October 23, 2008

Canada's Newest Political Prisoners

Indigenous leaders jailed for protesting mining exploration on their lands

by Justin Podur

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

TORONTO, ONTARIO–On March 18, 2008, Ontario Superior Court Judge Patrick Smith sentenced Chief Donny Morris and six other council members from the Kitchenuhmaykoosib Inninuwug (KI) First Nation, a community of about 1,200 people in northern Ontario, to six months in jail for "contempt of court."

The group had defied a court order to stay away from a part of their land slated for mining by the Platinex Corporation. The judge applied the jail term rather than the fine as he knew the First Nation had gone bankrupt: the community had been fighting Platinex in court for several years after the company sued for $10 billion (later reduced to $10 million) for opposing drilling on KI territory.

Those charged served over two months in prison, eventually having their sentences reduced to time served. By the time they were released, they had exposed Ontario's Mining Act and the displacement of Indigenous Peoples for profit as a simmering issue throughout the country, awaiting its next crisis.

Legal trickery

Ontario's Mining Act is 135 years old and based on a "wild-west" model. It allows anyone to stake a claim anywhere on Crown land. This means that private companies can exploit public land for profit.

The legal question is whether the Mining Act supersedes all other laws and agreements.

In 2005 and 2006 Platinex attempted to explore and exploit land that, according to "Treaty 9," signed in 1929, belongs to KI First Nation. KI says the Mining Act is unconstitutional, bypassing the 'duty to consult,' and that mining on their land would threaten the First Nation's survival by destroying hunting and fishing habitats.

An attempt by Platinex to enter KI territory for drilling was denied by leaders in the community. The court claimed that if these leaders were not jailed, there would be a loss of respect for the law; the creation of two regimes of justice.

The KI have argued there are already two regimes of justice. "The government accuses First Nations of breaking Canadian laws when they defend their lands, but Canada itself is selective about which of its own laws it will abide by," said the Shabot Obaajiwan's spokesperson Earl Badour in a press release on March 18, 2008. "If the law doesn't serve their purposes, they conveniently ignore it."

In his sentencing of KI First Nation leaders, Judge Smith cited as precedent the jailing of Ardoch Algonquin Nation leader Bob Lovelace, who was sentenced on February 15 to six months in jail for trying to stop Frontenac Ventures from mining uranium on Ardoch Algonquin land, about 60km north of Kingston, Ontario.

Frontenac obtained a court order and an injunction rather than filing trespassing charges against Lovelace and other Indigenous protesters. Trespassing charges would have brought into question whose land was being trespassed upon: a can of worms the mining company wanted to avoid.

The Ardoch Algonquin First Nation and neighbouring Shabot Obaadjiwan First Nation are also pointing to the disregard of the 'duty to consult' - something the Ontario government is legally bound to do, according to previous Supreme Court rulings and the Canadian constitution. The duty to consult means that Indigenous communities must be meaningfully consulted on resource exploration on their lands, a requirement that clashes with Ontario's Mining Act.

Mining Politics

The mining company Frontenac Ventures is shrouded in mystery. Mining researcher Jamie Kneen told IPS's Chris Arsenault, "Aside from the President and their lawyer, no one knows who they are or where they get their money." Frontenac's President, George White, refused to answer media calls.

The lawyer for Frontenac, Neil Smitheman, is also representing Platinex. The two companies have a lot of the same concerns. Indeed, when the provincial court ruled in 2006 that Platinex was to cease operations while consultations were held with KI, Smitheman said: "There are numerous mining companies and exploration companies that could be in a similar situation if there's a failure to have proper consultation on lands that could be subject to a claim by First Nations people." Apparently the court came to the same conclusion, deciding in 2007 that Platinex could in fact drill on KI's territories – that the Ontario Mining Act overruled the constitutional duty to consult.

For a sense of what KI territory might face if uranium mining does take place, there is precedent. The Elliot Lake uranium mine, also in northern Ontario, left 130 million tons of toxic tailings and destroyed the Serpent Lake ecosystem.

"Uranium mining has no record other than environmental destruction and negative health issues," says Doreen Davis, another Algonquin leader who was also sentenced to jail time.

While the environmental and social costs of mining uranium in Canada's north may be huge, the effect, even if the mine does not go through, is chilling.

"As even the mine promoter's lawyer has admitted in court hearings, there is a vanishingly small chance a uranium mine will ever get built at the headwaters of the Mississippi River northwest of Sharbot Lake," notes
Paul McKay, a friend and neighbour of Lovelace's, in an op-ed in the Kingston Whig-Standard. "Compared to other deposits in Saskatchewan, Australia, South Africa and Asia, the ore is laughably low-grade, and the cost to mine fatally high."

So why is the Ontario government allowing Platinex to push ahead, and jailing those who oppose the mine?

The point of these jailings, McKay argues, is a two-fold political message. One, to the mining companies: the mineral wealth of the north is open to access and the government will clear any Indigenous resistance out of the way. Two, to the Indigenous: any resistance against the latest bonanza of extraction and destruction will be met with criminalization and jail time.

Government games and the Indigenous response

A March 20 press release from First Nations of Sachigo Lake, Bearskin Lake, Muskrat Dam, Kasabonika, Wunnimun, Wapekeka, Kingfisher and Wawakapewin called for sustained opposition to the court's decision to jail KI protesters, and the mining companies' stance.

The Union of B.C. Indian Chiefs suggested the Assembly of First Nations (AFN) tear up its Memorandum of Understanding with the Prospectors and Developers Association of Canada, signed on March 4, 2008.

From their press release of March 18, 2008: "The community members have been jailed for protecting their title and rights to their territories and any continued relationship with the mining industry will be indelibly stained by these shocking events...Given the ugly, thuggish approach demonstrated thus far by the courts and by the mining industry, it is of the utmost importance to show our support of the Kitchenuhmaykoosib Inninuwug First Nation and refuse to have any relationship with the mining industry."

The Nishnawbe Aski Nation (NAN) suspended mining-related negotiations with the Ontario government the day after the KI leaders were sentenced. "It was a real insult to all First Nations," Alvin Fiddler, Deputy Grand Chief of NAN, told reporters on March 19.

AFN National Chief Phil Fontaine visited some of the jailed leaders in Thunder Bay on March 22 and called the jailing an obstacle to peace. Canada's Anglican Primate, Archbishop Fred Hiltz, wrote a letter on March 25 to Ontario's Premier, saying the jailing arises "out of the continual imposition of the power and values of colonizers."

The Grand Chief of NAN, Stan Beardy, was quoted in the Kingston Whig-Standard, arguing that other political considerations were at work. "The McGuinty government got labelled weak in dealing with Caledonia [Six Nations blockade in Ontario] and now they say, 'We're not weak and we'll show you by throwing these Indians in jail...'"

The federal government has been silent on the issue, sending a message that Indigenous issues are not national issues, but for provincial governments to deal with. The Ontario government is using familiar tactics.

While the Superior Court imposes jail sentences, the provincial government's Aboriginal Affairs Minister, Michael Bryant, offers a ‘compromise': the leaders don't go to jail, pay only some of the fines, and allow the mining to continue. In other words, surrender the land.

"What is happening here is we've been criminalized for practising our way of living," says Beardy. "The government wants to make an example of us. What's being done is, once more, we're being moved out of the way, our valuable resources are being exploited and everybody is benefiting except us."

A version of this article previously appeared in Znet.

Justin Podur is a Toronto-based writer and activist, who blogs at killingtrain.

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