Supreme Court upholds provinces' duty to consult Indigenous communities

From the Press Release below: "Frontenac [the mining company, Frontenac Ventures Corporation] argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions.

The Supreme Court has now dismissed Frontenac's appeal, with costs."

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ARDOCH ALGONQUIN FIRST NATION (AAFNA) ARDOCH, ONTARIO CANADA K0H 1C0 613-479-5534 Honorary Chief: Harold Perry December 9, 2008 - For Immediate Release Supreme Court Upholds Decision Releasing Native Protesters Big Victory for Civil Rights In February, 2008 Justice Cunningham of the Ontario Superior Court sentenced Robert Lovelace, former Chief of the Ardoch Algonquin First Nation, to 6 months in jail because he refused to end his peaceful protest against uranium exploration on Algonquin land. The government of Ontario had refused to consult with the Algonquins before approving the aggressive exploration program in eastern Ontario. In addition to jail, Lovelace was fined $25,000; his community was fined $10,000 and Chief Paula Sherman, $15,000. A few weeks after Lovelace was jailed, six leaders of the Kitchenuhmaykoosib Inninuwg (KI) were sentenced on contempt charges for their peaceful opposition to drilling for platinum on their traditional lands in northern Ontario. Judge Cunningham ignored all of the arguments made by the Algonquins' lawyer on the need for the Court to enforce the government's obligation to consult. Cunningham said the only thing he was interested in was enforcing the rights of the mining company to blast and drill, and that he would jail any protesters who opposed the illegal exploration. On May 28, 2008 a three member panel, the Ontario Court of Appeal, overturned the sentences and freed Lovelace and the KI 6. In their decision the Court blamed Ontario's "sweeping" Mining Act, which allows mining companies to conduct aggressive exploration, including removing trees, blasting, drilling, trenching and the construction of roads on First Nations' land, without any consultations or environmental assessment. The Court also criticized the McGuinty government for ignoring repeated requests by the Algonquins for consultations and instead supporting the jailing of Mr. Lovelace and the punitive fines imposed on the community and its leaders. The Court of Appeal also expressed serious concern that Justice Cunningham ignored numerous Supreme Court decisions which require governments to consult with affected First Nation communities before approving industrial activities which could affect their rights. The Court said that Cunningham should have ensured that Ontario had consulted with the Algonquins before ordering them to end their protest and then jailing them when they continued to demand consultations in defiance of his injunction. The mining company, Frontenac Ventures Corporation, applied to the Supreme Court of Canada for leave (permission) to appeal, arguing that the Court of Appeal's decision amounts to a "license to blockade". Frontenac argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions. The Supreme Court has now dismissed Frontenac's appeal, with costs.

"This is an important victory for civil rights and the rule of law" said Robert Lovelace.

"The government will no longer be able to ignore its legal responsibilities while we are jailed for trying to uphold the law. We will continue to resist uranium mining and exploration and we call on the government to finally begin consultations with us so that further conflict and litigation can be avoided. We do not understand why they continue to refuse to consult with us in spite of several court orders." Court of Appeal decision:

http://www.ontariocourts.on.ca/decisions/search/en/OntarioCourtsSearch_VOpenFile.cfm?serverFilePath=D%3A%5CUsers%5COntario%20Courts%5Cwww%5Cdecisions%5C2008%5Cjuly%5C2008ONCA0534%2Ehtm

For more information, call: Robert Lovelace: (613) 532-2166 or Chris Reid (lawyer): (416) 629-3117.

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From: First Peoples Human Rights Coalition <info@firstpeoplesrights.org>

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Once again, the Supreme Court has upheld the right of Indigenous Peoples to be consulted about any proposed uses of their traditional lands, and to have their land rights accommodated, and it is also their right to say "No" to development.

In Ontario, this legal battle played out between Frontenac Ventures (uranium prospecting company) and the Ardoch Algonquins in eastern Ontario, in the context of mining, the most powerful industry in Canada with the most invasive rights. The Mining Act gives prospectors (speculators) the right to option and stake rural land ... any land, private or 'public', Indigenous or not, yours or mine ... damaging and destroying natural habitat, backyards, contaminating entire watersheds, etc. Homeowners and Indigenous Peoples alike had no recourse to stop this.

Now Indigenous Peoples can legally stop the destruction of their traditional lands. They can block exploration, construction, etc. that is occurring without their agreement. An injunction against them cannot be granted, as in the past, (notably, Caledonia) if the Crown has not fulfilled its duty to consult with them about the land use.

A ruling of the Supreme Court is law in Canada, and applies to other similar situations where either Aboriginal title ('land claims') or Aboriginal rights (traditional Indigenous lands) may apply. RECAP: What does this court decision mean for Six Nations and Brantford? Today's news release, the Supreme Court dismissing Frontenac Venture's appeal, has direct application to Six Nations and Brantford. In my understanding, Six Nations Confederacy people have prevented several housing/industrial developments in Brantford, on land that is currently either under claim with title to be negotiated with the federal government, or is traditional Six Nations land where they hold Aboriginal rights. Federal negotiations are currently in progress on 28 Six Nations claims, with an offer for one (Welland Canal lands) currently on the table. Negotiation of the Brantford claims will not occur any time soon: The average time for the federal government to settle one simple specific claim (like the Welland Canal) is 10 years; complex, comprehensive claims, like Six Nations overriding claim to the Haldimand Tract, typically take at least 30 years. Thus, federal negotiations provide no solution for the current development issues in between Brantford and Six Nations. The provincial government issues approvals for development at the request of municipalities. The Ontario provincial government and bureaucracy studiously ignore both existing land claims for Aboriginal title, and Aboriginal rights on traditional Indigenous lands, thus evading the clear and repeated rulings of the Supreme Court that the province must consult with Indigenous Nations prior to issuing any land use approvals:

2005

http://www.lawsonlundell.com/resources/TheCrownsDuty.pdf

Recent case law from the Supreme Court of Canada (Haida and Taku) has confirmed that the Crown has a duty to consult, and if necessary, accommodate Aboriginal interests when it has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.

Ontario has not consulted, but blunders ahead with development in violation of Canadian law. Many Canadians I have spoken to about this situation are in disbelief at this blatant flaunting of the law by our provincial governments. Canadians have blind faith that our governments obey the law, as we are all expected to do. It is almost unbelievable to us that the Ontario government would risk dissension, confrontation and violence this way, but in fact, this is exactly what our provincial government is doing: 'Caledonia' could have been prevented if Ontario had consulted before issuing development approval for Douglas Creek Estates. Because of this undeserved 'blind faith' of Canadians, our governments are running rampant over the rights of Indigenous Peoples, while convincing the public that it is the Indigenous Peoples blockading developments who are disobeying the law. Not so: Indigenous Peoples preventing development are in fact upholding Canadian law, demanding that the province "consult, and accommodate" their rights, as the Supreme Court has ordered. In May 2008, the City of Brantford requested an injunction from the court to stop Six Nations from blocking construction. The judge in Ontario Superior Court in Brantford adjourned the injunction hearing (to a later date), but imposed terms amounting to an injunction:

http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2008/2008canlii30282/2008canlii30282.html

Pending the return of the motion for an interlocutory injunction pending trial, the defendants are ordered to cease and desist from blocking, interfering or in any way obstructing development/construction related activities on the lands set out in Schedule A to the Notice of Motion including blocking access to development sites, standing in front of machinery/equipment or otherwise interfering with such machinery's/equipment's operation or in any way threatening or intimidating workers at the development sites.

While waiting for the permanent injunction hearing to be held, Six Nations people continued to block the developments, on one occasion confronted by cement trucks trying to push past them. Police made arrests, based on the 'temporary' injunction. Confederacy Chiefs and Council toured the lands in question to make their intentions clear. Police have continued to arrest Six Nations people on and near these sites, though developers have pulled out and development appears to be at a standstill. In July 2008, the Ontario Court of Appeal (OCA) ruled on the similar case regarding the legality of Frontenac Ventures injunction against of the Ardoch Algonquins:

http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdf

[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.

To emphasize, the Ontario Court of Appeal ruled that before granting an injunction against Aboriginal people ...

"the court must ... ensure that ... the Crown has fully and faithfully discharged its duty to consult". Frontenac Ventures appealed this OCA ruling to the Supreme Court, and the Supreme Court has now upheld the above ruling. The Crown in Ontario has not consulted with Six Nations about any of the developments that it already approved in Brantford. In fact, Dalton McGuinty specifically told developers in the Haldimand Tract not to consult with Six Nations, although many were quite willing to negotiate agreements with the Confederacy, and some already did. The implication of this most recent Supreme Court ruling for Six Nations and Brantford is this: When the injunction hearing resumes in Brantford (Dec 22-23) it is clear that the court must dismiss the City's injunction request. No doubt the court will also 'remind' Ontario that they must consult with Six Nations before issuing any development approvals in the Haldimand Tract. The police will no longer have any responsibility, any ability to detain, stop, arrest Six Nations people who are blocking development. In other words, the implications for development in the Haldimand Tract may be monumental. The implications for Six Nations are pure victory, total vindication of what they have been saying all along: Development within six miles of the Grand River cannot proceed unless the Haudenosaunee Six Nations Confederacy agrees. The court hearing for the City of Brantford's request for injunction against Six Nations is scheduled for Dec 22-23 (to be confirmed) in Brantford Superior Court. In other news about "duty to consult" ... http://www.theenergynews.com/news/cp_article.php?storyid=4051 EDMONTON _ An aboriginal band has threatened the very basis of Alberta's oilsands industry by filing a court challenge to the province's system of granting land tenure. ... "It is deeply troubling to our First Nation that Alberta has granted these tenures within our traditional lands and set the stage for exploration and potentially massive oilsands production without any consultation with our First Nation before the grants of tenure." --- Canada's economy is entirely dependent on resources taken from traditional Indigenous land, without consultation, without accommodation, without compensation, without consent, and without any 'good faith' on Canada's part. The Supreme Court of Canada no longer allows this. Canada's police cannot stop Indigenous Peoples from blocking development, mining, logging ... I've thought for a long time that Canada has to face the truth. I can't see how our governments can ignore it now. Economics dictates that agreement must be sought, rights must be respected, and peace and rule of law must be restored. Throughout our history Canada has always used force ... violence ... incarceration ... to squash Indigenous demands for justice, justice now far too long dismissed, denigrated, denied. The Supreme Court has just closed the door on Canada's use of force against Indigenous Peoples upholding their land rights, because they are breaking no laws. granny