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MARCH 22nd, 2008 |
IN THIS ISSUE: |
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1)
PRESS RELEASE: SHABOT OBAADJIWAN TO SUE FEDERAL & PROVINCIAL GOVERNMENT
March 19, 2008 Canada named
in uranium lawsuit First Nation claims federal government ignored Constitution The Shabot Obaajiwan have been protesting the uranium development since June 2007. Their peaceful protest has led to contempt of court charges and the threat of severe penalties, with more trials pending. "We never wanted to pursue this in the Courts, we have always asked for consultation and negotiation. But neither Ontario nor the Federal Government has met their legal obligation to protect our Constitutional rights. They pretend that this is a dispute between First Nations and industry, when really it is the government that is at fault. We have tried to raise awareness through political action, but that only got us threatened with jail and heavy fines. We are left with no other choice but to pursue this politically with government leaders and through the Courts", said Chief Doreen Davis in announcing the news. The Shabot Obaajiwan's lawsuit comes in the wake of other important legal rulings for First Nations across Canada. The Ka'agee Tu First Nation of the North West Territories recently had their right to consultation and accommodation acknowledged in regard to the drilling of oil wells on their traditional hunting grounds by Paramount Resources. The Manitoba government suspended a drilling permit for Victory Nickel Inc. after admitting it had failed to notify or consult with the Norway House Cree Nation about the drilling permit. In November 2007, the Tsilhqot'in First Nation won recognition from the B.C. Court that until a treaty is concluded between them and government, resource extraction on their lands without their consent is illegal. "Our
legal position is based on Section 35 of the Canadian constitution and
Supreme Court of Canada rulings. Those rulings impose the 'duty to consult'
on governments before they authorize actions that might infringe on Aboriginal
constitutional rights," said Steve Reynolds, legal counsel for the
Shabot Obaadjiwan. For more information contact: Shabot Obaadjiwan
First Nation 2) LETTER FROM CHIEF DAVIS TO MINISTER OF ABORIGINAL AFFAIRS The Honourable
Michael Bryant March 19, 2008 Dear Minister Bryant, I am writing to thank you for your phone call on Monday March 17, 2007 regarding the proposed uranium exploration on Algonquin lands. Your personal attention to this matter is appreciated. We have always stated our preference for dialogue and negotiation over litigation. However, thus far we are discouraged by the actions of Ontario, as the province appears to prefer we fight this in the Courts. We are not prepared to allow Ontario to disrespect our rights and interests. Unfortunately, Ontario's intransigence regarding this matter has forced us, against our will, to launch legal proceedings against Ontario, Canada, the Minister of Northern Development and Mines and yourself, Minister of Aboriginal Affairs. We are forced to do this in order to protect those rights and compel you to uphold your duty to consult with us and accommodate our interests. We are prepared to reconsider this action, however, if through consultation and accommodation we can reach a just resolution. You will find us willing to participate in respectful and honourable dialogue with open minds and a commitment to peace. We ask for the same from Ontario. Your commitment to visit our community to discuss this matter further is welcome. I will be contacting your office the week of March 24 to discuss dates and agenda. It is my hope that we can announce a date for your visit soon. We further hope that your visit will be the beginning of a renewed relationship based on sharing, mutual respect, recognition, and responsibility. Yours truly, Doreen Davis 3) AMENDED STATEMENT OF DEFENCE, COUNTERCLAIM AND CROSS CLAIM-SHABOT 03/18/08 An amended statement of defence, counterclaim and cross claim was filed with Court in Kingston on Tuesday, March 18, 2008 by the Shabot Obaadjiwan First Nation. As it has now been filed and we have been given permission to post it on our website. This document can be seen under the FIRST NATIONS tab then the AMENDED STATEMENT OF DEFENCE-SHABOT 03/18/08 subtab on our website. Click on the 24 page PDF to read the full document. It may take a day or so for this document to appear on our website. In the mean time, I can email you a copy by request, greenlynndaniluk@yahoo.ca 4) THE POST CARD PROJECT: CREATION INSTEAD OF CONTAMINATION Hello Everyone, I'm initiating a post-card writing campaign in support of a moratorium on uranium mining in Ontario. My hope is that this initiative will help to raise awareness about the many issues connected to uranium mining such as Aboriginal land rights, human rights violations, environmental contamination and Canada's need to reform its Mining Act. The creative part of the process is music making in response to the post-cards you choose to send - music that will be shared at the Citizens Inquiry into Uranium Mining in Kingston, ON on April 8th, and beyond... If you'd
like to learn more about the project please go to Thanks very much for taking a look - and passing this or posting it wherever it might be useful! Michelle
Girouard 5) POETRY BY ANOTHER POLICITICAL PRISONER NAMED LOVELACE This letter came from a Bob Lovelace supporter. "Here's a stanza from a poem by Richard Lovelace, who was tossed into prison for political reasons 350 years ago. The coincidence of names I find striking:" Stone walls
do not a prison make, 6) L'ENQUÊTE DES CITOYENS SUR L'IMPACTE DU CYCLE DE L'URANIUM APPROCHE L'Enquête des Citoyens sur l'impacte du cycle de l'uranium approche. La première enquête est prévu pour le 1e avril à Sharbot Lake et continuera autour de l'est de l'Ontario durant le mois pour voir la dernière enquête sur 'Earth Day' à Ottawa. L'organisation commanditaire, The Citizens Coalition Against Mining Uranium, (CCAMU) invite toutes personnes intéressés à s'enregistrer pour avoir leur dire sur n'importe quel aspect de la question uranium/nucléaire et/ou d'envoyer leurs soumissions écrites ou électroniques à: http//:www.uraniumcitizensinquiry.com "Nous
avons demandé au gouvernement d'avoir une enquête sur A dit Wolfe Erlichman du CCAMU. "Treize
conseils de Kingston à Ottawa ont passé des résolutions L'Enquête est en réaction à Donna Dillman, la grand-mère de 53 ans de Lanark, qui a refusé de manger pour 68 jours. Elle a terminé sa protestation quand, avec le refus d'action du gouvernement, plusieurs NGO se sont rallié pour annoncer qu'il y aurait une Enquête de Citoyens. "C'était bien de pouvoir finalement manger et les enquêtes seront d'excellents forums pour renseigner les gens." a dit Dillman. "Il est vrai que de ne pas manger a été un défi, mais la plus grande difficulté a été d'attirer l'attention du gouvernement sur notre cause. C'est possible que maintenant le premier ministre McGuinty va écouter le peuple de l'Ontario." L'Enquête tiendra des audiences publiques à: Sharbot
Lake commençant le 1e avril, Kingston
commençant le 8 avril, Peterborough
commençant le 15 avril, Ottawa commençant
le 22 avril, Tous les forums seront de 1 à 5 pm et de 6 à 9 pm Plusieurs NGO y compris Greenpeace, Canadian Association of Physicians for the Environment, David Suzuki Foundation, Canadian Coalition for Nuclear Responsibility, Voice of Women, MiningWatch Canada, Students Against Climate Change, Sierra Club of Canada, The First Six Years et Toronto Climate Campaign, ont souscrit à des auditions ou vont participer à titre de témoins. De plus ample information à: www.uraniumcitizensinquiry.com 7) CCAMU ENDORSES "RECLAIM EARTH DAY" The Toronto Climate Campaign made a request to CCAMU to endorse the "Reclaim Earth Day." This was our response.
March 21, 2008 Dear Rita Bijons, The Community Coalition Against Mining Uranium (CCAMU) would be pleased to endorsement the "Reclaim Earth Day" event that is taking place Sunday, April 20th in Toronto. We very much support the Toronto Climate Campaign's efforts in reviving/reclaiming Earth Day as a consciousness that lasts throughout the year. We feel the need to integrate the efforts of the anti-nuclear moment with those who are focused on climate change. It is very disconcerting that Premier McGuinty is attempting to sell nuclear power as a way to cut greenhouse gas emissions in Canada. Together we can spread the word that the best methods of power generation are reduction/conservation and alternative energies. CCAMU recognizes that there is more to climate change than the emissions from coal-fired plants but it is a huge component that must be dealt with. What we can do to help: CCAMU is
the in the process of holding the "Citizens' Inquiry into the Uranium
Cycle" that is taking place throughout the month of April. Though
we would like to attend, your event falls very between two of the hearings
and all of us will be tied up with that process. We can however send out your information to our email listing as well as our letter of support. We would also happily put an ad on the front page of our website, linking our site to yours. We sincerely hope that Reclaim Earth Day exceeds your expectations and that many more people are awakened to our planet in crisis. On behalf of CCAMU, Lynn Daniluk 8) SOME BACKGROUND ABOUT EARTH DAY In April, 1970, the environmental movement burst onto the political stage with one of the largest grassroots demonstrations ever seen. Between 20 and 25 million people, mostly in the United States, answered the call on the first Earth Day. Event organizers were shocked at the response and marveled at the crowd that drew from every constituency: students and seniors; inner cities and small towns; faith groups and hippies. The success of Earth Day shook the Nixon White House, and over the next year Nixon spearheaded a series of environmental reforms: creating the Environmental Protection Agency; regulating fuel efficiency and emission controls in automobiles; enacting laws protecting endangered species and habitats; signing the Clean Water Act; and more. No government before or since has equaled that environmental record and it was the fear of a rising movement that forced Nixon to act. The Canadian government also reacted to the pressure from below for environmental action by forming a new federal Ministry of the Environment in 1971, pulling together various aspects of environmental policy that had previously been under the jurisdiction of a number of disparate ministries. This was followed by the development of environmental laws governing national parks, land use, wildlife and water. Over the years, corporations began to fund and sponsor Earth Day events, some out of sincere interest, more out of desire to buy "green" credentials. This shifted the emphasis from public rallying to put pressure on politicians and policy makers, to predominantly innocuous and symbolic events. Large scale, interconnected mobilizations were out. Decentralized photo-ops were in. The unfortunate result was, most activists began to ignore Earth Day. HELP US TO RECLAIM IT. Rita Bijons 9) JIM HARDING WRITES TO PREMIER MCGUINTY Letter to Ontario Premier Dalton McGuinty, March 22, 2008 Dear Dalton McGuinty: Fourteen
Ontario municipalities, including the country's capital, Ottawa, which
contains the constituency you represent, have already passed resolutions
calling for a moratorium on uranium mining in your province. These municipalities
are rightly concerned about radioactive contamination of the watersheds
that millions depend upon, as well as the end uses of this nuclear fuel
and its long-lived wastes. Why wouldn't they be concerned, as medical
groups in various places are also calling for bans on uranium mining to
protect human health. Just last week legislation was introduced prohibiting
uranium mining across 1 million acres of public lands in watersheds surrounding
the Grand Canyon. Retired Chief Bob Lovelace of the Ardoch Algonguin First Nations (AAFN) is now serving 6 months in a Kingston jail for contempt of court because he declared Algonguin law to be more fundamental than the authority of Ontario's Mining Act. Lovelace is a "political prisoner." It is the Mining Act, not First Nations' respect for natural law and protecting the land, that fundamentally contradicts the spirit of Aboriginal Rights in our Charter, of growing international law on the Rights of Indigenous Peoples; and, I might add, of the prerequisites of sustainability. Would your courts throw me into jail for stating that I, too, an immigrant with Celtic background, consider natural, ecological laws to trump your Mining Act? Now, six leaders from the Kitchenuhmaykoosib Inninuwug First Nations (KIFN) in northern Ontario have also been sentenced to 6 months in jail in Thunder Bay for contempt of court, for also protesting similar arbitrary actions by Platinex Mining in its search for platinum. Chief Donny Morris, Deputy Chief Jack McKay, Head Councillor Celia Begg, Councillors Samuel McKay and Darryl Sainawap, and Bruce Sakakeep are going to jail because your Mining Act contradicts the principles of Aboriginal Rights and international law. Their community now considers them "leaders in exile." In the compelling words of the Anglican Church officials who wrote you to protest the latest jailing of Indigenous people for peacefully protecting their land: "This relationship is regarded as a fundamental, moral and legal right by the United Nations and every religion and ethical system known to humankind." It is an added crime against justice that the huge fines being levied on these First Nations threaten to bankrupt their vulnerable communities. Just what is your intent? Do you plan to put all Indigenous people in Canada who are willing to protect the land for future generations, and those who support them, behind bars? International peace and security is presently threatened by oil-dependent, industrial countries (particularly the U.S.) using military force to maintain colonial control of foreign resources. I truly hope your government isn't planning to use police and courts to accomplish this within Canada's borders. This dispute began last summer when Ardoch Algonguin and Shabot Obaadjiwan First Nations protested Frontenac Ventures clearing trees and blasting in preparation for uranium exploration drilling, in an area near Sharbot Lake that includes land claims outstanding for 25 years. First Nations occupied this land to stop these infringements. I would do the same thing if a uranium company started clearing my organic farmland. Allowing this dispute to go to the courts is no answer to what is an issue of fundamental justice rather than provincial law. The Supreme Court has called on Canadian governments to have meaningful consultation with First Nations prior to any resource extraction on unceded land. Such consultation is also called for by international law on the Rights of Indigenous Peoples. In the aftermath of the dispute at Ipperwash that led to the death of Dudly George, your government made many statements that you intended to ensure such consultations, and that you would be doing things differently than the previous Conservative Harris government. What happened? We know that the federal Harper Conservative government has not supported Indigenous Rights at the United Nations, but we expect you to uphold these important principles of justice. So, why are you letting this happen? As Greenpeace so well put it in their letter to you, this dispute is "fuelled by your governments planned $40 billion expansion of nuclear generation." With an unprecedented uranium bull market resulting from a projected short fall of nuclear fuel with your planned expansion, "greed is motivating aggressive uranium exploration." This shortfall, however, isn't because of a lack of uranium in Canada, but because 85% of it is exported. As a result of the signing of the FTA and NAFTA, and the security of energy supply this gave the U.S., the Reagan administration of the time allowed its own uranium industry to shut down. Saskatchewan is presently the world's largest producer of uranium, but most of this goes straight south to the U.S., or to France, to fuel their highly integrated military-industrial nuclear systems. This raises vital questions about Canada's energy security, which are also raised by Alberta's tar sands, which pipe heavy oil to U.S. refineries while parts of Eastern Canada depend upon imported OPEC oil. Isn't it time to work for changes in pan-Canadian energy policy rather than perpetuating the neo-colonial policies that require you to lock up Indigenous people? Your government needs to give leadership on this. The Canadian people craving some sign that politicians actually care about the future of the planet will support you. Your decision to refurbish aging Candu plants and to build two new plants to bring nuclear-generated electricity up to 70% of Ontario's supply is ill-advised because it threatens Ontario's watersheds and undermines Aboriginal Rights. And it will also leave all the safer, more cost-effective and carbon neutral conservation and renewable energy options, as Greenpeace put it, "fighting over the scraps". True energy security will be rooted in sustainable approaches that don't threaten environmental health or Aboriginal Rights, or continue with practices that keep Canada a non-renewable resource hinterland. The repression of those who defend the land, water and air from degradation is not wise government or a step in the direction of sustainability. I encourage you and your colleagues to reconsider your policies, declare a uranium moratorium, and review the Ontario Mining Act so that it becomes a template for creating a just and sustainable society. Regards,
Jim Harding, Ph.D., 10) TRANSCRIPT OF MARCH 17TH THE CURRENT WITH LOVELACE, MCKAY, REID AND SMITHMAN The Current on CBC Radio One Monday, March 17, 2008 Host, Anna Maria Tremonti interviews Kitchenuhmaykoosib Inninuwug Councillor Samuel McKay, KI and Ardoch Algonquin Counsel Chris Reid, and Platinex Counsel Neil Smithman about the dispute involving Platinex's mineral exploration activities on KI's traditional lands in Northern Ontario and the fate of KI protesters scheduled to be sentenced on contempt charges in court later that day. With additional audio footage of Ardoch Algonquin Spokesperson Robert Lovelace and Ontario Prospectors Association Director Gary Clark. [Beginning of Program Transcript] Anna Maria Tremonti, Host: Good morning I'm Anna Maria Tremonti and you're listening to The Current. In our last half hour, the long and surprisingly bitter history of sugar, but first, there could be platinum in those hills, but whose hills are they? A legal battle between a mining company and a small aboriginal community in northern Ontario called Kitchenuhmaykoosib Inninuwug, otherwise known as KI, is pitting mining claims against First Nations in a case that's also raising broader questions over mining laws in the country. Today six people from KI, including the band's chief, are facing jail time after being convicted of contempt of court for blocking a mining company from exploring for platinum on what they say are their traditional lands. Platinex, the company in question, says it has a legal right to explore for platinum on Crown land. And the Ontario Superior Court agrees. But the KI say their claim to the land should trump any right Platinex has. This is not the only dispute of its kind. Bob Lovelace is a negotiator for the Ardoch Algonquin First Nation. Last month he was sentenced to six months in jail for contempt of court in a similar dispute. Bob Lovelace is now at the Central East Correction Centre in Lindsey, Ontario. This is what he says is at stake in these cases. Bob Lovelace, Ardoch Algonquin First Nation: If we're going to start working towards a sustainable future for Canada and better relationships between aboriginal people and other Canadians, and if people realize that this is what it looks like on the front line - that people have to go to jail, that the government is so entrenched in its denial of its obligations - then this is what may happen. People have to be prepared for it. Well, that was Bob Lovelace, a negotiator with the Ardoch Algonquin First Nation. He is serving six months for contempt of court at the Central East Correction Centre in Lindsey, Ontario. Joining me now are two people - Samuel McKay is a KI Councillor who will find out later today if he will be serving time behind bars. Chris Reid is counsel for the six KI defendants as well as Bob Lovelace. They are both in Thunder Bay, Ontario. Chris Reid, Counsel for KI and Ardoch Algonquin First Nations: Good morning Anna Maria. Samuel McKay, why are you facing potential jail time? Samuel McKay, Kitchenuhmaykoosib Inninuwug: Um, it's a complex issue but to us it's very simple. We have a treaty land entitlement claim that's still outstanding as far as the First Nation is concerned. And that needs to be resolved before we start looking at considering any resource development in our traditional territory. And there's the issue about Crown land and Reserve land. For us there is no real difference because within our traditional territory that's what our people used in the past for us to survive today. And that's really important to us and that land is still being utilized today by our people. Tremonti: Okay, so describe for us what you did. What were you actually convicted of? McKay: Not allowing Platinex to do their exploratory drilling. Tremonti: How so? What did you do? McKay: Just told them we're not allowing them. We haven't really done anything. Tremonti: You didn't blockade or anything? McKay: Well, in 2006 they were asked to leave when we found out that contractors were already setting up camp and also we had made it clear to Platinex that they weren't welcome to come to our community until this issue was resolved - the bigger issue. And they attempted to come in September and we made it clear we weren't ready to welcome them. Tremonti: And how did you make that clear? McKay: We just met them at the airport and we wouldn't let them come into the community. Tremonti: And that's what you've been convicted of contempt of court for? McKay: Yep. Tremonti: And are you prepared to go to jail if it comes to that? McKay: Yep. There's no question in my mind. Tremonti: Now Chris Reid, you are representing Bob Lovelace, Samuel McKay and the other KI defendants. What is at the root of these conflicts between the First Nations protesters and the mining industry? Reid: Well the root of the conflict is Ontario's outdated Mining Act and the approach of the Ontario Government to resource development in Ontario. The Government of Ontario continues to treat all Crown land - even if it's land that is claimed by First Nations and even if it's land with the important ecological values - as being primarily there for the purpose of resource extraction. And they continue to collude with the mining industry to permit resource development, exploration and mining with little or no consultation with affected First Nation communities or with other communities. Tremonti: So where is the land in question? Reid: In the case of Kitchenuhmaykoosib, it's about 600 kilometres north of Thunder Bay. Tremonti: And is it on Reserve land? Reid: No, it's not. Tremonti: It's Crown land? Reid: Well, that's exactly what's in dispute. The Government of Ontario considers it Crown land. Kitchenuhmaykoosib considers it still within their traditional territory and land which is vital for their use and believe that they've never surrendered their right to govern that land either. Tremonti: Okay, and Ontario's actually saying that they actually agreed to surrender that land for their Reserve land, correct? Reid: Well, that's their position, yes. There is a dispute over what exactly was meant by Treaty 9 when it was signed and when the Adhesion was signed in 1929. Tremonti: Okay, and now you talk about that fact that it is an outdated Mining Act so you're saying the law needs to change? Reid: Yes, and even within the law as it is, if the law isn't changed though there are approaches one could take that would not even require change to legislation. Within the act, there are policy options. They could negotiate land use planning with First Nation communities and other local communities to withdraw ecologically sensitive areas or areas that are the subject of a land claim from mineral staking and development. The Government of Ontario simply chooses not to do that. They choose to simply allow it all to be opened to mining companies. Tremonti: Okay, I'd like you both to listen for a moment to Gary Clark, he is the executive director of the Ontario Prospectors Association. And this is his view. Gary Clark, Ontario Prospectors Association: The staking rush no different than the old Gold Rush times you used to see in the Yukon with the guys trucking over the mountain. Everyone seems to rush there at one time and without a free entry system that allows you to go there quickly you then end up with a backlog of people trying to acquire and you could end up with not the first person with the idea getting the ground. We're worried that these cases could basically slow us down when it comes to acquiring ground. We don't have a problem with talking to people after the ground's acquired and talking about what we're going to do. It's just the fact that we'd like to be able to tie up the ground so that the competitive edge is still there. Tremonti: Okay, well Gary Clark of the Ontario Prospectors Association has that view. Sam McKay, what's your reaction to what he's saying? Mckay: Well, it hasn't changed. It's still the same. We expect like anything that's going to have a direct impact in our community whether in the short term or in the long term, we expect for someone to come and talk to us first. Tremonti: So are you saying had Platinex come and talked to you that you could avoid all this? McKay: Not necessarily Platinex, but Ontario certainly has a legal obligation to fully consult first before they even permit or issue the permit. Tremonti: So, in other words, Chris Reid, isn't this the fact that had they come and consulted - and sat down with the members of the KI Band - that would have been good enough? Reid: Well, that would be a major part. We'll never know whether it'd be good enough because the Government of Ontario chooses not to do that, and I think what the gentleman from the Prospectors Association is essentially saying is that the interest of, the greed of a few people who stand to make a profit from resource extraction should trump the interests and the rights of all Ontarians and First Nations in particular. Now the Government of Ontario could sit down with First Nations in all of these areas where there are disputes about land and negotiate land use plans to protect sensitive areas and identify areas where mineral development and exploration could be possible. Instead, they choose to do nothing and simply leave it all open for development. They act as if these minerals are going to expire or something if they're not extracted now, now, now instead of taking a careful approach. Tremonti: So your complaint is really with the way the Government deals with it, not with the companies. The companies say they're following the law - the Government gives them the right to do it. And you're saying it's the way the Government does it as opposed the companies? Reid: Well the law says.That's right, it's up to the Government to either change the law or work within the existing law to sit down with communities - First Nations in particular - and negotiate agreements which could protect lands while land claims are being resolved and they simply choose to do nothing. Tremonti: Now, the Platinex mining company put out a press release saying it never sought jail time for any of your clients. What do you say to that? Reid: Well, it's not correct. In written submissions they clearly sought jail time and in oral submissions to the court as well. It's quite clear that KI's response to the Platinex press release was posted to the Kitchenuhmaykoosib Inninuwug web site and I think it's very clear on the record. Tremonti: And so what do you think will happen in court today? What are you expecting? Reid: Well, I'm not going to predict what may happen today. We do know that in the almost identical case of the Ardoch Algonquin Spokesperson Robert Lovelace - Mr. Lovelace was sentenced to six months in prison for doing exactly what the Kitchenuhmaykoosib people have been doing which is peacefully, nonviolently and without any property damage opposing mineral extraction in disputed territory. Now Justice Smith doesn't have to follow that decision - it's not on him so the result - the sentences could be very different today and I really can't predict what it'll be. All we know is that in the one similar case that's what happened to Bob Lovelace. Tremonti: And the Ardoch Algonquin are a non status band and the KI is a status band. Does that make a difference? Reid: It shouldn't make any difference. There's no legal basis at all for treating a non status First Nation community any differently than a status band, but we know that in policy the Government of Ontario does routinely discriminate against non status First Nation communities in a number of areas, even though they've been told by the court several times to stop doing that. Tremonti: And that would suggest the non status band doesn't have a Reserve, am I right? Reid: That's correct. Tremonti: .Reserve or a treaty whereas the other group does. Reid: That's correct. They've never surrendered Title to their land is how they look at it. They've never ceded Title in any way of the Algonquin Territory. Tremonti: And the Government looks at it as they've never agreed to it? As opposed to ceded, right? That's the problem. Reid: Well, the Government's view is they simply ignore them. They act as if a community doesn't exist if they are not a registered band. They completely ignore them. The Ardoch Algonquins haven't even received a response from the Government of Ontario to their several requests for negotiations. Tremonti: So if we look back at the KI - are they looking for a cut of any platinum exploration? Is that what it comes down to? Reid: Not at all. No. What they have clearly said is that within the current generation - the people currently leading this community - they are not prepared to have resource development and mining in their territory at all. It's not a question of how much money they're going to receive. What both communities - Kitchenuhmaykoosib and the Ardoch - have done is they've jointly proposed to the Government of Ontario that a joint panel be established with representatives from the Government of Ontario to examine the causes of these two conflicts and make recommendations for avoiding conflicts like this in the future. The Government of Ontario has not responded to that proposal. Tremonti: So Samuel McKay, is there a chance that you'll end up in jail today? McKay: Yeah, I think there is, yeah. Tremonti: And? You're okay with that? McKay: Yeah, as far as I'm concerned I'm prepared to go to jail if that's what it takes for a long term solution to the overall issue - not just the KI-Platinex issue. Because we believe that the provincial government needs to change on how it conducts itself when it comes to First Nations - whether it be within the Reserve boundaries or within the traditional territories. Tremonti: Well, thank you both gentlemen for speaking with me today. Reid: You're welcome. Thank you. McKay: Thank you. Tremonti: I've been speaking with Samuel McKay - he's a councillor with the Kitchenuhmaykoosib Inninuwug aboriginal community - KI. Chris Reid is a lawyer representing McKay and five others from that community. He is as well a negotiator for the Ardoch Algonquin First Nation. They both spoke to us from Thunder Bay. You are listening to The Current on CBC Radio One, Sirius Radio 137 - I'm Anna Maria Tremonti. Neil Smithman is a lawyer for Platinex - that is the mining exploration company that obtained a court injunction to continue exploring for platinum on Crown land that the KI claims as its own and he is joining us from Thunder Bay, Ontario. Good morning. Neil Smithman, Counsel for Platinex: Good morning. Tremonti: You just heard my conversation with Mr. McKay and Mr. Reid. How likely is it, do you think, that Mr. McKay and the other defendants will end up in jail today? Smithman: I'm not going to comment on that, unfortunately, because its still before the court and I don't think it'd be proper for me to comment on what is about to happen but I certainly am in a position to comment on what has happened to date in this case. Tremonti: And why do you think it has come to this point? Why was there no way of reaching an agreement outside the courts? Smithman: We tried within the context of the court and outside of the court to reach an agreement with Kitchenuhmaykoosib but unfortunately after months and months of consultation and negotiation have been unable to reach any kind of accommodation. Indeed, even before this matter started there were years and years of discussion by Platinex with KI. Tremonti: Well, they you haven't consulted so where's the disconnect? Smithman: I'm not so sure they're saying Platinex hasn't consulted. I think the position of KI is that the Ontario Government hasn't sufficiently consulted and that - I'm not here to speak on behalf of the Ontario Government but that flies in the face of the decision of Mr. Justice Smith who did say in his decisions - one of his decisions I should say - that there has been consultation and sufficient consultation. Tremonti: So in your view what is at the root of this conflict? Smithman: I think that there's a fundamental disconnect over the interpretation of Treaty 9. The First Nations' approach to Treaty 9 is that the traditional territories belong to them and that's not what Treaty 9 says and that's not what the courts have said. It's true that they have certain rights - to fish and hunt and trap, basic usufructuary rights to that property - but what the treaty says is that this land has been ceded and is - in effect and in law - Crown land and as Crown land then it's the Ontario Government who can decide what use can be made of this land, subject to the right that has been imposed by the Supreme Court of Canada for the Ontario Government to consult with First Nations before any development or any exploration - such as Platinex's - takes place. Tremonti: So what would you like to see the Ontario Government do differently in dealing with this conflict? Smithman: From our perspective, we would like to see the Ontario Government resolve these differences with various First Nations. There's significant uncertainty for companies like Platinex who certainly didn't budget the legal cost for trying to get access to the land which it feels has a right to get access to under the Mining Act. So Mr. Reid says there's a need to reform the Mining Act - well that's something beyond the perview of companies like Platinex and it's really a political decision that needs to be made. It's a political dispute, not a legal dispute, as far as Platinex is concerned. Tremonti: Now can I clarify, are you planning to mine platinum, or are you still exploring for platinum, and what's the difference? Smithman: Well, exploration is very different from mining. What we're talking about here is modern day prospecting. What happens with junior mining companies and others who are of limited funds is that they stake the property, that's the first thing that's done, as Mr. Clark as pointed out there's a real need to allow this access in this manner. The first party that stakes gets the rights that follow from that staking so consultation in that context is pretty difficult. Otherwise, you're going to have claim jumping. And so, what happens after that is there's a need to do some drilling - the exploratory drilling provides samples upon which varied analyses are made and that can determine the feasibility of potential mining well down the road. The chances of mining taking place based on initial exploration are something like one in ten thousand. Tremonti: Okay, so you agree with him it's like a Gold Rush time - that you have to get in there? Smithman: Well, no it's not. The Gold Rush analogy is symbolic in that it's whoever stakes the claim first has the rights. So, and that's why there's a certain amount of secrecy with respect to prospecting because if there are rumors that might have potential before any given other prospector so that's why there's a need for this kind of system currently. Tremonti: And that's why he uses that analogy and the competitive edge? But this isn't the 1800s - this is 2008. Why would you still have to kind of sneak in and do a claim? Why can't that change? Smithman: Well, Anna Maria, if you're up north, and you think you've found a property that could be feasible for mining and I find out about it and I get there ahead of you then you're out. Tremonti:
Right, but why does that system still work? And as Mr. Clark points out,
that's really from the Gold Rush days of the 1800s. Do you think the system
has to change? Tremonti: Now what are the broader implications you see on this issue? Smithman: Well, the broader implications with respect to this matter? This matter before the courts today - as in the Ardoch case that Mr. Reid alluded to - are very similar in the fact that this is beyond the mining industry, this is beyond Platinex. And it's all about obeying a court order. What we have is contempt of a court order, a blatant refusal to obey a court order, in defiance of a court order, and that's something the courts are dealing with and it's really beyond something that involves the company directly. Tremonti: And yet I have court transcripts here that suggest you wanted - that if they're found in contempt of court they should be jailed. Smithman: Well, again, I'm not going to comment on what's happening today. Tremonti: Well, this happened - this is testimony from before. This is transcripts from before - that that's what you wanted. You wanted them jailed if the court goes ahead and does this today - that you're in agreement. Smithman: Well, first off, the transcripts that you have are based on submissions to the court and that decision has not been made yet. And so it's something that's before the court and something that's going to be dealt with - presumably today. Tremonti: Okay, but can you confirm that before court? Why can't you confirm that? Smithman: Why can't I confirm what? Tremonti: That you have asked the court - the court said - you've made a reference to an order of incarceration to continue until such a time as the contempnor has purged their contempt, or at least indicated they will comply with the court and you've said yes. And then the court asks you if you're looking at a range of 6-9 months. Smithman: That was all in the context of the question that was asked by Mr. Justice Smith and what the position was of Platinex at the time in the court. And the position of Platinex at court is very simple, straightforward, and Mr. Justice Smith knows exactly what it was. Tremonti: Okay, so you're telling me that this is wrong? Smithman: I'm telling you that what you have there has been taken out of context. What the position of Platinex was and it was made very clear at court is that Platinex was not asking for incarceration. But if there was to be incarceration, and that's something the court had to deal with, because it's a breach of a court order, then the range would be 6-9 months. Mr. Justice Smith asked those questions. We responded. But in the beginning it was straightforward. Mr. Justice Smith asked what the position of Platinex was. Platinex made it very clear that we're not asking for jail time. Tremonti: If these defendants go to jail, how does that affect how you deal with them down the road? Smithman:
Well, the problem that Platinex has is that all it's trying to do - is
do what other mining and exploration companies do - and that's act pursuant
to the law, under the Mining Act, pursuant to the Mining Act. And this
is something - this is up in the far north. There's a need to be able
to interact with the community and this is not helpful to either the community
or to Platinex as far as the future of exploration is concerned around
that area. Smithman: You're welcome. [End of
Program Transcript] |