Measuring Stick of the Land Use Planning and Mining Reform Announcement-First Nation Consent

We need ask ourselves only one question: Do activities on the land (
mining exploration, land use planning, mines, hydro corridors) require
the free, prior and informed consent of the First Nations?

If yes under the McGuinty offer then all is well.If no, no justice and
no peace in Treaty No. 9.

Nothing less will do. Jurisdiction and Self government.

First Nations must be masters in their own house. And until then they
will not rest.

NAN-uvut!

BackGrounder on McGuinty Land Use Planning Mining Reform Announcement

BACKGROUNDER
Office of the Premier

PROTECTING A NORTHERN BOREAL REGION ONE-AND-A-HALF TIMES THE SIZE OF THE MARITIMES

Ontario Fights Climate Change By Protecting Carbon-Absorbing Forests
July 14, 2008

Ontario’s Far North Boreal Forest is one of the last, great, undeveloped spaces on the planet and a vital carbon sink. The forests and peat lands in the Far North store about 97 billion tonnes of carbon dioxide and absorb around 12.5 million tonnes of carbon dioxide a year.
It is also one of the world’s largest intact ecosystems. The Northern Boreal region contains more than 200 sensitive species of animals — including polar bears, wolverines and caribou — as well as many species of migratory birds.
Although it is 43 per cent of Ontario’s landmass, the region is home to just 24,000 people living in 36 communities. Most of these people are First Nations, living in remote communities far beyond the end of Ontario’s road and infrastructure network.
The Far North Boreal Forest has remained virtually undisturbed by humans since the glaciers retreated. But as pressure for new resources and new places to live increases, that will likely change. We need to take this opportunity to guide and plan for that development. It is our responsibility as global citizens.
We will only get one chance to get this right.
That’s why the Ontario government is launching a Far North Planning Process —bringing together various experts and groups to create a plan for the Northern Boreal Forest.

What is Being Protected?

Scientists have said that in order to preserve a healthy ecosystem in the Far North, a minimum of half of the land be protected while allowing carefully managed sustainable development in remaining lands.
The Ontario government will be protecting more than 225,000 square kms — or more than half of the Northern Boreal lands — in an interconnected network of conservation lands. Priority will be given to protect lands with key ecological features such as habitat for endangered species or important carbon sinks. These lands will be permanently protected through the Far North planning process. Activity on these lands will be restricted to tourism and traditional Aboriginal uses.
Preserving these lands also protects the core cultural connection of the Aboriginal people who live there — their connection to the land, clean water and abundant hunting and fishing.

How Will The Plan Be Developed?

Our goal is to strike the right balance between conservation and development.
Later this year, we’ll engage with First Nation and Métis communities, northerners, the resource sector and scientists to create a broad framework for our plan, which will be completed by the spring of 2009.
At the same time, we will also work with individual Aboriginal communities to begin a local land-use planning process. Each year, a number of communities will complete these local plans. To ensure proper planning and community input, new forestry and the opening of new mines in the Far North would require community land use plans supported by local Aboriginal communities.
To support this planning, the Ontario Government is undertaking scientific mapping of the region’s biodiversity, carbon sequestration potential, Aboriginal cultural heritage and mineral and natural resource potential.
The entire process will be completed in the next 10-15 years.

A New Role For First Nations In The Far North

This planning process for the Far North will enshrine a new respect and working relationship with First Nations. In addition to a much greater say on the future of their communities and traditional lands, the process also creates opportunities for economic development in these remote communities.
Planning at the community level will be a true partnership. Because any decision on development has the greatest affect on communities, local planning will only be done in agreement with First Nations.

Resource Benefits Sharing

We will create a new system of Resource Benefits Sharing and we will consult with Aboriginal communities immediately on ways to provide greater economic benefit to Aboriginal communities from resource development. This fall, we will provide details on a down payment to be made by the Ontario government towards Resource Benefits Sharing.

Reforming And Modernizing Ontario’s Mining Act

Our plan will ensure that mining potential across the province is developed in a sustainable way that benefits and respects communities.
We will ensure that our mining industry remains strong — but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private land owners and Aboriginal communities. The Ontario government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.
To ensure that mining practices are up to date in the far North and across the province, we will review the Mining Act. Consultations will begin early next month. We will introduce legislation in the upcoming session and new rules would be in place for later next year.

Premier’s Media Office: 416-314-8975
ontario.ca/premier-news
Disponible en français

Ontario's Announcement on Protection/Mining Reform

Framing. Headline is all about forest protection.The 50% protection target( and it is only a target to be achieved 2 elections or so from now.) is direct from ENGO community( 50 % goes back to ecological biologist Michael Soule[google him]).

Appears to be primarily an environmental announcement.Political audience is the ENGO community and S. Ontario supporters and secondarily a recognition that achieving these protection goals will require First Nation buy in/and or consent via land use planning and on accommodation( read deals ) at the early exploration stage.
Significant that the announcement was made in Toronto and not on Premier's northern Ontario road show.

Announcement made by McGuinty and not Bryant, Gravelle or Cansfield. King has decided.Bryant and co will now act on King's wishes.



Questions.

1. Did anyone in First Nations leadership have a heads up or role in the announcement? Appears Not.
2. What will Ontario's role be in consultation and accommodation at the early exploration stage?
3.Who will fund consultation and accommodation talks?Industry in a user pays model?
4.Say communities 1-7 undertake planning and protect only 20%.Will other communities have to protect more than 50% to get to the 50% target?Or will 50% be imposed on an area and planning will be about how to get to the 50% goal?
5.What happens as in Platinex vs KI case when consultation and accommodation talks break down?Who will be the referee? Courts?Jails?


Postives.No new mines without First Nation consent[call them the De Beers principles].Hearing compulsory revenue sharing of new mines with First Nations. Consent means an impact and benefit agreement with company.

Weak positives. Compulsory consultation and accommodation in early exploration satge .I hear post staking. The First Nation demand is right to say no. Or free, prior( read prior to creating legal interest via staking or impacts via airborne surveys pre-staking), informed consent.Revenue sharing may be easy for Ontario if the pie to shared is only corporate pie and not government pie.

King McGuinty had guts to make the announcement. Shows leadership, even if I disagree with hsi methods.Profs to him.
Likely McGuinty expects some negative comment from mining( although they will like the certainty) and first nation folks which will affirm that he pissed both off and therefore made the right decision.

Finally Mining Act review has a start date.

Negatives. No prior agreement by Chiefs to overall protection goal, not to mention cultural gap on understandings re definition of a park.First Nations often see Parks as some kind of European fantasy not in accord with their land ethic.
No First nation right to say no, just right to consult and accommodate.
No respect/recognition for community moratoriums.
Leaves Northern Table with NAN bypassed.

This is a long road.The devil really will be in details.

Sunday, July 13, 2008

Ontario's Definition of Consultation

Consult: To seek approval for a course of action already decided upon.
Ambrose Bierce

Saturday, July 12, 2008

Jesus - Master Legal Tactician-from the teachings of Walter Wink

Jesus said, "You have heard that it was said, 'An eye for an eye and a
tooth for a tooth.' But I say to you, do not resist an evildoer. But if
anyone strikes you on the right cheek, turn the other also; and if
anyone wants to sue you and take your outer garment, give your
undergarment as well; and if one of the occupation troops forces you to
carry his pack one mile, go two" (Matthew 5:38-41).


Jesus' second example deals with indebtedness, the most onerous social
problem in first century Palestine. The wealthy of the Empire sought
ways to avoid taxes. The best way was to buy land on the fringes of the
Empire. But the poor didn't want to sell. So the rich jacked up
interest rates—25 to 250 percent. When the poor couldn't repay, first
their moveable property was seized, then their lands, and finally the
very clothes on their backs. Scripture allowed the destitute to sleep
in their long robes, but they had to surrender them by day (Deuteronomy
24:10-13).

It is to that situation that Jesus speaks. Look, he says, you can't win
when they take you to court. But here is something you can do: when
they demand your outer garment, give your undergarment as well. That
was all they wore. The poor man is stark naked! And in Israel,
nakedness brought shame, not on the naked party, but on the one viewing
his nakedness. (See the story of Noah, Genesis 9.) Jesus is not asking
those already defrauded of their possessions to submit to further
indignity. He is enjoining them to guerrilla theater.

Imagine the debtor walking out of the court in his altogethers. To the
question what happened, he responds, That creditor got all my clothes.
People come pouring out of the streets and alleys and join the little
procession to his home. It will be a while before creditors in that
village take a poor man to court! But, of course, the Powers That Be
are shrewd, and within weeks new laws will be in place making nakedness
in court punishable by fines or incarceration. So the poor need to keep
inventing new forms of resistance. Jesus is advocating a kind of
Aikido, where the momentum of the oppressor is used to throw the
oppressor and make him the laughing stock of the community. Jesus is
not averse to using shame to kindle a moral sense in the creditor.

Platinex Continues to Diss KI As it seeks access in other Treaty No. 9 areas-Dumb and Dumber

PTX Platinex focuses on Shiningtree, McFaulds South
Stockwatch
265 words
11 July 2008
Canada Stockwatch
English
(c) 2008 Canjex Publishing Ltd.

Platinex Inc (TSX-V:PTX)

Shares Issued 25,891,548

Last Close 7/10/2008 $0.22

Friday July 11 2008 - News Release

Mr. James Trusler reports

PLATINEX UPDATE

After unparalleled efforts to gain access to the Big Trout Lake
property were not met with the needed co-operation of KI, Platinex Inc.
management decided that diversification into other properties was
necessary. Commencing in late February, Platinex staked seven very
prospective platinum group element properties and optioned one gold
property. Further details can be found on the newly revamped Platinex
website.

Reports for the various properties are being prepared and will be
published shortly.

Recently a suit was brought against the Ontario government for its role
in causing damages to Platinex and its shareholders during the
continuing legal issues at Big Trout Lake. Some background for this is
provided in the company's recent management's discussion and analysis
and an article in the First Nations Yearbook, an aboriginal journal;
both can be found on the company's website.

The company's efforts going forward in the near term will stress
pursuit of exploration on the Shining Tree gold property, which is
located on several former gold developments, and the McFaulds South
property near the recent Noront discoveries. The company's approaches
to first nations bands in and around these new properties have been
very encouraging and the company believes it will receive much support
from local first nations going forward.

Please visit the company's website for press release information and
details about its new properties.

Document CNSW000020080711e47b007sq

Friday, July 11, 2008

Why MNDM Are Resisting Change-A Story of True Believers and Soft Racism

I think we can divide MNDM into roughly 3 groups. First there are what
I would call true believers — people who
identify with the values of the mining industry, who likely are "soft
racists" and cannot imagine a world without free entry or on the flip
side First Nation self government. Then there is a larger middle group
that basically adopt what we would call "standard operating procedures"
— they do what they are asked and do not confront authority. At the
other end of the spectrum is a smaller group that support change in the
direction of recognizing and respecting aboriginal and treaty rights
and ending free entry.

I think that the true believers actively seek opportunities to
advocate for free entry and mining as the one true faith and take every
opportunity to frustrate any change that First Nations might be
seeking. I think that as people behave, they often adapt their belief
to that behavior.

I think you also have a number of people who act out of their
conception of what it means to be a good bureaucrat, what their duty is
as
officials administering a piece of legislation that is more about the
industry's good than any notion of the larger public interest. As the
controversy over mining grows they may now conceive of themselves as at
war with a world of First Nation, environmentalist and do gooder
enemies and maybe even other Ministries encircling them. Some, I think,
they go along with their true believer colleagues basically because
they are simply afraid to confront authority, afraid to be seen as
cowards, afraid to look soft and weak in the boys club that is MNDM.

We have to ask ourselves: How much is racism; traditional soft racism (
people who exhibit muted social antagonism, contempt, subscribe to
beliefs of inferiority and likely are quick to default into biological
explanations), as an
explanation of the motivation for their hostility to change?

In the true believers I think we have some examples of deep hostility
and pervasive racism. But of course that could be said of many in
Canadian society and is not certainly unique to MNDM.

For me it is interesting how a bureaucracy led by true believers can
control government policy in which the bulk of bureuacrats are not
fanatical racists and barking mad mining promoters , but the resistance
to change takes place anyway. This is a much more
dangerous world, and a much more pessimistic view of the possibilities
for change.

The other explanation for MNDM resistance to change would go something
like this.

The MNDM agenda is a by-product of a commodity boom and a declining
Ontario heartland. What the MNDM really wants to do is to simply create
more mining exploration and mines in Ontario's far north and First
Nations are standing in the way of this.

Likely the "truth" is a mixture of both.


Nonetheless we have a ministry dominated by a free market set of ideas
in which the
First Nations are identified with all sorts of non- market values that
threaten an aggressive industry and bureaucracy —
reverence for the land, respect for elders and tradition , family and
community, a rejection of money before all else- and ultimately some
control over industry access to land. These values are all identified
with
First Nations, and the First Nations become the concrete symbol for
all the values
industry and MNDM don't like.I think there is no denying that racism
plays a part in this story as well.

Our hope in government is in the middle[ I know it's a weak hope]. There is no doubt that the KI
events have humiliated the MNDM true believers.
But humiliation often leads to rage. And suppressed rage can be ugly.
Our best hope now is the middle represented by officials in MNR,
Aboriginal affairs{unlikely but possible] and MOE.

Let's imagine that somewhere in the McGuinty government thinking
people will get over their fear and do the right thing.
Otherwise 40 years from now this generation of MNDM officials will be
the subject of their own truth and reconciliation hearings.

Thursday, July 10, 2008

Not Here, Not Now, Not Without Our Consent, When Will Ontario Step Up to the Plate? Jailing KI Leadership and Bob Lovelace Was the Turning Point

Erasmus has the 3 nots correct.But I am a little worried at the "buy in" to the need for industry secrecy-one of the main rationales of the current free entry.

The subtle point here is on talking[read consultation] "before mineral claims are made." If that were law, free entry would be at an end.
Of course we want more than talk. And we want to talk to the Crown and not to the companies. We want the right to say no [not here, not now(we need to plan, we need to build capacity, we need to resolve our land claims] and not without our consent.

The problem with all these protocols, AFN, NAN bilateral etc is that they are built on the premise that issues arising from the politics of the three nots have been resolved.

And they help build a false division between so-called pro-development and anti-development First Nations.


Often communities facing the twin challenges arising from the failure of the Crown to actually implement the Treaties and the costs of litigation simply make agreements.

That is not to say that these "open for business " communities disagree with the the politics of the 3 nots. For them a deal represents consent.

The limitations of these AFN style protocols become clear when we have the Temex's or other junior miners who say no deal when all around them their competitors are making agreements with communities.

There is some honesty in this article on the flak the AFN is taking, from KI( and even from some mebers of the NAN executive) for appearing to promote mining as a last best hope for First Nations.Personally I think the National Chief is making a mistake on the roles and responsibilities of the AFN.But then again the era of federally funded First Nation advocacy organizations is waning. The AFN can read the cards and are searching for a new identity.

But this time the AFN are looking for love in all the wrong places.





Recent deal aimed at ending clashes between mining industry, aboriginals

13 hours ago

FORT MCPHERSON, N.W.T. — Miners and aboriginals have been on opposite
sides for long enough, says the grand chief of the Assembly of First
Nations.

Phil Fontaine was at the Dene National Assembly on Wednesday pushing a
recent deal with the mining industry that he hopes will end clashes
that have seen aboriginal leaders jailed and prospectors forbidden to
explore land on which they hold legitimate claims.

"We wanted to ensure that if development was going to take place, it
would take place in an orderly manner and the companies interested in
development were respectful of First Nations," he said from Fort
McPherson, N.W.T., where the assembly is taking place.

Conflicts over land use have upset both aboriginals and mining
interests in recent months.

Seven northern Ontario aboriginal leaders served almost 10 weeks in
jail after protesting resource exploration on their traditional lands.
In the Northwest Territories, uranium prospectors have been frustrated
by regulatory decisions that cited aboriginal concerns in blocking
low-impact drilling on land that had been legitimately staked.

In March, the AFN and the Prospectors and Developers Association of
Canada signed an agreement intended to get the two parties talking
before any conflicts occur.

"The protocol talks about respecting community people's view of the
world," said Bill Erasmus, the assembly's regional chief in the N.W.T.
"It talks about consultation. It talks about improving relations."

It also talks about certainty of access.

The agreement says both sides "recognize that access to lands for
mineral exploration is critical to sustaining a healthy mining industry
in Canada."

The key will be to get companies and First Nations talking before
mineral claims are made. Right now, companies don't have to consult
with a band when staking ground, even if that land is considered
traditional territory.

"Some of our people have land-use plans," said Erasmus. "Some areas
they may not want to develop because they're sacred sites. Other sites
are different."

Miners just want to know the rules - and be assured their plans won't
be available to competitors before the rights to an area are locked up.

"We do have to see a system where a company cannot be scooped," said
association past-president Bill Mercer, who spoke at the assembly.

"The key objective is to put in place better consultation."

Fontaine said the AFN believes that resource extraction is one of the
few economic cards many remote bands - especially those in the North -
have to play. Any plans to develop self-supporting economies in those
communities have to include the mining industry.

Not everyone agrees, he acknowledged.

"There are some First Nations communities that are not entirely happy
we have signed this agreement."

The agreement mentions business partnerships, investments, education
and employment, but it contains no binding targets or timetables.

"The (agreement) is more a commitment of goodwill and determination to
do right," said Fontaine.

More open lines of communication are the agreement's main goal, said
Mercer.

"One of the key things is to develop better methods to work together.
The smarter companies right now will be talking to the communities
earlier."

- By Bob Weber in Edmonton

Wednesday, July 9, 2008

Globe and Mail Says Change the Mining Act

MINING AND ABORIGINAL RIGHTS
Taking a respectful view of contempt

July 9, 2008

Ontario's highest court has reduced to nothing the 60-day contempt
sentences imposed on Queen's University professor Robert Lovelace and
six other native protesters in Eastern Ontario, and cut their
substantial fines nearly to nothing. Although the decision comes too
late in some ways - Mr. Lovelace had already served 14 weeks, and the
others 10 weeks - it points to a humane and sensible approach in
difficult circumstances. The rule of law is not merely a hammer to be
wielded by the courts in an automatic or reflexive way.

Some will criticize the decision for offering a separate standard of
justice for native offenders, and to the extent that the court offered
as a rationale the Criminal Code's separate sentencing clause for
natives, that criticism is justified. But there was a good reason
beyond nativeness in and of itself to support the ruling's thrust. The
initial sentence of 60 days and fines of $10,000 to $25,000 was too
harsh.

Ontario has a mining law that virtually invites aboriginal protests.
Though the province is asking Michael Bryant to oversee a Native
Affairs Ministry that will address legitimate native concerns, it
allows mining companies to stake claims on and explore lands in which
native groups have made unresolved claims. The Court of Appeal clearly
doesn't like this "remarkably sweeping law." It pointed out that, while
Frontenac Ventures Corp., the mining company, acted within the law, the
response of Mr. Lovelace and the others was "grounded, at a minimum, in
a respectable interpretation" of the aboriginal-rights clause of the
Canadian Constitution. The court, of course, needs to apply the law,
but it needs to use some wisdom in sentencing. Jailing Mr. Lovelace and
other community leaders simply emphasized "the gulf between the
dominant culture's sense of justice and [the Ardoch] First Nation's
sense of justice." That won't help spread respect for the rule of law
in that community.

Those who engage in civil disobedience should expect to pay a penalty,
and the court does not recommend impunity. What it did was find some
nuance in a situation that seems not to allow for much. Reasonably, it
said the rule of law includes respect for minority rights and
reconciliation of aboriginal and non-aboriginal interests through
negotiations. Given a deeply rooted conflict, the protesters' lack of
criminal records and their history of community "leadership in
demonstrating respect for Canadian law," the appeal court was willing
virtually to cancel the sentence (it ordered a $1,000 fine against Mr.
Lovelace). That seems reasonable.
Print Edition - Section Front


Mr. Lovelace's acts in ignoring a court injunction barring his protests
were deserving of rebuke. But he is no Shawn Brant, the self-appointed
disrupter who cloaks criminal acts as civil disobedience with blockades
of railway lines.

In these circumstances, the appeal court suggests it is unwilling to
act as a tough enforcer. The Ontario government should take the hint
and change the mining law.

Sudbury Star Editorial-Now What

Editorial

* Home
* News
* Editorial
* Jail didn't work

Jail didn't work
now what? OUR OPINION
Posted -48 sec ago

Back in March, we said in this space that throwing aboriginal leaders
in jail for protesting mining exploration on their traditional lands
wouldn't work.

It hasn't. The native leaders spent weeks in jail and were eventually
freed by the Ontario Court of Appeal, drilling on the lands in question
has not resumed, and on the same day the appeal court's decision was
released, members of the Six Nations band near Brantford -- backed for
the first time by leaders of the Confederacy (the traditional band
council) -- swarmed construction projects on claimed land near the
Grand River, bringing private construction to a halt.

All that has changed as a result of jail terms, is a demonstration of
the ineffectiveness of the courts to solve issues that arise when
natives' desire to protect their traditional lands collides with
private interests to develop or exploit those lands.

Earlier this year, six members of the Kitchenuhmaykoosib Inninuwug (KI)
First Nation near Thunder Bay and two members of the Ardoch Algonquin
First Nation in eastern Ontario were jailed for 10 and 14 weeks
respectively -- they were given six months terms -- when they protested
private companies' activities on their traditional lands (though not
reserve lands). The companies involved -- junior mining company
Platinex Inc. in KI's case and Frontenac Ventures in Ardoch Algonquin's
dispute -- felt they had the law on their side. Maybe so, but battering
aboriginals with jail terms in an attempt to address what governments
won't is a recipe for failure.

In fact, that's pretty much what the appeals court said. The panel of
three judges decried the decision to "bring down the hammer" on native
bands that had already been subject to huge bills by the legal process.
The panel said jailing native leaders emphasized the "estrangement of
aboriginal peoples from the Canadian justice system."

Aboriginals' right to protest "cannot simply be dismissed as illusory,
flawed or weak," the panel said. "Imprisonment, far from being a
meaningful sanction for the community, had the effect of pitting the
community against the justice system."

The appeals court also dismissed thousands of dollars in fines against
the protesters.

To their credit, Northern Development and Mines Minister Michael
Gravelle and Aboriginal Affairs Minister Michael Bryant agreed with the
appeals court decision.

Said Bryant: "The jailing was a black cloud hanging over everything,
and not just KI and not just for (Ardoch) Chief (Bob) Lovelace, but all
across the province and arguably across the country."

True enough. Jailing aboriginals was never going to stop demonstrations
and protests, unless the province was willing to fill the jails.

But what happens next? The black cloud remains, and it's not moving,
not even with legal injunctions.

Monday, July 7, 2008

Joint KI/Ardoch Statement on Ct of Appeal Reasons

For Immediate Release - July 7, 2008


Court of Appeal Calls on Ontario to Negotiate with KI and Ardoch

On February 15, 2008, Robert Lovelace, retired Chief of the Ardoch
Algonquin First Nation, was sentenced to six months in a maximum
security prison. His crime? He had declared that he could not obey a
court order which banned peaceful protest against uranium exploration
on his community's territory in eastern Ontario, because he must obey
Algonquin law which forbids uranium mining and exploration. The
government of Ontario had approved the exploration in 2006 without any
consultation with the Ardoch Algonquins and without any regard for the
sensitive ecology of the area.

On March 17, Chief Donny Morris and five other leaders of the
Kitchenuhmaykoosib Inninuwug (KI) received a similar six month sentence
in a very similar case. In KI's case Ontario had also approved the
staking and exploration of land which KI says is part of its
traditional territory, and which should not be subjected to the
environmental impacts of mining. The six KI leaders: Chief Morris,
Dpty. Chief Jack McKay, Spokesperson Sam McKay, Councilors Cecilia Begg
and Daryl Sainnawap and Bruce Sakakeep – became known as the "KI Six".
Like the Ardoch Algonquins, they had refused to obey a court order
prohibiting them from interfering with mining in their territory.

In both cases, Ontario's Minister of Aboriginal Affairs, Michael
Bryant, instructed Ontario's lawyers to support the mining companies in
seeking the harshest possible punishment for our "disobedience" of
Ontario's laws. The government made it clear at every step of the
legal proceedings that their only priority is to support the 19th
century Mining Act which states that mining is always the best use of
land, and any peaceful protesters who oppose mining should expect jail
and crippling fines.

The incarceration of seven respected community leaders for peacefully
obeying their own laws and resisting the destruction of their
territories led to an outpouring of support for KI and Ardoch and calls
from environmental groups, unions, churches and community activists to
reform the outdated Mining Act to allow communities to say 'no' to
mining. The support culminated in a rally at Queen's Park on May 26,
followed by a four-day "sovereignty sleep-over" at the legislature.

On May 28, an appeal of our sentences was heard by the Ontario Court of
Appeal. The Court ordered the immediate release of Bob Lovelace and
the KI Six, but did not release the reasons for their decision until
today.

In today's ruling the Court of Appeal said that the outdated Mining Act
"lies at the heart of this case".
The Court called the Act "a remarkably sweeping law" which allows
prospectors to stake claims on any Crown land, and which allows no role
for communities in deciding whether mineral exploration occurs in their
territories, even when they have unsettled land claims to those areas.


The Court noted that both KI and Ardoch had consistently asked the
government of Ontario to engage in direct negotiations with them to
resolve these disputes rather than supporting the mining companies'
efforts to obtain injunctions and then have community leaders jailed
for refusing to obey the injunctions. The Court said:

"Where a requested injunction is intended to create 'a protest-free
zone' for contentious private activity that affects asserted aboriginal
or treaty rights, the court must be very careful to ensure that, in the
context of the dispute before it, the Crown has fully and faithfully
discharged its duty to consult with the affected First Nations. The
court must further be satisfied that every effort has been exhausted to
obtain a negotiated or legislated solution to the dispute before it.
 Good faith on both sides is required in this process"

Said Bob Lovelace, "We feel fully vindicated in the position we have
taken and remain committed to our position that there will be no
mineral exploration within the territories of KI or Ardoch without our
consent. Our laws, which require respect for the land, are entitled to
at least as much respect as Ontario's Mining Act. We remain open to
dialogue, but Ontario has never responded to our proposals for
negotiations. We want negotiations, not conflict, but we will enforce
our laws and protect our land."

KI Spokesperson Sam McKay added: "The decision of the Court of Appeal
proves that we went to jail because of the stubborn refusal of the
provincial government to respect our laws and our perspective on
development within our territories. The Premier of Ontario owes an
apology to the people of KI and Ardoch, especially to those of us who
were jailed for opposing an outdated and immoral law. A sincere
apology would begin a process of healing and reconciliation."


Background Legal Issues

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 realize that in the 2004 Haida case, the
Supreme Court made it clear that First Nations which have asserted
rights claims or land claims, but 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.

The only way to achieve what KI and Ardoch believe is a fair and just
solution is through negotiations to withdraw sensitive lands from
mineral staking and mining.


Contacts:

Sam McKay, Spokesperson, KI (807) 537-2263
Robert Lovelace, Ardoch FN (613) 532-2166
Chris Reid, Legal Counsel for KI and Ardoch: (416) 629-3117

NAN Take on KI/Ardoch Decision

NAN pleased Ontario Court of Appeal finds jailing first nation
leadership not the answer in land disputes

THUNDER BAY, ON, July 7 /CNW/ - Nishnawbe Aski Nation (NAN) Deputy
Grand
Chief Alvin Fiddler is pleased by the decisions of the Ontario Court of
Appeal
today in the cases of Frontenac Ventures Corporate v. Ardoch Algonquin
First
Nations and Platinex v. Kitchenuhmaykoosib Inninuwug First Nations
where the
court found that jailing First Nation leadership in a land dispute with
the
Crown was "too harsh" and should only be used as a last resort.
"This is good news for the leaders of First Nations who are
concerned
about being jailed for protecting their lands and defending their
Aboriginal
and treaty rights," said NAN Deputy Grand Chief Alvin Fiddler. "The
Courts are
saying that Ontario has an obligation to actively bring about
reconciliation
with First Nations and not just stand on the sidelines when First
Nations
leaders are at risk of being incarcerated," said Fiddler.
Today's decisions by Justices James MacPherson, Marc Rosenberg and
Kathryn Feldman granted the appeals by the First Nations leadership of
both
communities and concluded that jailing First Nations leadership in
disputes
between the Crown and Aboriginal people should only be used as a last
resort.
"The use of incarceration as the first response to breach of the
injunction dramatically marginalizes the significance of aboriginal law
and
aboriginal rights. Second, imposing a lengthy term of imprisonment on a
first
offender fails to recognize the impact of years of dislocation." (par.
58)
NAN had intervener status at the appeal and argued that the lower
court
had missed an important legal step when it sentenced the First Nations
leadership to six months in jail rather than continuing the negotiation
process that was required as part of reconciliation between First
Nations and
the Government of Ontario.
"In my view, the Court has set a different and higher standard for
granting injunctions when cases involve restricting asserted Aboriginal
and
Treaty rights. The decision sends a strong message to the Ontario
government
that negotiation, not incarceration, is the best way to reconcile the
claims
of our Aboriginal communities with the rights of the Crown," said lawyer
Julian Falconer who, along with Aboriginal Legal Services of Toronto,
represented NAN at the Court of Appeal.
The KI leadership and the Ardoch leadership were sentenced to six
months
in jail for civil contempt of court after disobeying court orders which
allowed mining exploration on traditional territories.
In declaring the sentences too harsh, the Court of Appeal stated
"... in
light of the progress already made, much of it with the encouragement
and
assistance of the motion judge, there was no need to bring down the
hammer of
long jail sentences and very substantial fines." (par. 65)

Nishnawbe Aski Nation is a political territorial organization
representing 49 First Nation communities in James Bay Treaty 9 and
Ontario
portions of Treaty 5 - an area covering two thirds of the province of
Ontario.


For further information: Michael Heintzman, Media Relations Officer -
Nishnawbe Aski Nation, (807) 625-4906 or (807) 621-2790 mobile

Why the Frontenac Appeal Reasons Apply to KI

At para 5 "The
principles that would have been applied to this appeal are set out in
the reasons in the companion appeal in Frontenac v Ardoch".

Jail Will Now Be the Last Bridge We Cross When Aboriginal Rights and Mining Rights Come Into Conflict.

The role of the court of appeal is to check the power of judges and make undesirable outcomes less likely in future.

Clearly jailing First Nations leadership ( or membership for that matter) is an undesirable outcome when aboriginal and treaty rights and mining rights come into conflict.

And that outcome is a lot less likely today than yesterday in Ontario.

But are we really any farther ahead in answering the question: How should we resolve disputes between First Nation(s) with aboriginal and treaty rights and an outstanding land claim and a mining company who has staked claims in the First Nation's territory?

In a way. Courts do not legislate and legislation is what we need.


MNDM best take note of para 48 esp the words legislated solution. Broad hint?
48] The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

But hints are not deeds and the Platinex claims remain on KI lands and the Mining Act is yet unchanged.

There is comfort in the fact that jail will be the last bridge we cross when First Nations and mining companies battle.

The extension of Gladue sentencing principles may ripple widely.

And perhaps mining companies will think twice before launching lawsuits to gain access to First Nation lands. Only the Crown can resolve the dispute between S. 35 rights and free entry. When that might happen remains anyone's guess.

So Temex( Did you see those eviction notices up in Neskantaga?) and all you other juniors having some trouble in Treaty No. 9 , time to sue the Crown for failing in its legal obligations.Just cut and paste the Platinex statement of claim. Faskens will be happy to help. Perhaps a corporate class action by the mining industry against the Crown.

This case set out a new stricter standard for the imposition of injunctions that “might have an adverse impact on asserted aboriginal and treaty rights.” (par. 43)
I can see a new law of aboriginal injunctions developing.

Lower court judge's better mind their manners when opining on the strength of a first nation land claim. You might say the burden of proof has shifted in a big way onto the Crown.A cynically timed letter from Minister Bryant's minions rejecting a land claim will not be enough next time we are in court.

And there will be a next time.

Nice to see judicial recognition of the fact that in place based struggles First Nations stand in a different legal "place" than environmental protests (with the greatest of respect to all my enviro friends out there) The lands at issue in the dispute with Platinex and Ontario are KI's place in a different legal way than for non aboriginal folks.

I like the reference to protest free zones. But the larger point is that all those who would stake mining claims without First Nation consent are trying to create an aboriginal and treaty rights free zone.

The general direction of the law remains- resolve aboriginal disputes by negotiation.

But will negotiation give First Nations the right to say no?

Maybe, just maybe, with the removal of the jail "hammer" in aboriginal versus mining co. disputes the distinction between a First Nations right to say no and the legal right to consultation, accommodation and reconciliation [read inevitable mining exploration and development project delays] becomes meaningless.



Take that greedheads.

Take Away Pt from Ct of Appeal

[57] Although Gladue was focused primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system's engagement with Canada's First Nations. I note three factors in particular that were highlighted in Gladue: the estrangement of aboriginal peoples from the Canadian justice system, the impact of years of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member. Those factors were all at stake in this case.

[58] First, while the appellants did not contest the injunctions and admitted that they were in breach of the orders, the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation. The fact that persons of the stature of Mr. Lovelace and Chief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation and the other problems discussed in Gladue at paras. 67-69. Finally, imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system. That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture's sense of justice and this First Nation's sense of justice.

[59] For these reasons, I cannot agree that the principles underlying the Gladue decision have no application in the civil contempt context. Rather, as in Gladue, the court must look at the unique systemic or background factors at play in this case.

[60] What then are the unique systemic or background factors that played a part in bringing the AAFN and two of its leaders before the courts to be sentenced for contempt? The first background factor is that there is an existing land claim negotiation between the Algonquin Nation and Ontario. In Haida Nation, the Supreme Court of Canada held at pp. 532-36 that when the Crown has knowledge that a First Nation community has claimed rights or title in respect of a territory, it must consult the affected community and, where indicated, must accommodate aboriginal concerns before approving any activity that could have an impact on the claimed rights or title. In Taku River, at p. 567, the Supreme Court also held that the fact that a land claim has been accepted by the Crown for negotiation establishes a prima facie case that the claim has merit. Ontario accepted the Algonquin land claim for negotiation in 1991: see Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, [2007] O.J. No. 3360 (S.C.J.) at para. 25. Haida Nation and Taku River together instruct that the existing, and as yet unresolved, Algonquin land claim – the basis for the AAFN's protest and blockade – cannot simply be dismissed as illusory, flawed or weak.

[61] The second background factor that played a part in bringing the appellants before the courts is the nature and content of Ontario's Mining Act. It is a remarkably sweeping law. It establishes a "free entry" system whereby all Crown lands, including those subject to aboriginal land claims, are open for prospecting and staking, without any consultation or permitting required. Anyone with a prospector's licence may stake claims and prospect for minerals on any Crown land. Once a claim has been staked, in accordance with the Act, the Mining Recorder must record the claim. There is nothing in the Mining Act about considering aboriginal land claims or interests.

[62] The intersection of these two background circumstances creates an obvious problem, indeed the problem that lies at the heart of this case. What Frontenac wants to do on Crown land – staking and exploration – is legal under the Mining Act. However, the appellants' response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of s. 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada. In summary, the appellants' character and circumstances, their actual conduct, and the difficult legal context within which it occurred, should have counted as significant mitigation when sentences were imposed on them. The circumstances of the offences and these aboriginal offenders are such that, in accordance with the Gladue principles, sentences of incarceration were inappropriate.

[63] The third reason for concluding that the sentences imposed on the appellants were too harsh is that they are considerably more severe than the sentences imposed in other protest/blockade cases. In MacMillan Bloedel Ltd. v. Brown (1994), 88 C.C.C. (3d) 148, the British Columbia Court of Appeal allowed in part appeals from sentences for criminal contempt consisting of public disobedience of court orders related to logging operations in Clayoquot Sound. McEachern C.J.B.C., for the majority, discussed past sentences that were imposed by B.C. courts for contempt in non-violent protest cases, at para. 8:



[66] For these reasons, I conclude that the custodial and monetary components of the sentences imposed on the appellants were too harsh. [67] Nor, at this juncture, would I order any custodial sentence. That is not to say that incarceration is always out of place in civil contempt cases. In some cases, including potentially this case down the road, incarceration and substantial fines may be necessary. However, it would be wrong to cross this bridge now for these first offenders in a situation that cries out for dedicated negotiation among Ontario, the AAFN and Frontenac with a view to reconciliation of the competing interests.

[68] On this final point I could cite almost 20 years of Supreme Court of Canada decisions, from Sparrow to Mikisew, or the eloquent Report of the Ipperwash Inquiry (Queen's Printer for Ontario, 2007). However, I choose to quote the equally thoughtful observation by the motion judge near the end of his reasons in support of the interlocutory injunction he issued on September 27, 2007:

I fully recognize that this case engages complex relations between the Crown and aboriginal peoples. I also recognize that respect for consultation lies at the heart of resolving such disputes even when certainty over the legitimacy and extent of the claim is unresolved. As the Supreme Court of Canada has noted in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 and in Haida, supra, conciliation between aboriginal and non-aboriginal peoples, and their respective claims, interests and ambitions is the fundamental objective of these negotiations.

E. DISPOSITION
[69] I would allow the appeal and set aside the custodial and monetary components of the sentences imposed on the appellants.

[70] The appellants are entitled to their costs of the appeal. They may file costs submissions of not more than five pages within 30 days of the release of these reasons. The respondents should file their responses within 14 days thereafter. The interveners should neither pay nor receive costs.

CT of Appeal Decision

CITATION: Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534

DATE: 20080707

DOCKET: C48642

COURT OF APPEAL FOR ONTARIO

ROSENBERG, FELDMAN and MACPHERSON JJ.A.

BETWEEN:

FRONTENAC VENTURES CORPORATION

Plaintiff (Respondent in Appeal)

and

ARDOCH ALGONQUIN FIRST NATION, SHABOT OBAADJIWAN FIRST NATION, ROBERT LOVELACE, PAULA SHERMAN, DOREEN DAVIS, RANDY COTA, HAROLD PERRY, JANE DOE, JOHN DOE and PERSONS UNKNOWN and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants (Respondent in Appeal)

and

ARDOCH ALGONQUIN FIRST NATION, SHABOT OBAADJIWAN FIRST NATION, ROBERT LOVELACE, PAULA SHERMAN, DOREEN DAVIS, HAROLD PERRY, EARL BADOUR SR., FRANK MORRISON, DAVID MILNE, JOHN HUDSON, JANE DOE, JOHN DOE and PERSONS UNKNOWN

Respondents on Contempt Motion (Appellants)

Christopher Reid and Sarah Dover for the appellants Ardoch Algonquin First Nation, Robert Lovelace and Paula Sherman

Neil J. Smitheman and Tracy A. Pratt for the respondent Frontenac Ventures Corporation

Malliha Wilson, E. Ria Tzimas and Tamara Barclay for the respondent Her Majesty the Queen in Right of Ontario

Julian N. Falconer and Kimberly R. Murray for the intervener Nishnawbe Aski Nation

Mary Eberts for the intervener Native Women’s Association of Canada

Heard: May 28, 2008

On appeal from the sentences imposed by J. Douglas Cunningham A.C.J.S.C. on February 15, 2008.

MACPHERSON J.A.:


A. INTRODUCTION
[1] This is an appeal by Robert Lovelace, Paula Sherman and the Ardoch Algonquin First Nation (“AAFN”) from the sentences imposed on them by Cunningham A.C.J.S.C. for their admitted contempt of court orders made on August 27 and September 27, 2007.

[2] The two court orders allowed the respondent, Frontenac Ventures Corporation (“Frontenac”), to conduct a campaign of exploratory drilling for uranium on lands the AAFN claims is within the traditional territory occupied by its members for centuries.

[3] Mr. Lovelace, Paula Sherman, who is co-chief of the AAFN, and other AAFN members engaged in a peaceful protest and blockade, which together prevented Frontenac’s managers and employees from engaging in any drilling on the land.

[4] After tripartite negotiations among Frontenac, the AAFN and the Government of Ontario (“ Ontario”) failed to resolve the impasse, the motion judge held that the appellants were in contempt of two previous court orders. The appellants admitted their contempt of the court orders, but stated that their conduct flowed from their adherence to Algonquin law.

[5] The motion judge sentenced Mr. Lovelace and Chief Sherman to six months in jail and imposed substantial fines on them and on the AAFN.

[6] Mr. Lovelace and the AAFN appeal their sentences. Chief Sherman appeals the only component of her sentence that remains, the fine.

[7] At a superficial level, this appeal raises the typical legal issues posed by any sentence appeal: did the sentencing judge make an error in principle or were the sentences demonstrably unfit? However, the reality is that this narrow focus cannot resolve the appeal. That is because the conduct of Frontenac, and especially the appellants, requires a broader analytical framework, including consideration of constitutional, civil, criminal, aboriginal and statute law.

[8] At the conclusion of the hearing, the court indicated that the appeal was allowed, Mr. Lovelace was to be released immediately, and the fines imposed on all three appellants were stayed pending the release of the court’s reasons. These are our reasons.

B. FACTS
(1) The parties and events
[9] There are three appellants in this appeal. The first is the Ardoch Algonquin First Nation, a First Nation community located in the Ottawa valley in eastern Ontario.

[10] Robert Lovelace is a member of the AAFN. He is a former chief and currently holds the positions of spokesman and chief negotiator. He is 60 years old and the father of seven children, including four minor children for whom he is a single parent. He is employed as a lecturer and aboriginal student counsellor at Queen’s University and is a full-time instructor at Fleming College. He has no criminal record.

[11] Paula Sherman is a co-chief of the AAFN. She is a single mother of two children and a grandmother. She overcame a lifetime of poverty and hardship to obtain a Ph. D. She is currently employed as a Professor of Native Studies at Trent University. She has no criminal record.

[12] Frontenac is a private uranium exploration company. It holds a mining lease, multiple mining claims, and several agreements with private property owners to conduct mineral exploration on lands in Frontenac County, about 60 miles north of Kingston. Most of the mining claims are on Crown land. Frontenac’s lease, mining claims and agreements are all within an area of land subject to an Algonquin land claim (“the subject property”). The Algonquin land claim was accepted for negotiation by the Governments of Canada and Ontario and negotiations have been ongoing since 1991.

[13] In early 2007, members of the AAFN learned that Frontenac had staked mineral claims on the subject property as authorized under Ontario’s Mining Act, R.S.O. 1990, c. M.14. They also learned from Frontenac’s website that the company was planning “an aggressive exploration and development program” in order to determine if future uranium exploration and development was warranted. The website further stated that “substantial drilling and engineering studies … indicated that there was potential for an open-pit operation on one of these properties.”

[14] In June 2007, the AAFN, Shabot Obaadjiwan First Nation (“Shabot”) and non-aboriginal community groups protested against Frontenac’s uranium exploration plans. The protest led to a blockade that prevented Frontenac from gaining access to the lands on which it wished to carry out mineral exploration.

[15] One of the stated reasons for the protest was a purported failure on the part of Ontario to consult with the AAFN and the Shabot about Frontenac’s exploration plan and the renewal of its mining lease. The appellants assert that Frontenac is not legally entitled to conduct mineral exploration within the subject property until the Crown discharges its constitutional duty to consult with the affected First Nations about the impact of mining activity on the environment, wildlife harvesting and sacred, archaeological, historical and culturally significant sites on the property.

(2) The litigation
[16] In July 2007, Frontenac commenced an action against the AAFN and the Shabot and their leaders, seeking an injunction and $77 million in compensation.

[17] Frontenac first sought an interim injunction against the AAFN and the Shabot to restrain them from interfering with its exploration program. Frontenac’s motion was heard on August 23, 2007. The appellants filed no evidence and made no submissions on this motion. Instead, counsel for the appellants attended and advised the court that they had, respectfully, decided not to participate in the injunction proceedings and had written to the Premier of Ontario to propose negotiations to end the dispute. On August 27, 2007, Thomson J. granted the order sought by Frontenac.

[18] The appellants did not abide by Thomson J.’s order. Frontenac initiated civil contempt proceedings in September 2007, which were rescheduled to November 2007.

[19] Frontenac then sought an interlocutory injunction against the AAFN and the Shabot, restraining them and anyone associated with them from interfering with, disrupting or hindering in any way Frontenac’s legitimate activities on the subject property.

[20] Frontenac’s motion for an interlocutory injunction was heard by Cunningham A.C.J.S.C. on September 24 and 25, 2007. Once again, the AAFN chose not to participate in this proceeding. They did not provide any evidence, including evidence related to their reliance on Algonquin law or their reliance on s. 35 of the Constitution Act, 1982, which recognizes existing aboriginal and treaty rights. On September 27, 2007, the motion judge issued the requested interlocutory injunction.

[21] The appellants did not abide by Cunningham A.C.J.S.C.’s order. The blockade of the subject land continued. Frontenac was unable to continue its uranium exploration program.

[22] Frontenac brought an urgent motion returnable on October 4, 2007 to have the appellants and other alleged contemnors found in contempt of court for not obeying the interlocutory injunction.

[23] With prompting by Cunningham A.C.J.S.C., and with the assistance of Scott J., on October 5, 2007 the parties agreed to enter into mediation for a twelve-week period. This period corresponded with the preliminary and non-invasive period of Frontenac’s exploration schedule. As a result, the contempt proceedings were adjourned. One of the purposes of the mediation as expressed by Cunningham A.C.J.S.C. was to avoid contempt proceedings:

[F]irst of all, I’m very much obliged to all counsel for taking this matter so seriously, and trying to work out a realistic solution to a difficult problem. And I’m also very much obliged to Mr. Justice Scott, for his intervention – which I think has borne some fruit. And I wish you well. I’m very hopeful that the process that you have agreed to become a part of will be successful, and will avoid the necessity of us having to re-convene on November 14th. I think, if good will and a real serious attempt at resolution is to prevail, then I think these problems can be put aside.

[24] Negotiations among Frontenac, the AAFN and Ontario proceeded. However, despite the efforts of the parties, the mediation was not successful and the issues in dispute, especially the mineral exploration issue, were not resolved.

(3) The contempt proceedings and sentencing hearing
[25] After the failed mediation, Frontenac revived its civil contempt motion in relation to alleged non-compliance with the August 27 and September 27 court orders. The motion was heard by Cunningham A.C.J.S.C. on February 12 through 15, 2008.

[26] The appellants did not contest the motion for contempt. They admitted that they had not complied with the two court orders.

[27] The appellants restricted their evidence and submissions to the issue of sentence. Mr. Lovelace testified on behalf of all of the AAFN defendants. The essence of his testimony was that uranium exploration on the subject lands would violate Algonquin law, which imposed a “moratorium” on such activity:

Q. [E]xactly where does the authority, in your view, at least as a matter of Algonquin law, lie for this particular expression, the moratorium?

A. The authority for this particular moratorium lies both with the AAFN Algonquin First Nation – Mr. Perry was our representative Elder who after hearing consensus within the community and at the Family Heads Council – and it also comes from the authority of William Commanda who is the principal Elder of all of the Algonquin people, and after he considered it, after he talked with the people that are important to him and the Algonquins that he feels are – are representative of the Algonquin voice, then he also gave his hand to signing that moratorium.

. . .

With the voice of William Commanda, all Algonquins have the opportunity to heed that law. All Algonquins can turn to William Commanda and say, I respect this Elder, I respect his teachings, I respect his learned opinion, and they can either subscribe to that or not.

[28] On February 13, 2008, the motion judge declared the AAFN defendants in contempt of the August and September 27, 2007 court orders. One contemnor, former chief Harold Perry, a 78-year-old man in poor health, then purged his contempt by providing a permanent undertaking to the court to abide by the order of September 27, 2007.

[29] On February 15, 2008, the motion judge delivered his reasons for sentencing the remaining contemnors. Mr. Lovelace and Chief Sherman were each sentenced to six months in jail. Mr. Lovelace was fined $25,000, Chief Sherman was fined $15,000, and the AAFN community was fined $10,000. The motion judge also imposed a fine on the three respondents of $2000 per day for future non-compliance. He struck AAFN’s statement of defence in the action brought by Frontenac and ordered that “no other motions or applications to this court may be made by them until their contempt has been purged.”

[30] Immediately after the sentences were imposed, Chief Sherman, a single mother responsible for three children, provided a permanent undertaking to the court to abide by the September 27, 2007 order. As a result, the motion judge discharged the custodial portion of her sentence.

[31] Robert Lovelace did not purge his contempt. He was incarcerated from February 15 to May 28, 2008. On the latter date, at the conclusion of the appeal hearing, he was ordered to be released.

[32] Mr. Lovelace appeals the custodial portion of his sentence. All three appellants appeal the fines imposed on them. The appellants do not appeal the component of the order striking their pleadings and restricting their future access to the courts while their contempt continues.

C. ISSUE
[33] The sole issue on the appeal is whether the sentences imposed on the appellants were fit sentences.

D. ANALYSIS
[34] This case was prosecuted by way of a motion for civil contempt. In a civil contempt case, the range of potential penalties is prescribed in subrules 60.11(1) and (5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

. . .

(5) In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if he or she fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

[35] In his reasons for sentence, the motion judge observed that counsel for the appellants agreed that his clients’ contemptuous behaviour came “perilously close to criminal contempt.” McLachlin J. for the majority of the Supreme Court of Canada in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, explained that the distinction between civil and criminal contempt “rests in the concept of public defiance that accompanies criminal contempt.” She illustrated the distinction as follows:

A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.

[36] In the Canadian Judicial Council’s Guidelines on the Use of Contempt Powers (May 2001) at p. 13, the Council described public disobedience of an injunction as “a classic criminal contempt.” The Council stated at p. 14 that, “In many cases arising out of disobedience of an injunction, the application for contempt will be brought in the civil proceedings, but the court may nevertheless make a finding of criminal contempt.”

[37] The motion judge in this case did not make a finding of criminal contempt. The choice of appropriate penalty for contempt must recognize an important distinction between civil and criminal contempt: the purpose of a sentence for criminal contempt is punishment, whereas the purpose of a sentence for civil contempt is coercive or persuasive, designed to enforce the rights of a private party: see Poje v. Attorney General (B.C.), [1953] S.C.R. 516 at 517. However, I would not place significant weight on this differential purpose in reviewing the fitness of the sentences imposed by the motion judge for civil contempt. As appellants’ counsel acknowledged at the sentencing hearing, the nature of the appellants’ conduct in repeatedly disobeying the interim and interlocutory injunctions came extremely close to criminal contempt and may potentially have justified such a finding by the motion judge.

[38] As mentioned above, the motion judge imposed a combination of penalties – six months in jail for Mr. Lovelace and Chief Sherman, fines ranging from $10,000 to $25,000, prospective fines for future disobedience of $2000 per day, and striking the appellants’ pleadings.

[39] There is no doubt that these are serious, even stiff, penalties. Incarceration for professional people who are respected leaders of their community and substantial fines for the same leaders and for an impoverished aboriginal community are onerous penalties.

[40] In imposing these sentences, the motion judge grounded his reasons in the rule of law. The core of the rule of law, in his view, was respect for and compliance with court orders:

Compliance with orders of this court is not optional.

. . .

When one ignores orders of our courts, or takes the law into one’s own hands, respect for our court system evaporates, and our entire society suffers.

. . .

Mr. Lovelace says that while he respects the rule of law, he cannot comply because his Algonquin law is supreme. He says he finds himself in a dilemma. Sadly, it is a dilemma of his own making.

His apparent frustration with the Ontario government is no excuse for breaking the law. There can only be one law, and that is the law of Canada , expressed through this court.

[41] In this court, the appellants and the interveners made lengthy submissions about the nature of the rule of law. They argued that the rule of law is not fully described as respect for court orders. Their submissions were primarily based on Laskin J.A.’s articulation of the rule of law in another recent case dealing with an aboriginal occupation of disputed land. In Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 at paras. 140-42, Laskin J.A. stated:

[N]o one can deny the importance of the rule of law in Canada . The preamble to our Constitution states that Canada is founded on principles that recognize the rule of law. The Supreme Court of Canada has said that it is one of our underlying constitutional values. See Reference re Secession of Quebec, [1998] 2 S.C.R. 217; and Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.

But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is “highly textured.” See Reference re Resolution to Amend the Constitution, supra, at 805. One dimension is certainly that focused on by the motions judge: the court’s exercise of its contempt power to vindicate the court’s authority and ultimately to uphold the rule of law. The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected.

Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

[42] I fully accept and agree that compliance with court orders is an important, but not exclusive, component of the rule of law. The motion judge in his sentencing decision did not address the other dimensions of the rule of law referred to in Henco. However, I do not think that he erred in focusing at the sentencing stage of contempt proceedings on the dimension of the rule of law that relates to ensuring that orders of the court are enforced. The following passage from McLachlin J.’s reasons in United Nurses of Alberta, at p. 931 supports this view:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [Emphasis added.]

[43] In my view, the stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.

[44] In the present case, as in Henco, the competing interests include the asserted aboriginal rights of the Algonquin First Nations, Frontenac’s private interest in pursuing its exploration plan in accordance with valid mining claims and agreements, and respect for the Crown property rights of Ontario.

[45] And how are these interests to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada – consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests: see R. v. Sparrow, [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of Heritage), [2005] 3 S.C.R. 388. The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation: Haida Nation, Taku River and Mikisew Cree.

[46] Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

[47] I am quick to point out that in this case, the AAFN did not appeal either the interim or the interlocutory injunctions granted by Thomson J. and Cunningham A.S.C.J.C. It is thus not for this court to address the merits of either order. However, I think it is important to give judicial guidance on the role to be played by the nuanced rule of law described in Henco when courts are asked to grant injunctions, the violation of which will result in aboriginal protestors facing civil or criminal contempt proceedings.

[48] Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

[49] I turn then to the sole issue on this appeal – the merits of the sentencing decision. In my view, and with great respect to a judge trying conscientiously to resolve a difficult, bordering on intractable problem, the sentences he imposed are too harsh. I say this for several reasons.

[50] First, in his reasons the motion judge focused exclusively on punishment and deterrence, both specific and general. He said nothing about promoting reformation and rehabilitation of leaders of a First Nation community. Both sides of the standard analytical framework in sentencing cases needed to be assessed in a balanced fashion.

[51] Second, the motion judge failed to refer to the mitigating factors that were present in this case. Importantly, both Mr. Lovelace and Chief Sherman were first offenders. Until the events giving rise to their protest and blockade, they had led lives characterized by leadership in their community, including leadership in demonstrating respect for Canadian law. Both candidly conceded their contempt. These significant facts should have been acknowledged and taken into account in fashioning an appropriate sentence.

[52] In addition, some account should have been taken of the way in which the protest and blockade were conducted. The appellants’ conduct was peaceful, with no violence and no damage to property.

[53] Moreover, there should have been recognition of the limited purpose of the appellants’ conduct. The purpose was not a “no entry” purpose, whereby non-Algonquins could not set foot on the disputed property. Rather, the purpose was to prevent mining exploration on lands which were, and still are, subject to land claim negotiations with the Governments of Canada and Ontario.

[54] All of these factors ought to have been considered by the motion judge when fashioning appropriate sanctions for their acts of contempt. Another way of saying this is that the sentencing principles articulated by the Supreme Court of Canada in R. v. Gladue (1999), 133 C.C.C. (3d) 385, are applicable when fashioning a sentence for civil or criminal contempt on the part of aboriginal contemnors.

[55] In Gladue, the Supreme Court of Canada was asked to consider the purpose of s. 718.2(e) of the Criminal Code, which requires that a court take into account the principle that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” [emphasis added]. At para. 50, the court referred to the “acute problem of the disproportionate incarceration of aboriginal peoples.” The court accepted that the purpose of s. 718.2(e) is to provide sentencing judges with the flexibility and authority to “resort to the restorative model of justice in sentencing aboriginal offenders and to reduce the imposition of jail sentences where to do so would not sacrifice the traditional goals of sentencing” (para. 50). According to the court, sentencing judges must pay particular attention to the unique circumstances of aboriginal offenders, namely: “[t]he unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts” and “[t]he types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection” (para. 66).

[56] Frontenac and Ontario contend that the Gladue principles should not be extended beyond the criminal context because criminal law sentencing is designed to achieve entirely different objectives from sentencing for contempt. I do not agree with this submission. The Gladue principles have already been extended to a variety of other contexts in the criminal justice system, including bail, parole eligibility, dangerous offender applications, and disposition hearings of the Ontario Review Board. In this last context, in R. v. Sim (2005), 78 O.R. (3d) 183 ( C.A. ), Sharpe J.A. said, at para. 16: “I do not think that the principles underlying Gladue should be limited to the sentencing process and I can see no reason to disregard the Gladue principles when assessing the criminal justice system’s treatment of NCR accused.”

[57] Although Gladue was focused primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system’s engagement with Canada’s First Nations. I note three factors in particular that were highlighted in Gladue: the estrangement of aboriginal peoples from the Canadian justice system, the impact of years of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member. Those factors were all at stake in this case.

[58] First, while the appellants did not contest the injunctions and admitted that they were in breach of the orders, the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation. The fact that persons of the stature of Mr. Lovelace and Chief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation and the other problems discussed in Gladue at paras. 67-69. Finally, imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system. That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture’s sense of justice and this First Nation’s sense of justice.

[59] For these reasons, I cannot agree that the principles underlying the Gladue decision have no application in the civil contempt context. Rather, as in Gladue, the court must look at the unique systemic or background factors at play in this case.

[60] What then are the unique systemic or background factors that played a part in bringing the AAFN and two of its leaders before the courts to be sentenced for contempt? The first background factor is that there is an existing land claim negotiation between the Algonquin Nation and Ontario. In Haida Nation, the Supreme Court of Canada held at pp. 532-36 that when the Crown has knowledge that a First Nation community has claimed rights or title in respect of a territory, it must consult the affected community and, where indicated, must accommodate aboriginal concerns before approving any activity that could have an impact on the claimed rights or title. In Taku River, at p. 567, the Supreme Court also held that the fact that a land claim has been accepted by the Crown for negotiation establishes a prima facie case that the claim has merit. Ontario accepted the Algonquin land claim for negotiation in 1991: see Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, [2007] O.J. No. 3360 (S.C.J.) at para. 25. Haida Nation and Taku River together instruct that the existing, and as yet unresolved, Algonquin land claim – the basis for the AAFN’s protest and blockade – cannot simply be dismissed as illusory, flawed or weak.

[61] The second background factor that played a part in bringing the appellants before the courts is the nature and content of Ontario’s Mining Act. It is a remarkably sweeping law. It establishes a “free entry” system whereby all Crown lands, including those subject to aboriginal land claims, are open for prospecting and staking, without any consultation or permitting required. Anyone with a prospector’s licence may stake claims and prospect for minerals on any Crown land. Once a claim has been staked, in accordance with the Act, the Mining Recorder must record the claim. There is nothing in the Mining Act about considering aboriginal land claims or interests.

[62] The intersection of these two background circumstances creates an obvious problem, indeed the problem that lies at the heart of this case. What Frontenac wants to do on Crown land – staking and exploration – is legal under the Mining Act. However, the appellants’ response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of s. 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada. In summary, the appellants’ character and circumstances, their actual conduct, and the difficult legal context within which it occurred, should have counted as significant mitigation when sentences were imposed on them. The circumstances of the offences and these aboriginal offenders are such that, in accordance with the Gladue principles, sentences of incarceration were inappropriate.

[63] The third reason for concluding that the sentences imposed on the appellants were too harsh is that they are considerably more severe than the sentences imposed in other protest/blockade cases. In MacMillan Bloedel Ltd. v. Brown (1994), 88 C.C.C. (3d) 148, the British Columbia Court of Appeal allowed in part appeals from sentences for criminal contempt consisting of public disobedience of court orders related to logging operations in Clayoquot Sound. McEachern C.J.B.C., for the majority, discussed past sentences that were imposed by B.C. courts for contempt in non-violent protest cases, at para. 8:

In most cases the courts have endeavoured to deal firmly, but leniently with those found guilty of contempt… In the more recent disputes, although short, unsuspended terms of imprisonment were imposed in some of the [abortion clinic protest cases (e.g., Everywoman’s Health Centre Society v. Bridges (1990), 54 B.C.L.R. (2d) 273 and R. v. Bridges (No. 2) (1989), 61 D.L.R. (4th) 154)], sentences have been nominal fines or suspended terms of imprisonment and probation.

In MacMillan Bloedel, the majority reduced the sentences of those who had pleaded guilty from 45 days to 30 days imprisonment (one appellant received a suspended sentence) and upheld the sentences of 45 days for offenders who had not pleaded guilty. The majority set aside fines of up to $1500 imposed against each of the appellants because there had been no inquiry into their ability to pay.

[64] A further illustration of the tendency of courts to impose nominal fines or short terms of imprisonment in blockade/protest cases is the recent decision of Peter Kiewet Sons Co. v. Perry, 2007 BCSC 305. Sixteen individuals were arrested for breaching a court-ordered injunction that restrained protestors from obstructing work crews in building a highway. Seven of the defendants were found guilty of criminal contempt. One of these defendants, who did not admit her contempt, was sentenced to 14 days imprisonment, while the other six were sentenced to a fine of $5000 or 250 hours of community service. The remaining defendants, who acknowledged their contempt but who “did not engage in open flagrant and continuous violation of the court order” were sentenced to a $250 fine or 24 hours of community service (with one exception of a $500 fine or 50 hours of community service for a second-time offender: see para. 28). Against the backdrop of these and many other similar cases, custodial sentences of six months and fines of $10,000 to $25,000 for first time offenders are very high indeed.

[65] Fourth, I observe that, by the time of the sentencing hearing on February 15, 2008, the Shabot contemnors and Chief Perry of the AAFN had purged their contempt by undertaking not to continue their protest and blockade activities. Only Mr. Lovelace and Chief Sherman remained. It appeared that a process initiated with care, sensitivity and fairness by the motion judge in the autumn of 2007 was bearing fruit. In my view, continued adherence to the conciliatory values that drove that autumn process suggested a more moderate sentence for the only two contemnors still not complying with the earlier court orders. On February 15, 2008, in light of the progress already made, much of it with the encouragement and assistance of the motion judge, there was no need to bring down the hammer of long jail sentences and very substantial fines.

[66] For these reasons, I conclude that the custodial and monetary components of the sentences imposed on the appellants were too harsh. Accordingly, I would allow the appeal and set aside both components of the sentences, including the prospective fines for future disobedience. In my view, in Mr. Lovelace’s case, a fine of $1000 would have been appropriate. However, having regard to the time he has spent in custody, I refrain from imposing any penalty on him. I would not fine Chief Sherman or the community who have no ability to pay the fines. I would leave intact the pleadings component of the sentencing decision, with which the appellants do not take issue.

[67] Nor, at this juncture, would I order any custodial sentence. That is not to say that incarceration is always out of place in civil contempt cases. In some cases, including potentially this case down the road, incarceration and substantial fines may be necessary. However, it would be wrong to cross this bridge now for these first offenders in a situation that cries out for dedicated negotiation among Ontario, the AAFN and Frontenac with a view to reconciliation of the competing interests.

[68] On this final point I could cite almost 20 years of Supreme Court of Canada decisions, from Sparrow to Mikisew, or the eloquent Report of the Ipperwash Inquiry (Queen’s Printer for Ontario, 2007). However, I choose to quote the equally thoughtful observation by the motion judge near the end of his reasons in support of the interlocutory injunction he issued on September 27, 2007:

I fully recognize that this case engages complex relations between the Crown and aboriginal peoples. I also recognize that respect for consultation lies at the heart of resolving such disputes even when certainty over the legitimacy and extent of the claim is unresolved. As the Supreme Court of Canada has noted in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 and in Haida, supra, conciliation between aboriginal and non-aboriginal peoples, and their respective claims, interests and ambitions is the fundamental objective of these negotiations.

E. DISPOSITION
[69] I would allow the appeal and set aside the custodial and monetary components of the sentences imposed on the appellants.

[70] The appellants are entitled to their costs of the appeal. They may file costs submissions of not more than five pages within 30 days of the release of these reasons. The respondents should file their responses within 14 days thereafter. The interveners should neither pay nor receive costs.

RELEASED: July 7, 2008 (“M.R.”)

“J.C. MacPherson J.A.”

“I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”