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reform the outdated Mining Act to allow communities to say 'no' to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
