(Power-Appeal) B.C. First Nations win two court rulings over consultation and accommodation VANCOUVER _ Some aboriginal groups in British Columbia scored two major victories Wednesday as the B.C. Court of Appeal ruled they must be consulted before projects are undertaken. The first ruling involves an appeal by the Carrier Sekani Tribal Council over a 2007 electricity purchase agreement between B.C. Hydro and Alcan in northwestern B.C. The court ruled that the B.C. Utilities Commission and BC Hydro failed to properly consult the First Nations. The power sales deal from Alcan´s Kemano facility was a condition set out by the company in order to proceed with a $2-billion upgrade. In approving the deal, the commission had ruled that no such consultations with the Carrier Sekani were necessary. The second case involved some First Nations in the southcentral Interior who said they were not properly consulted on a plan by BC Hydro and the BC Transmission Corp., to build a $700 million high-voltage transmission line from the Interior to the Greater Vancouver area. The court ruled in the Alcan case that it was an example of what was "foreseen by the Supreme Court of Canada in Haida Nation versus B.C. where the broad principles of the Crown´s duty to consult and, if necessary, accommodate aboriginal interests are to be applied to a concrete set of circumstances." In the Alcan ruling, the judges ruled that consultation arises in relation to BC Hydro´s decision to buy electricity from Rio Tinto Alcan Inc. that is surplus to its smelter requirements. The Carrier Sekani said the diversion of water for Alcan´s use infringes on its rights and title and that no consultation ever took place. In its unanimous decision, the judges ordered the utilities commission to reconsider the issue. In the second case, the court found that the decision to certify a new transmission line . . . "has the potential to profoundly affect the appellants´ aboriginal interests." "Like the existing line (installed without consent or consultation), the new line will pass over land to which the appellants claim stewardship rights and aboriginal title." The judge, also in a unanimous decision, said "if consultation is to be meaningful, it must take place when the project is being considered and continue until the process is completed." The court ordered the commission to suspend its decision and have a new hearing. http://www.oilweek.com/news.asp?ID=21283

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."

_______________________

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.

----------------------- *If you re-print, copy, archive or re-post this message, please retain this credit. =-=-=-=-=-=-=-=-= UBCIC's Protecting Knowledge Conference site: http://www.ubcic.bc.ca/Resources/conferences/PK.htm

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

*****

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

Supreme Court buckles to provincial pressure? BC Am I reading this right? The Supreme Court refuses to hear cases re Aboriginal Title? In all of Canada or just BC? What kind of crap is this? I know the provincial courts buckle to regional politics/politicians, but I am deeply shocked at the Supreme Court's apparent political collusion. So ... how does one go above the Supreme Court of Canada? The International Criminal Courts, I suppose. I wonder if they can use their court-ordered funding for that? A precedent from the ICC re Aboriginal Title in Canada would be helpful. granny Okanagan Nation Alliance & Shuswap Nation Tribal Council

Dec 04, 2008 13:14 ET

SCC Decision Leaves Land Question Unresolved

Attention: Assignment Editor, Business/Financial Editor, Environment Editor, News Editor, Government/Political Affairs Editor VANCOUVER, BC, PRESS RELEASE--(Marketwire - Dec. 4, 2008) - The Okanagan and Secwepemc Nations and their member Bands, Adams Lake, Neskonlith, and Splatsin, are bitterly disappointed with the Supreme Court of Canada's denial of the Okanagan Nation's application for leave to appeal the B.C. Court of Appeal's decision severing the Aboriginal title issues from the case of British Columbia v. Okanagan Indian Band. The Province succeeded in its strategy to delay once more having the land questions answered by the courts, by their application to remove the Aboriginal title issue from a trial, where the Band had been awarded an historic cost order to resolve this very issue.

The decision today is a loss to everyone in this Province. The Province has recently lost a large number of cases because it has not fulfilled its obligations arising from unextinguished Aboriginal rights and title. The Province's illegal conduct places Crown granted tenures increasingly at risk, and adds to economic instability. The decision today delays a Court addressing this problem.

The Province continues to claim 100% ownership and jurisdiction over the lands and the forests in the absence of Treaty. Is that claim legal? What changes to law and policy need to be made by the Province, in order to achieve reconciliation? These are the questions which the Province did not want the Court to answer.

Okanagan Indian Band Chief Fabian Alexis stated: "We are deeply disappointed by this outcome. The Okanagan people are committed to continue to fight for recognition of our Aboriginal title as our ancestors have done for generations. We have tried to address this through the courts, but given the Supreme Court of Canada's decision, we are going to pursue all other options. The problem is not going away."

"The Supreme Court of Canada's decision totally frustrates its earlier order that the Province pay the Bands' legal costs so that we could access justice regarding the unresolved land question", said Splatsin First Nation Chief and Shuswap Nation Tribal Co- Chair, Wayne Christian. "It is a total waste of public money because nothing has been resolved. Our communities continue to live in poverty, and what caused this litigation in the first place will only occur again. In spite of the New Relationship and the many Court victories of First Nations, the Province remains committed to the status quo. The Courts are needed if systemic change from denial to recognition is to occur."

Adams Lake Indian Band Chief Nelson Leon observed: "In denying the Band leave to appeal, the Court has bought into the Province's procedural manoeuvres to avoid addressing the land question, something the Province has done since B.C. joined Confederation in 1871. For years it was illegal for First Nations to go to Court to advance recognition of our title and rights. Our ancestors, the Chiefs of the Shuswap, Okanagan and other Tribes of the Interior of British Columbia, in a 1911 Petition to the federal government to settle the land question, described the Province's intransigence:

"Premier McBride, speaking for the B.C. government, said "We Indians had no right or title to the unsurrendered lands of the province." …. This means that the B.C. government asserts that we have no claim or title to the lands of this country. Our tribal territories which we have held from time immemorial, often at cost of blood, are ours no longer if Premier McBride is correct. We are all beggars, and landless in our own country. We told him through one of our chiefs we were of the opposite opinion from him, and claimed our countries as hitherto. We asked that the question between us be submitted for settlement to the highest courts, for how otherwise can it now be settled? His answer was: "There was no question to settle or submit to the courts."

Chief Leon added: "The decision which was under appeal was the Province's third attempt in this case to avoid a trial about Aboriginal title. Today's decision means that the Province has sidelined the issue for now but, sadly, nothing has been resolved."

Neskonlith Indian Band Chief Judy Wilson stated: "By leaving the land question unresolved, the Court's decision continues the economic climate of uncertainty about tenures issued by the Province and growing frustration in First Nation communities."

Okanagan Nation Alliance Chair Grand Chief Stewart Phillip added: "The Province has offered no process for negotiation of the unresolved land question outside of the fundamentally flawed Treaty process which, after 16 years and at a cost of over a billion dollars, has been a disaster. The Province simply has demonstrated no real commitment to achieving recognition and reconciliation with First Nations in B.C. Today's decision from the Supreme Court of Canada means that there will be no guidance in this case on Aboriginal title from the courts either. It is just completely unacceptable that the people of B.C., Aboriginal and non-Aboriginal, should have to continue to endure the growing economic uncertainty and the related debilitating economic consequences in Aboriginal communities, caused by the Province's denial of Aboriginal title - a denial which remains entrenched in policy and law.

For more information, please contact Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314

Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789

Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328

Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146

=============================== Background

Two Interior First Nations, the Okanagan and Secwepemc, represented by their Tribal Councils, issued permits to their member Bands - the Okanagan, Adams Lake, Neskonlith, and Splatsin Bands - to log in accordance with their laws within their traditional territories, to provide housing for their membership, and to challenge the Province's authority over their lands and forests. The logging which started these proceedings occurred in 1999, following the Supreme Court of Canada's decision in Delgamuukw where the Court resolved a thirty year legal battle and held that Aboriginal title had not been extinguished in B.C., and that it had a jurisdictional and economic component. When the Province refused to put that decision into effect, logging commenced with the Okanagan Indian Band logging in the Browns Creek area near the head of Okanagan Lake and the Secwepemc Bands logging in the Harper Lake area.

Shortly after the logging activities took place, the Ministry of Forests issued a stop work order, and then went to Court seeking a compliance order, and obtained an injunction preventing members of the Bands from doing any more logging. The Okanagan and Secwepemc Nations challenged the constitutionality of the provincial legislation, based on their Aboriginal title and rights. They also successfully challenged the Province, who started these proceedings, to assume the onus to first prove its claim of 100% ownership and jurisdiction over the land and timber in the Province - an assertion which the Province has enshrined in the forestry legislation.

In 2003, the Supreme Court of Canada, recognizing the public importance of the Aboriginal title issues engaged in these proceedings, ordered the Province to pay the Bands' legal costs. In an effort to avoid this order, the Province unsuccessfully brought a motion to discontinue. In 2005, the Province brought a second motion, also unsuccessfully, to remove the Aboriginal title issues from the litigation by severing and proceeding with the rights issues. The Court rejected this motion too, but stayed the Secwepemc case, allowing only the Okanagan case to go forward.

But, in, 2007, the Province tried again, and this time they were successful in severing the title issues out of the trial. Just prior to bringing the severance application, which is the subject of this leave application, the Supreme Court of Canada, in Gray and Sappier, found that the Mi'kmaq and Maliseet had established an Aboriginal right to harvest wood for shelter, transportation, tools and fuel. Following Gray and Sappier, the Province advised that it was making an admission that the Okanagan Indian Band has an Aboriginal right to harvest timber for domestic purposes, within the traditional territory of the OKIB, including on the cut block site where the logging took place in 1999. Based on the admission, and the impending close of the Tsilhqot'in trial, the Province brought a severance motion to sever the title issues and try the rights issues first.

The lower Court ruled that Aboriginal title issues should be severed from the Okanagan's case on the basis that it could be cheaper to the public purse to decide the case without addressing the Aboriginal title issues, and because the issues would be decided by the Court of Appeal in the Tsilhqot'in case - a second case which had achieved a costs order. This decision was upheld by the majority of the Court of Appeal. In a sharply worded dissent, Mr. Justice Donald pointed out that the Okanagan have been assigned a different cause by the Province:

Ordinarily, it is assumed that the parties to litigation will fight for their respective causes. But here, the appellants have been assigned a cause which does not satisfy their goal of establishing authority over the forest lands; and they have to lose the justification issue to move on to the title determination under the umbrella of the costs order.

The Okanagan have waited a long time for their day in Court, and now they must wait longer. /For further information: Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314; Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789; Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328; Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146/ IN: ECONOMY, FORESTRY, JUSTICE, POLITICS

For more information, please contact

Stewart Phillip, Grand Chief Primary Phone: 250-490-5314

Ontario runs from the law!! Caledonia, Brantford, Waterloo follow!!

Native dispute requires clarity

September 02, 2008

THE RECORD

Some Six Nations members near Brantford have demanded that property owners and governments submit development fees and applications to them. They claim jurisdiction over much of Waterloo Region, based on a 1784 land grant. They contend it's their right as a First Nation to regulate growth.

Their claim is unresolved. Until it's resolved, it's a bad idea to recognize a controversial aboriginal planning agency. Giving in to Six Nations demands at this point undermines Canadian law and property rights. This can't be allowed to happen.

The intentional ignorance of the news media is appalling. They encourage the governments to ignore the law and do the bidding of their political and corporate masters. The Government of Ontario issued approvals for development without fulfilling their legal obligations to "reasonably consult and adequately compensate" Six Nations Constitutional Aboriginal Rights. The media is encouraging the government and corporate lawbreakers.

Now, the director of a Six Nations planning agency is crying foul, saying the watershed agency is acting illegally by not seeking approval from her agency. Approval is not needed, and it's time to get on with these projects. Planners aren't doing their job if they allow good works to falter unnecessarily.

Still, the situation is unsettling. There's no clarity around what it means to consult with Six Nations. The Supreme Court of Canada has ruled that governments have a duty to consult with First Nations on activities affecting land claims. But the process has not been formalized, leaving it open to interpretation.

Interpret this: 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: NO ONE - not Brantford, not the private Corporations, not the GRCA, not Ontario, not Waterloo, not Caledonia, Haldimand ... NO ONE has consulted and accommodated Six Nations legal rights. Until the duty to consult is fully discharged, no building, no development is legal. All are open to legitimate protest and being shut down by Six Nations. No injunction to stop protests can be sought until a consultation agreement is in place. When the Brantford court finally hears the injunction sought by Brantford, Brantford and Ontario will be forced to consult with Six Nations, by Canadian law, Canadian courts. Ontario, Brantford, Waterloo, GRCA, Haldimand ... are all running from the law. All are fully aware that they are defying the law. The media are also aware of the law and are trying to manipulate the public into agreeing with lawbreaking. It seems the governments, media and corporate entities are quite willing to continue to break the law, so long as the puppet media are willing to do their bidding and mislead the public. Canada is a joke. Canada is all in favour of human rights ... in someone else's country. Canada's record for human rights in its own country is a tale of Canada's governments running from the laws of Canada, hiding the truth in propaganda and misinformation fed to the Canadian public. Canada's governments - federal, provincial, municipal - and the corporations for which they stand - are in violation of International and Canadian law, and they continue to violate the human rights of the Indigenous Peoples of Canada.

Duty to Consult: BC Logging All court rulings in Canada that relate to "duty to consult" with Aboriginal Peoples, like the one reported below, are equally relevant to mining and logging in the north, urban development in the south (e.g., Brantford, Caledonia, Deseronto), or any other new uses of traditional Indigenous land. http://www.theglobeandmail.com/servlet/story/RTGAM.20080828.wbctree28/BNStory/National/

Natives gain more influence over logging Province failed to adequately accommodate Gitanyow when issuing licences, court rules ROBERT MATAS From Thursday's Globe and Mail August 28, 2008 at 5:48 AM EDT VANCOUVER — Natives will have significantly more clout over forestry in British Columbia after a court ruling that found the provincial government renewed licences granting the right to log in public forests in northern B.C. without meaningful consultation or adequate accommodation of aboriginal interests. The B.C. Forestry Ministry failed to acknowledge the distinctive political features of the Gitanyow First Nation's aboriginal society when issuing the licences, Madam Justice Kathryn Neilson stated in one of her final rulings as a B.C. Supreme Court judge. (Judge Neilson was appointed to the B.C. Court of Appeal earlier this year.) The Forestry Ministry also failed to recognize the aboriginal right to expect the forest would not disappear while disputes over their claim to ownership of the land continue, Judge Nielson stated in a 43-page ruling distributed this week. Consultation did take place between the government and the native band, she stated. "The issue is whether that consultation process was reasonable and whether any resulting accommodation was adequate," Judge Neilson wrote. "The Crown's obligation to reasonably consult is not fulfilled simply by providing a process within which to exchange and discuss information." The ruling is the most recent in a series of court decisions over the past decade that require the federal and provincial governments to consult with natives and accommodate their interests. Vivian Thomas, a Forest Ministry spokeswoman, said yesterday the government was reviewing the implications of the court decision and could not make any further comments. Glen Williams of the Gitanyow First Nation was not available yesterday for comment. The judge has asked for further submissions before ruling on the consequences of her decision. Natives in B.C. have unresolved land claims to almost the entire province. The current court ruling dealt with six 15-year licences issued in February, 2007, that granted the right to log in the Kispiox and Nass regions of the northwestern part of the province in exchange for complying with government forest-management objectives and paying stumpage fees. Judge Neilson stated that issuing the licences was the first step in permitting the removal of a claimed resource in limited supply. The annual allowable cut in the area would be about one million cubic metres of timber, the equivalent of about one million telephone poles. The licences covered almost half of the 16,800 square kilometres of territory claimed by the Gitanyow as their traditional lands.The Gitanyow, with a population of about 700 people, have been in treaty negotiations since 1980, but the process stalled in 1996, Judge Neilson stated. "Nevertheless, there is no question that substantial logging and road building have occurred on those lands and that these activities have had a significant impact on the sustainability of timber resources and on other aspects of Gitanyow tradition and culture." Land was clear-cut and the mature old-growth forests were replanted. But the Gitanyow were denied for many decades the use of large areas of habitat required to support plants, birds, fish and animals that they traditionally had for sustenance and for cultural purposes, the court heard. Unable to draw on the resources to maintain their culture and traditional activities, the native band suffered financial hardship, pain and shame, the Gitanyow told the court. The Gitanyow is organized into eight matrilineal wilps (clans), each with their own territory. Each wilp has a hereditary chief who has authority over the group's land. Judge Neilson found that the government did not accommodate the concern that the wilp system be recognized in the licences. Logging timber in the traditional territory without reference to the wilp boundaries "could result in the effective destruction of individual wilps." Judge Neilson also said that each of the companies that held forestry licences in the area in the previous 15 years had financial difficulties leading to receivership or a government bailout. As a result, some of the companies exceeded logging allowances and failed to fulfill obligations to replant the forest, she said. She also said the government did not adequately address silviculture - issues regarding the maintenance of a healthy forest - adding that the government's position on silviculture liabilities amounted to no more than "trust us." "The honour of the Crown and the importance of the sustainability of the resource to Gitanyow clearly required more."

John Tory babbles again ... Tory has harsh words for aboriginal protesters

MATHEW McCARTHY, RECORD STAFF

July 25, 2008

Kevin Swayze RECORD STAFF

CAMBRIDGE

Stories of face-to-face confrontations, threats, and rumours of expanding First Nations land claims are spreading anxiety throughout the local construction industry.

"There's a sense of fear," said Martha George, president of the Grand Valley Construction Association.

"It's kind of a bit of hearsay. We're all getting worried that what's going to happen here is what's happened in Caledonia."

New native development fees, claimed for land along the length of the Grand River, add to the worries for construction companies, fearful projects will be stalled by protests if they don't abide by demands for First Nations' approval of projects.

Construction firms want the land claims issues settled by negotiation as soon as possible.

Construction firms need to get legal advice because it is apparent that they don't know the laws they operate under: First Nations approval IS REQUIRED. Developers MUST CONSULT. It isn't just about resolving 'land claims' (Aboriginal Title). It is about the 'Aboriginal Rights' that developers and governments must respect. And that includes their right to say "no" to development.

"We don't want to see anyone injured," George said. "We don't want another Ipperwash."

Provincial Conservative Leader John Tory, who met with the association's board, blamed the Liberal government for emboldening what he calls native law breakers.

"I think when you let the rule of law break down, lots of things happen," Tory said. Along with encouraging civil disobedience in native communities, Liberal inaction also opens the door for organized crime to move into lawless areas, Tory charged.

Blah, blah, blah! John Tory, see above. You don't have a friggen clue what the law is!

Premier Dalton McGuinty needs to take control, use the "prestige of his office" and show Ontario won't negotiate with bullies.

The premier should call native leaders into his office and tell them negotiations to solve land claims won't happen while people break the law by occupying land.

hahahahahahahahahahahaahaaaaahhhhahahahahaha.

That Tory is such a comedian, eh? Dalton has no moral authority to call them on the carpet! Dalton is the one BREAKING THE LAW!!!

He applauded Brantford for taking a tough stand against native occupations by getting court injunctions against protesters. What's needed is for the courts to strongly enforce existing laws against threats and violence, Tory says.

Negotiated settlements to native land claims need to be sorted out as quickly as possible but not when on one side are flagrantly breaking the law, Tory said.

Tory has no sympathy for aboriginal people who say they're following their laws. If they are counting on Canada's charter of rights to protect them, they must follow Canadian laws, too, he said. "If you've got a beef . . . you go to court."

Liberal inaction on the native issue is only going to worsen the downturn in the provincial economy, Tory said.

"Nobody is going to invest in a province where there's a complete breakdown in the rule of law."

It's true. Why would anybody want to do business in a province where the provincial and municipal governments break the law. They 'approve' development without proper agreements in place, and then leave the developers hanging out to dry when confrontations occur. Ontario is shooting itself in the foot.

There's 590 companies in the Grand Valley construction association, across central Ontario from Owen Sound through Kitchener and Cambridge to Brantford. The employ at least 20,000, George said.

Then the bosses better get consulting with Six Nations. Silly of them to just go ahead without proper legal agreements in place, risking all those people's livelihoods. After all, THE LAW IS THE LAW!

kswayze@therecord.com

Duty to Consult: Union of B.C. Indian Chiefs, Brantford, Ardoch Algonquins, New Brunswick

We/Canada brags about its bargain basement selloff of resources - Best in return on investment to the shareholder - but all Canadian land 'assets' are overvalued, because they are not acknowledged to be encumbered by Indigenous Peoples' rights and titles. We haven't paid our debts and obligations to Indigenous Peoples for the right to share the land we call Canada, our right to be here. That's why our governments are selling off resources so cheap and so fast these days: Trying to outrun justice. Because soon they will be stopped enough times by direct or court action that they will be forced to implement Constitutional law through legislation:

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.

A say in development and a share in revenues on traditional Indigenous land. And then the price of doing business in Canada goes up.

EXAMPLE: Union of BC Chiefs

Union of B.C. Indian Chiefs say Province wilfully mislead or withheld information about BCRail

Re: Proposed merger of BC Rail with CN Rail

http://bctrialofbasi-virk.blogspot.com/2008/07/blog-post.html

“Within the rail industry, CN has moved from worst to first. We're now the best railroad in North America. Best in service. Best in operating efficiency. Best in safety. Best in return on investment to the shareholder.” (E. Hunter Harrison, President and CEO) There has been no consultation with Indigenous Peoples. Instead, the province has acted in bad faith by keeping the details of this Agreement secret from Indigenous Peoples. ... The constitutional rights of Indigenous Peoples must be addressed. In the absence of evidence of consultation this transaction cannot be approved. There has been no consultation; Instead, the province of B.C. willfully mislead and lied to Indigenous Peoples about this transaction. The Competition Bureau must be mindful of existing constitutional rights and consider the privatization deal from the perspective of the impact that it will have on Aboriginal Title and Rights. Absent proof of government’s fulfillment of its legal obligations to Indigenous Peoples, this merger (transfer) cannot be approved. ... Failure to act in a timely and fair manner to resolve matters satisfactory to Indigenous Nations may attract less patient responses than protracted litigation, including direct action. ... Yours truly, Union of B.C. Indian Chiefs Chief Stewart Phillip President

EXAMPLE: Brantford

Brant Liberal MP Lloyd St. Amand should be taking his anger over development protests in Brantford to his provincial Liberal cousins at Queen's Park. While our federal government takes responsibility for helping settle land claims, the province is clearly responsible for both policing and development issues, which includes the issue of licensing permits. That is why Ontario is at the negotiation table, because the province knows they have an integral responsibility in helping settle these long-standing development issues between Six Nations and neighbouring municipalities. In just 2 1 /2 years, our Conservative government has tabled two significant offers to Six Nations leadership, who are currently reviewing our $26 million offer to settle the Welland Canal portion of their claim. Our federal negotiators have been working extremely hard to settle this claim and have attended more than 100 meetings. We remain committed to resolving these issues in a manner that is not only fair for Six Nations members but is also fair for the non- Aboriginal community as well. Chuck Strahl Minister of Indian Affairs Ottawa Show respect to Six Nations I agree with Tuesday's editorial, "Not a step forward," that "respect is a two-way street. But you proceed to say that it's only Six Nations who are being disrespectful. You suggest that we should sit back and allow development to proceed while things progress in the courts and at the interminable negotiating table. The assumption underlying your editorial is, of course, that any native claims to the properties in question were rightfully extinguished years ago and that the properties in question are rightfully deeded to you and yours. If you assumed that the natives might be right, that they have a legitimate claim to the lands, that the Haldimand Deed is the last clear title to the lands in question, then natives have every right to stop all development within their territory to allow you an opportunity to demonstrate your claims to the land -- claims which cannot be substantiated, as there has not been a legitimate surrender by the Six Nations. Your deeds and titles were issued under false pretenses. And therefore you should be required to demonstrate a legitimate claim. All development should stop immediately until your claims have been settled and Six Nations approves of the individual development projects. If you were as respectful as you suggest, perhaps you might consult with us and negotiate in good faith. Or insist that your representatives do so. Marilyn Maracle Ohsweken

EXAMPLE: Ardoch Algonquins

Reid has argued that the Government of Ontario had a duty to consult the Ardoch Algonquins before accepting the Frontenac Ventures mining claims under the Ontario Mining Act because the land in question is part of a land claim.

Later Justice MacPherson asked the question, “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.”

“ What Frontenac Ventures 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.”

___

Thus, the sentences of the lower court were overturned. The implication of this for Indigenous rights throughout Ontario, like Six Nations, is that 'contempt' of injunctions imposed by the low courts will not stand up through the scrutiny of the high courts, because the actions of Indigenous Peoples in reclaiming their land or in claiming Aboriginal rights on the land, are grounded in the Constitution and those rights must be respected. In the case of the developments in Brantford, Minister Chuck Strahl has finally stepped up and pointed the finger in the correct direction: the province is clearly responsible for ... development issues, which includes the issue of licensing permits. Ontario is responsible for consulting with Six Nations

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.

"Conduct" like ... issuing development permits for land in Brantford where Six Nations clearly hold Aboriginal rights. The Haldimand Proclamation is deemed valid, and thus any land in the Haldimand Tract is subject to the Crown's "Duty to Consult".

Ontario is responsible. And British Columbia is responsible. And New Brunswick is responsible. http://grannyrantson.blogspot.com/2008/07/rights-of-indigenous-peoples-crowns.html All of the provinces are responsible for their "conduct that might adversely affect" Aboriginal rights and titles.