| Dec 11, 2008

Editorial - Chief Davis Deal

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Editorial - December 11, 2008 Chief Davis' dealEditorial by Jeff Green

It was no surprise that the Ardoch Algonquin First Nation (AAFN) and Concerned Citizens and Mining Uranium (CCAMU) have rejected the “accommodation agreement” reached by the Shabot Obaadjiwan and the province of Ontario and Frontenac Ventures Corporation.

The three groups had joined together to keep Frontenac Ventures from drilling uranium test holes for four months, but only the Shabot negotiated the agreement. Chief Davis also brought Robert Potts, the Algonquin Land Claim chief negotiator and Randy Malcolm, chief of the Snimikobi First Nation, into the negotiations. Neither men ever joined the protest, nor expressed any opposition to drilling, but their signatures on the agreement signal further Aboriginal consent.

The agreement has been accompanied by a press release from the Ministry of Aboriginal Affairs, which claims that all the Aboriginal and environmental interests have now been “accommodated”. The press release says, “First Nations, industry and the Ontario government are working together to build stronger relationships in eastern Ontario”.

This effectively marginalizes both the Ardoch Algonquins and CCAMU.

The rift between the Shabot Obaadjiwan and Ardoch Algonquins did not start with this announcement, however.

The rift was exposed publicly last February, when Chief Davis and Earl Badour undertook to obey, and counsel their members to obey, a court order barring them from the Robertsville site. In contrast Ardoch Algonquin spokesperson Bob Lovelace was jailed for refusing to comply with that same order. (Lovelace’s jail term was cut short on appeal, and last week the Supreme Court announced it will not entertain a further appeal by Frontenac Ventures).

Shabot and Ardoch, and their lawyers, have not had any meaningful contact since then.

Although no one from CCAMU has gone to jail over defying Cunningham’s court order, some CCAMU associates (CCAMU is really a loose association of activists) have made a point of defying the court order over the past months by gathering at the gate of the Robertsville mine site.

Shabot Chief Doreen Davis says that she gave nothing away by signing the agreement because the battle over drilling had already been lost in court. She argues that if the Shabot Obaadjiwan had not pushed Ontario to consult this past summer, Frontenac Ventures would have fewer constraints on their activities than there are now with the agreement in place.

With the agreement, a portion of the lands to which Frontenac Ventures had obtained the mining rights will revert to the Crown, to be held until the Algonquin Land Claim is settled. As well, there will be a steering committee established to ensure “best practices” are used for the drill holes that are now permitted, a number that is something less that the 110 holes that were allowed under Judge Cunningham's original court order.

Putting aside the hard feelings all of this has caused, the agreement exemplifies the approach that Ontario has taken towards what the Supreme Court of Canada calls a “duty to consult” Aboriginal communities over mining activity on disputed lands.

In February of 2007, before the Robertsville dispute was even underway, the Ontario Ministry of Mines and Northern Development released a discussion paper called “Toward developing an Aboriginal consultation approach for mining sector activities”.

Among the 8 proposed principles for consultation is one that says, “Although Aboriginal communities have a right to be consulted in relation to Aboriginal or treaty rights that may have been adversely affected by a government action, they generally have no veto over the Crown's decisions.”

This principle posits that if there is veto power in any consultation process, it is the Crown that holds that power.

The AAFN has stated repeatedly that the “duty to consult” that the Supreme Court has ordered implies the possibility of Aboriginal perspectives and interests having the same weight as government interests, which is more than Ontario is prepared to accept.

Although the AAFN is not in a position to bring this question to the Supreme Court, because of the cost, the Ontario government could seek an opinion on their own.

If Ontario is confident that they have interpreted the Supreme Court ruling on “duty to consult” correctly, they should want the matter cleared up once and for all.

Until then, there will be be continual disputes between First Nations that are willing to negotiate under Ontario's terms and those that aren't, and the legitimacy of First Nations/government deals will remain in doubt.

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