Jeff Green | Jul 10, 2008
Feature Article - July 10, 2008
Back toHomeFeature Article - July 10, 2008 Why Appeals Court Supports Ardoch AlgonquinsBy Jeff GreenArdoch Algonquin First Nations’ lawyer Chris Reid may well have felt his legal arguments fell on deaf ears on February 18 in Kingston Superior Court when Justice Cunningham sentenced his clients Bob Lovelace and Paula Sherman to six months jail time and levied a total of $50,000 in fines as well.
Reid was also denied access to Cunningham’s court as long as Sherman and Lovelace refused to enter into undertakings not to impede Frontenac Ventures Corporation as they carry out uranium exploration in North Frontenac.
On May 28 the court of appeal in Toronto released Lovelace on time served, and this week their reasons were made public. The arguments that Chris Reid has been making unsucessfuly for the past year to Justices Cunninghan and Thomson seem to have swayed the judges in Toronto.
Reid has argued that the Government of Ontario had a duty to consult the Ardoch Algonquins before accepting the Frontenac Ventures mining claims under the Ontario Mining Act because the land in question is part of a land claim.
“In my view, and with great respect to a judge trying conscientiously to resolve a difficult, bordering on intractable problem, the sentences he imposed are too harsh,” wrote Justice JC MacPherson on behalf of the three appeal court justices in overturning Cunningham's sentencing decision. “I say this for several reasons.”
Among those reasons were the fact this was a first offence by two “well respected individuals who had led lives characterized by leadership in their community, including leadership in demonstrating respect for Canadian law.”
Later Justice MacPherson asked the question, “What then are the unique systemic or background factors that played a part in bringing the AAFN and two of its leaders before the courts to be sentenced for contempt? The first background factor is that there is an existing land claim negotiation between the Algonquin Nation and Ontario.”
Then MacPherson addressed the Mining Act and its relationship to aboriginal rights.
“The second background factor that played a part in bringing the appellants before the courts is the nature and content of Ontario's Mining Act.It is a remarkably sweeping law.It establishes a ‘free entry’ system whereby all Crown lands, including those subject to aboriginal land claims, are open for prospecting and staking, without any consultation or permitting required.
“Anyone with a prospector's licence may stake claims and prospect for minerals on any Crown land. Once a claim has been staked, in accordance with the Act, the Mining Recorder must record the claim.There is nothing in the Mining Act about considering aboriginal land claims or interests. The intersection of these two background circumstances creates an obvious problem, indeed the problem that lies at the heart of this case.
“ What Frontenac Ventures wants to do on Crown land - staking and exploration - is legal under the Mining Act. However, the appellants' response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of s. 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada.”
In the end Justice MacPherson said a fine of $1,000 would have been the appropriate sentence. “However, having regard to the time he has spent in custody, I refrain from imposing any penalty on him [Lovelace].I would not fine Chief Sherman or the community who have no ability to pay the fines.”
In a press release Bob Lovelace, who is just now returning home after a sojourn in Wyoming with his family, said, "We feel fully vindicated in the position we have taken and remain committed to our position that there will be no mineral exploration within the territories of Ardoch without our consent.Our laws, which require respect for the land, are entitled to at least as much respect as Ontario's Mining Act.We remain open to dialogue, but Ontario has never responded to our proposals for negotiations.We want negotiations, not conflict, but we will enforce our laws and protect our land."
The statement by the appeal court was released a few days after it was announced that the Shabot Obadjiwaan First Nation, Frontenac Ventures Corporation, and the Government of Ontario “have developed a consultation plan to address mining exploration activities in northern Frontenac County.”
The announcement did not make reference to any time frame for the commencement of a test drilling program by Frontenac Ventures Corporation, a matter that has been central to a dispute that is now entering its second year.
It does, however, quote Shabot Obadjiwaan Chief Doreen Davis as saying, “We appreciate the good will gesture of Frontenac Ventures to suspend drilling for a period of time while consultations are underway”.
A first consultation meeting took place on July 4. Members of the Shabot Obadjiwaan as well as two non-aboriginal “settlers” were invited to attend as observers.
One of them, Helen Forsey of Ompah, later wrote that ministry staff began by explaining that the current consultation process is geared towards developing a “mitigation and accomodation” plan that would take into account “Algonquin values and interests”. In response to this, she said, “the audience maintained a healthy skepticism about what was being presented.”
The consultation plan does not make reference to the Ardoch Algonquin First Nation, although according to Ardoch lawyer Chris Reid an invitation to join the process was sent to Ardoch Honourary Chief Harold Perry about two weeks ago.
“Ardoch is not interested in joining a process where the agenda is decided in advance. They have no interest in a sham process,” he said. “It was also clear last year that the territory where Frontenac Ventures is active is traditional Ardoch territory and the Shabot Obadjiwaan were initially involved in support of Ardoch, their neighbouring community. This is what the early court documents say.”
The leadership of the Ardoch Algonquins have said they will release an official response to the consultation process that has begun and will be outlining their future political plans in the coming days and weeks.