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support for KI and Ardoch and calls from environmental groups, unions, churches and community activists to reform the outdated Mining Act to allow communities to say ‘no’ to mining.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.
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