April 5, 2008 Saturday
B.C. ruling spells trouble for Ontario mining
SECTION: IDEAS; Pg. ID07
LENGTH: 731 words
The McGuinty government has repeatedly slammed the door on First
Nations people trying to establish their rights to negotiate
development in their territories. This has created a confrontational
situation that now threatens to throw mining and logging in the
province into limbo.
It didn't have to be this way, says Doreen Davies, chief of the Shabot
Obaadjiwan First Nation in Eastern Ontario. The Shabot and the
neighbouring Ardoch First Nations have always been ready to negotiate,
she says, and with the province refusing to sit down with them, the
only option left lies in legal action.
An appeal is underway against the jailing of Robert Lovelace, a Queen's
University lecturer and an Ardoch nation member sentenced to six months
in jail and fined $25,000 for refusing to halt attempts to block
drilling for uranium on lands claimed by the two Indian nations.
The appeal lawyer, Michael Swindon, says he will argue that the Ontario
Appeal Court should follow a B.C. Supreme Court decision delivered last
summer that, if followed, would make Ontario's Forestry and Mining Acts
inoperable everywhere an Indian land claim exists.
The B.C. decision, if adopted, says it is no longer necessary for
aboriginal people to prove title to land in order to get control of
their territories.
When the Constitution was patriated in 1982, a section was added
declaring that all aboriginal rights - not just title - were to be
recognized and honoured.
This means, the B.C. court said, that hunting and fishing rights are
enough to give First Nations control over their territories. They don't
have to prove title.
And if they establish such rights, provincial legislation no longer
applies in their territories; only the federal government has
jurisdiction to deal with any issues raised within their lands. In
effect, provincial legislation goes out the window anywhere there is a
land claim.
Swindon says he will argue in the Lovelace appeal that the Ontario
Supreme Court had no constitutional jurisdiction to sentence Lovelace,
because it didn't take the B.C. decision into consideration.
The appeal will also bear on the sentencing three weeks ago of six
natives from the Kitchenuhmaykoosib Inninugug (KI) First Nation, also
jailed for six months, for blocking drilling by Platinex Inc., about
600 kilometres north of Thunder Bay.
The jailings follow on obligations and commitments that Queen's Park
failed to honour. During the 2003 election, Premier Dalton McGuinty
promised there would be no industrial development in the northern
boreal until a comprehensive land-use plan was in place. There still is
no such plan . The province is allowing development to push into the
northern boreal without acknowledging that Indians have full rights to
negotiate how development occurs within their territories. Meanwhile,
it is turning a blind eye as Indians are jailed for protesting.
In Eastern Ontario, the Ardoch and Shabot First Nations are protesting
because the province failed to follow a Supreme Court of Canada
decision requiring Ontario to negotiate with First Nations before
exploration proceeded on their territories.
Again, the province is turning a blind eye to the jailing of Lovelace,
who blocked attempts by Frontenac Ventures Corp. to proceed with
drilling in the absence of such negotiations.
In the B.C. case, Justice D. H. Vickers said allowing logging would be
an expropriation of Tsilhqot'in rights, and the province had no
constitutional authority to do this. Accordingly, he said, the
provisions of the B.C. Forest Act did not apply to Tsilhqot'in
territory. Vickers noted his decision could have serious implications
for B.C.'s forestry industry, because so many areas are subject to
Indian land claims.
Nevertheless, he quoted with approval an academic report that said:
"In reality, it appears that the province has been violating aboriginal
title in an unconstitutional and therefore illegal fashion ever since
it joined Canada in 1871. What is truly disturbing is not that the
province can no longer do so, but that it has been able to get away
with it for so many years."
So, Ontario has two choices. It can continue to play hardball, or it
can call a halt to exploration in both territories while it seeks to
reconcile differences. The danger it faces is that if it doesn't opt
for reconciliation, it may lose everything in court.
Cameron Smith can be reached at
camsmith @ kingston.net
