Cecilia Begg, one of six natives from the Kitchenuhmaykoosib Inninugug First Nation ordered jailed for six months, is led  from the Thunder Bay court house on March 17. The natives were convicted of contempt of court for continuing to protest plans by Platinex Inc. to conduct exploratory drilling in their territory about 600 kilometres north of Thunder Bay. Photo by Anna Baggio, CPAWS Wildlands League

by Cameron Smith

The McGuinty Government in Ontario has repeatedly slammed the door on first nations 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 at Sharbot Lake 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 under way against the jailing of Robert Lovelace, a Queen’s University lecturer and a member of the Ardoch First Nation, who was sentenced to six months in jail and a fine of $25,000 for refusing to halt attempts to block drilling for uranium on lands claimed by the two Indian nations.

In the appeal, an intervention is being made by a number of other Algonquin first nations in the Ottawa Valley. Their lawyer, Michael Swinwood, says he will argue that the Ontario Appeal Court should follow a British Columbia 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, would turn the whole process of dealing with Indian land claims upside down. It says that no longer is it necessary for first Nations to prove title to land in order get control of their territories. When the constitution was patriated in 1982, it declared that all 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, the decision says, provincial legislation goes out the window anywhere there is a land claim.

Swinwood says he will be arguing 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. All seven jailed natives are being referred to as the AKI Seven.

All the jailings follow on obligations and commitments that Queen’s Park failed to honour. During the 2003 election, Premier Dalton McGuinty promised that there would be no industrial development in the northern boreal until there was a comprehensive land use plan in place.

He has broken his promise. There still is no such plan in place, and the province is allowing development to push into the the northern boreal without requiring that Indians have full rights to negotiate how development occurs within their territories. Meanwhile, it is turning a determined 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 Queen’s Park to negotiate with First Nations before exploration proceeded on their territories. Again, the province is turning a blind eye to the jailing of Robert Lovelace, who blocked attempts by Frontenac Ventures Corp. to proceed with drilling in the absence of such negotiations.

The B.C. case, covering 485 pages, can be found on the web site of the British Columbia Supreme Court under the name Tsilhqot’in Nation v. British Columbia.

It’s a remarkable judgement, because of the determination by the trial judge to deal with the cultural clash between natives and the provincial government

Justice D. H. Vickers spoke repeatedly throughout the judgement about the need for reconciliation and decolonization.

Allowing logging would be an expropriation of Tsilhqot’in rights, he said, 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.

The First Nation territory is west of Williams Lake, and covers 1,418 square kilometres in the southern part of the Chilcotin Plateau which stretches southward into the Chilcotin and Pacific Mountain Ranges.

Justice Vickers noted that his decision could have serious implications for the forestry industry in British Columbia, 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.”

The trial lasted four and a half years, and the court was in session for a total of 339 days.

At one point, the province argued that there had been many attempts to negotiate with the Tsilhqot’in, all of which failed to reach an agreement. It accused the natives of not responding in good faith. Justice Vickers rejected the accusation, saying: “This consultation did not acknowledge Tsilhqot’in Aboriginal rights. Therefore, it could not and did not justify the infringement of those rights.”

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