May 28, 2008

An Eagle Feather for Linda Keen?

The question of jurisdiction (Part III in a series)

by Paula Lapierre

The Dominion - http://www.dominionpaper.ca

[Continued from Part II]

When it comes to how to deal with polluting nuclear power plants and other matters, jurisdiction becomes very important, especially with regard to unceded Aboriginal territory.

Although the Atomic Energy of Canada Ltd. (AECL) installation at Chalk River is located along the shores of the Ottawa river in Ontario, it is situated within unceded Algonquin territory. Traditional Algonquin territory straddles both sides of the Ottawa river, with most Algonquins residing on the Quebec side.

In 1992 the federal and Ontario governments entered into land claim negotiations under the Comprehensive Land Claim process with the Indian Act band of Pikwakanagan and several other contemporary Algonquin communities. Recent Supreme Court of Canada and international case law has affirmed that the title and associated jurisdiction of Aboriginal polities in place prior to sovereignty assertions of the Crown have legal recognition and constitutional protection.

Currently, the Kichesipirini Algonquins are the only Algonquins meeting these legal requirements, yet they are consistently denied recognition within any consultation or negotiation processes. To enter into negotiations, they are told they are required to first abrogate their basic rights.

While the Canadian Nuclear Safety Commission (CNSC) has attempted to ensure that at least a semblance of public participation and consultation had taken place, even it has wondered if Aboriginal groups have been adequately consulted.

As the following exchange shows, the CNSC had not been informed on the question of Aboriginal jurisdiction, nor had it conducted research into the matter.

During the Environmental Assessment Screening Hearing Report of March 30, 2006, CNSC member James Dosman questioned Claude David, Environmental Assessment Specialist for the CSNC, about which First Nations had been consulted.

"We regularly send correspondence to the Algonquins of Pikwakangan which is, I believe, the Golden Lake Reserve in the area," David responded.

Dosman then asked: "May I ask, have you received any reply?" David`s response: "We never received any reply, response from these groups."

"And has anyone discussed this matter with them?" asked Dosman.

"Staff have never gone out to meet with the chief or the tribal council to explain the reasoning for our requests for their participation in the environmental assessment process," David responded.

Dosman then directed questions to Bill Coopershmidt of AECL, asking: "And may we have any comment from AECL on this matter of consultation with First Nations; which groups and what the efforts were that were made?"

Coopershmidt responded: "We have had on a number of occasions representatives from the Algonquins of Pikwakangan on site and as part of that we have briefed this group of individuals on a number of our activities including this particular project. So we certainly have made the nature of this project fully aware to this particular interested party."

"And were any concerns expressed by the Algonquin First Nations following what I take was a presentation to them?" Dosman asked.

"There were no concerns expressed," said Coopershmidt.

Mainstream Canadian society has come to expect the romanticised attempts of Aboriginal Canadians to act as heroic environmental watchdogs. So why no bark out of the Algonquins of Pikwakanagan, a federally funded Indian Act Band?

And why were the Algonquins of Pikwakanagan, a federally funded Indian Act Band located in Ontario the only Aboriginal group "consulted"?

The Algonquins of Pikwakanagan have no legal jurisdiction beyond their reserve at Golden Lake, a 76 kilometre drive from the Chalk River reactor, completely removed from the Otawa river. There were no concerns expressed because the matter had never even been taken to that community for proper consultation.

There were no concerns expressed because the vast majority of federally-recognized Algonquins, intimately attached to the Ottawa River, reside in Quebec, on the other side the river, and were never informed or consulted. The issues were not even advertised beyond the AECL website.

The actual Aboriginal community most associated with the Ottawa River is Kichesipirini. Kichesipirini, however, is not federally recognized and is continually persecuted because of their adamant stance regarding protection of the environment and their refusal to abrogate or derogate their constitutionally and internationally protected rights and responsibilities.

This partially explains why the Kichesipirini Algonquin First Nation, despite meeting the legal requirements to enter into negotiations, despite having submitted a claim without reliance on any government funding or assistance, and despite demanding third party expertise and international standards of good governance be applied to the process, has been consistently rejected from land claim or treaty consultation and negotiations.

Corporate Canada, parading as political representatives, are experts at circumventing legitimacy. They wiggled out of their actual obligations to the actual Aboriginal peoples of Canada by creating facsimile Aboriginal communities, under domestic policy, that are not party to the original legal international contracts.

As part of the same masquerade, they are attempting to circumvent a commitment to safety and environmental stewardship by implementing the Cabinet Directive on Streamlining Regulation (CDSR). It sounds impressive, but the CDSR, put into effect by the Canadian Government on April 1, 2007, "introduces several key 'improvements' to regulation in Canada," which actually shifts the onus away from uncompromised safety and environmental protection and marries these concerns to "a number of performance management requirements," most notably to "promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation." Rather than solely adhering to the scrutiny of independent expert watchdog organizations, new Canadian policy will "require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments in Canada and abroad, and with businesses and Canadians."

Just as the Indian Act, cloaked in a language of righteousness and protection, completely eroded the legal obligations and responsibilities of the Canadian government to the original stewards of the land, the application of the CDSR will erode the authority of the Canadian Nuclear Safety Commission.

A report presented to the CNSC entitled "Regulatory Independence: Law, Practice and Perception," explains that "The notion of the 'independence' of a regulatory body such as the Canadian Nuclear Safety Commission (CNSC) relates, from a legal perspective, to two broad ideas: institutional independence and adjudicative independence.

"Both aspects of independence relate to the ultimate goal of independence, which is decision-making that is unbiased and impartial."

Unfortunately for the CNSC and Linda Keen, the former CNSC president, "the Supreme Court of Canada has indicated that the institutional independence required of the judiciary in Canada for constitutional law reasons is not the same as what the law requires of an administrative tribunal."

Instead, the Supreme Court has determined that "it is for Parliament or the legislature to determine what functions" an administrative tribunal should serve.

Regarding issues of adjudicative independence, the "CNSC's processes reflect efforts to ensure that individual members may successfully avoid concerns of undue influence." The process "ensures that all information on which the CNSC may base its decisions is made available to the affected parties, so that they can know the case to meet and have the opportunity to make representations with respect to the information."

Another CNSC report tells us: "Aboriginal groups bring to the CNSC a unique relationship and history with the federal government, and different cultural, environmental, economic and social perspectives on nuclear issues. Working with Aboriginal communities and/or their political representatives requires a solid understanding and respect of the history and cultures of the affected communities, and their past and current relationship to the federal government."

Reliance on only those Aboriginal groups defined as Indian, Metis or Inuit by the federal government limits the consultation to only those Aboriginals represented through domestic policy and fails to recognize those Aboriginal polities, like the Kichesipirini, who have not yet acquiesced any of their inherent traditional rights. Such affected parties have not been given the opportunity, nor granted access to fair or uninfluenced processes, that would allow them participation or consultation as stakeholders.

Welcome, CNSC and Linda Keen to the protracted wrestling match well known to the Kichesipirini between the long arms of the law and the short arms of the Canadian state.

According to the laws of natural justice, common law, civil law, constitutional law and international law, the traditional rights and jurisdiction of the Aboriginal nations in existence prior to sovereignty assertion by the Crown supercede domestic policy... until ceded through military defeat, land claims or treaty negotiations. Kichesipirini title and jurisdiction supercedes the CNSC, the provinces, and the exclusive authority of the existing Parliament of Canada.

An eagle feather for Linda Keen in appreciation for her attempts at protecting our communities and our river? Perhaps. Keen has strongly recommended that her performance as president of the CNSC be referred to a public inquiry, parliamentary committee or independent international review. From our perspective of centuries of persecution and discrimination only an independent international review will suffice.

If Linda Keen is successful in having the issues referred for such examination, and as part of that examination the important issue of Kichesipirini jurisdiction and the rights of the traditional Algonquin Nation are also addressed, then it will be job well done. Until then it is still sword-rattling and ass-covering by the colonizers on unceded Algonquin territory.

Paula LaPierre
Principal Sachem
Kichesipirini Algonquin First Nation

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