First Nations have many problems with the government of Ontario

Published by MAC on 2012-02-20
Source: Toronto Star, Rabble, Al Jazeera

It simply doesn't respect their rights

Ontario First Nation wins injunction to stop gold drilling

By Tanya Talaga, Queen's Park Bureau

Toronto Star

10 February 2012

When members of Wahgoshig First Nation spotted a drilling crew on what they say is a sacred burial site, they demanded to know who the strangers were and what they were doing.

The Wahgoshig, whose Algonquin reserve of 19,239 acres is 113 km east of Timmins, running south from Lake Abitibi near the Quebec border, say they were met with silence.

But what was happening on the land was anything but silent, according to court records.

The prospecting work involves clearing 25 sq. metre pads, clearing forest, bulldozing access routes to the drilling sites and the transportation and storage of fuel and equipment.

The workers were with Solid Gold Resources Inc., a junior mining firm that has a 200-square-kilometre prospect at Lake Abitibi near the Porcupine Fault zone. The land they were on, says Wahgoshig band chief David Babin, is not part of the reserve itself but does include the traditional lands the Algonquins have lived on for thousands of years.

"Through history, Wahgoshig First Nation had developed homes around Lake Abitibi. When we died, we buried our people around the rivers and lakes - we didn't have cemeteries," Babin says.

Wahgoshig, a community of 250 people, protested to the Ontario government, which in turn told Solid Gold on Nov. 8, 2011, that before any more drilling occurs they must adequately consult with the band.

Solid Gold responded by bringing in a second drilling rig, court documents say.

Last month, Ontario Judge Carole Brown ordered Solid Gold to stop its activity on the site for 120 days. The injunction expires in May. Brown ordered Solid Gold and the government to use that time to properly consult and accommodate the concerns of Wahgoshig.

The ruling has implications for other resource projects on First Nations traditional land - including the $5.5 billion Northern Gateway Pipeline, a high-stakes bid to ship Alberta tar sands oil to China via a new pipeline across B.C. to the coast.

Many B.C. aboriginal groups are line up against that pipeline. Last Saturday, 600 people took to the streets in Prince Rupert to support Hartley Bay First Nation's opposition to oil tankers coming in to their coastal community near Kitimat, the proposed destination of the pipeline.

Judge Brown ruled she is mindful of Wahgoshig's position that refusing to enjoin Solid Gold from its drilling will "send a message that aboriginal and treaty rights, including the rights to consultation and accommodation, can be ignored by exploration companies, rendering the First Nations' constitutionally recognized rights meaningless."

"This would not be in the public interest. It is in the public interest to ensure the Constitution is honoured and respected," she wrote.

Solid Gold is seeking leave to appeal the decision. A hearing is scheduled for Feb. 29 at divisional court in Toronto.

Ontario's Angus Toulouse, regional chief of the Assembly of First Nations, argues that the Constitution's guarantee of aboriginal rights, and the United Nations Declaration on the Rights of Indigenous Peoples, require that aboriginal people have the right of free, prior and informed consent before any project that may affect their lands can proceed.

"It is appalling that some companies, with the full knowledge and approval of the provincial government, continue to behave in this disrespectful and unacceptable manner," Toulouse says.

"The fact of the matter is that First Nations know their rights and they are going to resist and they will not give up," says Toulouse.

Neither will Solid Gold, a company fighting for its financial livelihood.

Solid Gold is a publicly traded firm. According to court documents, the company's "Legacy Project" mining claim covers 103 unpatented mining claims covering approximately 21,790 hectares - all within what the Wahgoshig say is their traditional lands.

Company president Darryl Stretch says the courts made a "hasty judgment" of a complex issue and he fears his company's investment in the area will be completely lost.

"People think we are drilling on the burial site or the reserve and these things are just not true," Stretch says from Vancouver.

Chief Babin begs to differ. He says the prospectors are on sacred land. When told Stretch denies this, Babin retorts: "How does he know?"

Solid Gold told the court it has "no legal responsibility or duty to consult, and that if there is such a duty, it resides in the Crown."

Solid Gold also argued that Ontario's Mining Act establishes a "free entry" system whereby all Crown lands, including those subject to First Nations land claims, are open for prospecting and staking, without any consultation or permit required.

A lot of money, jobs and investment are at stake here, says Stretch.

"This is a high-grade gold deposit over mineable woods," says Stretch. "That spells a lot of money. That is what every mining company wants to get. Instead of one, we think there are two or three deposits we can see already."

Stretch doesn't blame his aboriginal opponents for the stalemate.

He says the Crown has not properly carried out its job managing consultation with the Wahgoshig band. Now his company has to figure out what that mean in just 120 days, Stretch argues.

Solid Gold plans to sue the Ontario government for $100 million. (The ministry of northern development and mines refused comment on the case.)

Developers are caught in the middle between the Crown and First Nations all over the country, says Stretch.

The duty to consult and accommodate, which is at the heart of the Solid Gold injunction, resides in the honour of the Crown, Judge Brown wrote.

"While the Crown may delegate operational aspects of the duty to third parties, such as Solid Gold, the Crown bears the ultimate legal responsibility to ensure the duty is fulfilled," she said.

Yet the Crown took no position on the injunction motion, notes Stretch.

"To bully a pitiful, weak, third-party start-up, throwing it and its investors under the bus for the entertainment of the court and First Nations, is not honourable. Apparently, the Crown and the court owe no honour to its corporations or to the public at large, only to First Nations."

Brown has ordered the parties to get together and consult properly - something that still hasn't happened, notes Babin and Wahgoshig's lawyer, Kate Kempton.

While the injunction itself doesn't delve into the national constitutional issues at play in such land conflicts, the effect of Brown's ruling is that the Wahgoshig's constitutional rights exist and must be safeguarded.

"This is a sacred land to them," she says. "I don't want to overreach here and say this is binding precedent. It is precedent but it depends on the fact situation.

"It is fair to say, when there is a contest between rights and interests, and a First Nation is one of the rights holders, the more cases that find in favour of the First Nation and that their rights do count and need to be upheld, the more impact it will have on mining and resources."

Anna Baggio, director of land conservation for the environmental group the Wildland's League, suggests Brown's injunction is such a milestone.

The judge is saying in order for the Constitution to be meaningful, the right to consultation can not be ignored, says Baggio.

"Brown has now made it a public interest that the companies and the provinces take this responsibility very seriously and when they don't they aren't acting in the public interest. This is fundamental to our society."

The Ontario dispute will be heard in B.C., where hearings continue on the Northern Gateway pipeline proposal, Baggio notes. The situation there is even more complicated, because few B.C. tribal groups have signed treaties establishing legal boundaries over their lands.

"In the path of the pipeline, no treaty was signed. This is un-ceded land. So basically you are talking about a true nation-to-nation discussion. They need to negotiate in good faith. Obviously the First Nations are very clear about this, that the discussion is not taking place.

"It is in the public interest that our Constitution is protected. Developers have to be very careful."

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Stop mining on KI lands: What part of 'NO' does Ontario not understand?

By Laura Lepper 

Rabble

7 February 2012

Without consent or consultation, God's Lake Resources, a junior gold exploration company, trespassed by exploring on Kitchenuhmaykoosib Inninuwug (KI) lands. God's Lake is now threatening to drill on sacred KI burial area. KI is saying NO to God's Lake Resources, just as the community opposed mining exploration by Platinex in 2008 and De Beers in 2010.

Not only is it repeatedly clear that the Canadian government excels at ignoring Indigenous communities' right to say NO, but it criminalizes them for their opposition to rights infringements.

Ontario continues to refute Native land rights in several ways. Like many other Indigenous communities exercising their sovereignty, the Kitchenuhmaykoosib Inninuwug -- a fly-in Oji-Cree community nearly 600 km north of Thunder Bay -- was told by Ontario courts in 2006 that they would be forced to negotiate with Platinex. The only allowed outcome of this "negotiation" was a Platinex drilling program, which the KI community knows would contaminate both their drinking water and one of their food staples: fishing.

The forced negotiation is in direct violation of treaty rights and with KI's inherent right to refuse extractive industries on their traditional lands, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples. Yet on March 17, 2008, Chief Donny Morris and five other community members were jailed for opposing mining development on their nation's territory.

The jailed KI leaders were released by an appeals court after concentrated grassroots support and a massive public outcry. The McGuinty government doled out $5 million to settle with Platinex, after which the province drafted the Far North Act, promising that no new mines would be drilled in the Far North without First Nations consent. Despite this, the Ontario Mining Act continues to enable mining companies like God's Lake Resources to stake claims without consent on First Nations lands. These latest broken promises are only among the more recent of countless holding up a colonial project.

This colonial project also involves criminalizing those who speak out against Canada's political and financial support for the destruction of the environment for corporate profit. In 2008, the same year as KI leaders were jailed, Ardoch Algonquin community leader Bob Lovelace was sent to prison when his community said NO to a uranium mine on their territory.

First, the government of Ontario creates a problem by wrongfully viewing the treaties as a land-surrender and imposing unjust and archaic mining acts on Indigenous lands, then the government of Canada criminalizes any First Nations who oppose the act or offer another view of the treaty relationship.

Apart from the occasions when Indigenous leaders are imprisoned, the Canadian government treats Indigenous communities as "terrorists." In early 2007, the government of Canada created a wide-ranging surveillance network to monitor 18 First Nations regions identified as "communities of concern," according to RCMP documents.

In addition to KI and Ardoch, the list includes other communities in Ontario such as Grassy Narrows, Six Nations and Tyendinaga. These communities boldly opposed mining, housing development, and logging on their territories through road and railway blockades, when the Ontario government would not listen any other way.

Surveillance of these First Nations communities was conducted by the Aboriginal Joint Intelligence Group (JIG), run by the RCMP's Criminal Intelligence branch as well as the RCMP's National Security Criminals Investigations, which operate nation-wide to deal with "threats to national security and criminal extremism and terrorism." While the Aboriginal JIG was dismantled in 2010, the RCMP cannot confirm that RCMP divisions are not currently performing its same activities under another name.

The 2009 annual Strategic Intelligence Report states: "Mining, oil-drilling, logging, garbage dumps, construction of dams, highways, and expanding the industries such as the oil sands can produce permanent impacts on the land, resources and people." The report itself indicates that the government is well aware that it is the environmental destruction resulting from their policies and actions that incites confrontations with Indigenous communities. These are the same communities that the government of Canada criminalizes and places under surveillance, rather than addressing the violations of Indigenous rights which sparked protest in the first place.

On July 5, 2011, the Kitchenuhmaykoosib Inninuwug voted overwhelmingly in favour of protecting their entire watershed from all industrial activity by approving the KI Watershed Declaration and the KI Consultation Protocol. The KI Watershed Declaration states: "We declare all waters that flow into and out of Big Trout Lake, and all lands whose waters flow into those lakes, rivers, and wetlands, to be completely protected through our continued care under KI's authority, laws and protocols... No industrial uses, or other uses which disrupt, poison, or otherwise harm our relationship to these lands and waters will be permitted."

The KI Consultation Protocol spells out clearly for government and industry the ways in which the KI nation will exercise their inherent Indigenous land rights. Activities affecting KI's lands and resources will only proceed with KI's prior and informed consent. Decisions will then occur only according to KI's laws and decision-making processes. This Protocol states how, when, and why KI will oppose activities on their land.

The KI Watershed Declaration includes a call to action for KI's supporters: "We call on our supporters to recognize and respect this declaration. We call on you to fulfill your duty as treaty people to take action, under our direction, to hold your governments accountable to respecting this declaration. Please stand with us as we assert and implement our Indigenous Laws and responsibilities. Together we can protect this sacred water for all people, all animals, all plants and all life."

The strength of KI resistance against Platinex in 2008 resulted in a community victory and the outpouring of support for exercising their sovereignty in saying no to Platinex. While Ontario and Canada try to say NO to Native land rights with broken promises, dead-end negotiations, and prison, we as treaty people must recognize and actively support the Indigenous peoples who have the legitimate grounds say NO in the first place. Support KI!

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Canada mining boom leaves natives in the cold

Indigenous community with "third world conditions" sits 90km from diamond mine, prompting fight for resource royalties.

By Chris Arsenault 

Al Jazeera

11 February 2012

Despite living just 90km from a massive diamond mine, Jackie Hookimaw Witt has watched poverty tear at the fabric of Attawapiskat, an indigenous community in northern Canada.

The northern Ontario community made international headlines recently, when the chief declared a state of emergency, as many houses lacked heating during frozen winters, and families were left sleeping in storage sheds, shacks or run-down trailers, often with no running water.

"Why are our people living in such extreme poverty when we are so close to this rich mine?" asked Witt, a mining critic born and raised in Attawapiskat. "There is something wrong with this."

As mining companies around the world reap profits from high commodity prices, people in Attawapiskat are demanding a bigger slice of the pie from the diamonds extracted from their traditional territory.

"Our native politicians are pushing for revenue sharing," where resource royalties from the Victor diamond mine would go directly to indigenous administrations, known as band councils, rather than straight to the provincial government, Witt told Al Jazeera.

Valuable resources

While high prices for precious metals and other commodities have profited mining corporations, they have led to desperate behaviour in communities around the globe, including an increase in copper wire thefts in some western cities and gold scavenging in Guatemalan garbage dumps.

"Great riches are being taken from our land for the benefit of a few, including the government of Canada and Ontario, who receive large royalty payments, while we receive so little," Teresa Spence, the chief of Attawapiskat, said in a speech on January 26.

About 1,800 people live in Attawapiskat, where unemployment hovers near 90 per cent. Temperatures drop to -40 Celsius in the winter and in one case, 90 residents have moved into two portable housing units used by construction workers, with only two washrooms.

The Red Cross has been assisting community members and appealing for donations, in scenes that reminded many Canadians of third world poverty, rather than of life in a wealthy democracy.

A spokesperson for De Beers, the international firm which owns the Victor mine, told Al Jazeera that Canada's government and indigenous groups need to work out some kind of revenue sharing agreement.

Presently, De Beers pays money to Attawapiskat via a trust fund the company has set up, although it says it is not mandated by law to do this.

"There are direct financial payments to the community on a regular basis," De Beers spokesman Tom Ormsby told Al Jazeera, although neither he nor representatives from Attawapiskat have disclosed the amount.

The company has spent about $325m on contracts with indigenous-run business for services such as catering and contracting, Ormsby said. "More than 100 community members work at the mine."

The mine extracts about 600,000 carats of diamonds per year. "In the short period of time we have been involved with the community, we have seen a lot of progress," said Ormsby, adding, "we don't want to dismiss the long term challenges the community has."

Despite global economic uncertainty, De Beers, the world's largest diamond company, saw operating profit rise by 64 per cent in 2011.

Royalty debates

Critics say the company profits at the expense of local communities and public revenue. "In 2010, the company reported that they didn't pay any taxes at either of their Canadian mines," said Ramsey Hart, an analyst with Mining Watch Canada, an environmental watchdog.

Diamond royalties are set at 12 per cent of profits, Hart said. "Despite taking millions of dollars worth of diamonds out of the ground, the company has tried to show that it isn't making any profit so it hasn't been paying taxes." His claims on royalties could not be independently verified.

Hart wants to see a new tax structure, where mining companies have to pay according to the value of what they take out of the ground.

"When prices [for commodities] are high, the tax rate should increase accordingly," he told Al Jazeera. Mandatory revenue sharing with indigenous communities should also be reflected in an updated tax structure, he said.

Other indigenous groups, including the James Bay Cree and Inuit of northern Quebec have secured access to royalties from massive hydro-electric projects on their traditional territories, after lengthy protests and court battles. These communities generally have better social development outcomes than places such as Attawapiskat which do not receive royalties from projects on their traditional land.

Who is to blame?

Conservatives tend to blame poverty in indigenous communities on bad governance, rather than royalty issues.

Canada's ruling Conservative Party says the federal government has spent $90m in Attawapiskat since it took office in 2006. The government put the band council's finances under third party management, saying their books had been mismanaged. The third party manager, a private sector consultant, is earning about $1,300 per day to manage the community's finances.

"I think being under third party management is probably the best decision at the moment," said Joseph Quesnel, an analyst with the Frontier Centre for Public Policy, a market orientated think-tank.

Under the Indian Act, legislation first passed in 1876, the federal government is responsible for providing services on native reserves, including Attawapiskat. "If those services are not being delivered it is like a breach of contract and it is taxpayer money," which is being provided to the local band council, he said.

"The whole idea of corruption is a wide issue" facing aboriginal communities he said, while not alleging any particular misdeeds in Attawapiskat.

He supports the idea of provincial governments hammering out a deal with aboriginal communities, or what are called First Nations in Canada, to share more resource royalties.

"First Nations have particular challenges in terms of the lands they are on. They often weren't the most productive or best lands," Quesnel, who has mixed native and non-native ancestry, told Al Jazeera. "They are often away from highways and markets, especially the more isolated ones. There is no easy solution."

The community can only be reached by frozen ice roads in the winter and by plane in the summer. The cost of building a house in Attawapiskat is about $250,000, with transporting materials eating up about half the cost - and government critics say not enough money or support is being provided.

"Everything where we live is very expensive," said Jackie Hookimaw Witt, the Attawapiskat resident. "To buy broccoli, when I want a nutritious meal, it will cost $8, one cantaloupe costs $14."

The town, originally founded in 1893 by Catholic missionaries who wanted to "civilise" the natives, only got some running water and sewage facilities in the 1990s.

Environmental concerns

Beyond royalties and questions over who should finance development and new homes in Attawapiskat, indigenous people worry that increased mineral extraction is ruining the local environment.

"When we have mining in the area, First Nations that have lived off the land won't be able to hunt, trap or fish anymore," said Stan Beardy, Grand Chief of Nishnawbe Aski Nation, who represents 49 communities - including Attawapiskat.

"I have major concerns about the local environment," he told Al Jazeera. "If standards are not high enough, it will destroy me and my people; we have nowhere else to go."

Ormsby, from the mining company, said that diamond extraction does not hurt local ecosystems. They just dig and then "wash and crush" the stones, he said.

But others are not so sure.

"At the beginning [during the mine's construction] I had a brother who worked there," Witt said. "He was digging with big machinery. He was shocked to see how they were using explosives for open pit mining. It hurt him when he saw the land desecrated, it haunted him."

With natural resource extraction driving Canada's economy, the federal government is keen to have more big projects such as the De Beers Victor mine.

But some native leaders have warned of increased strife between corporations and indigenous people if a broader agreement on resource royalties is not reached, as frustration boils over, with wealth and poverty sitting side-by-side.

"The settlers have not fulfilled their obligations [signed under treaties with natives]," Chief Beardy said. "They are taking all the benefits derived from the land. As a result, we are extremely poor."