[R-G] Canada's newest political prisoners: Indigenous leaders jailed for protesting mining exploration on their land

[Anthony Fenton]

Canada's newest political prisoners
Indigenous leaders jailed for protesting mining exploration on their  
lands

March 31, 2008 By Justin Podur

http://www.zcommunications.org/znet/viewArticle/17019

On March 18, 2008, the Ontario Superior Court's Judge Patrick Smith  
sentenced Chief Donny Morris and six other council members from the  
Kitchenuhmaykoosib Inninuwug (or KI) First Nation, a community of  
about 1200 people in northern Ontario, Canada, to six months in jail  
for ‘contempt of court'. They defied a court order to stay away from a  
part of their lands, slated for mining by the Platinex Corporation.  
They were also fined an exorbitant sum, but the judge applied the jail  
terms because he knew that they could not pay - they were already  
bankrupt because of the $500,000 in court fees they had paid trying to  
defend themselves from Platinex before the court, over the past  
several years. Platinex had sued KI, at first for $10 billion (before  
reducing it to $10 million).

In his sentence, Judge Smith cited as a precedent the jailing of  
Ardoch Algonquin Nation leader, Bob Lovelace, who had been sentenced  
to his own six months on February 15 for trying to stop uranium mining  
by the mining company Frontenac Ventures on their lands, about 100km  
from Canada's capital, Ottawa (for a map of the area and some  
discussion of the legal aspects see the Ardoch Algonquin First  
Nation's website at: http://www.aafna.ca/index.html and specifically   http://www.aafna.ca/Uranium_mining.html) 
. Lovelace was also ordered to pay $25,000. Paula Sherman, the  
Nation's chief, was ordered to pay $15,000 and the community an  
additional $10,000, plus $2000 a day for non-compliance. The judge in  
this case, J. Cunningham, said that he found the sentencing an  
"unpleasant task."

The jailing of these leaders offers a window into a whole host of  
Canada's irrationalities and cruelties - the callous dispossession of  
the indigenous, the search for quick profits to be torn out of the  
ground and turned into money whatever the consequences, the energy  
system based on unsustainable premises, the heartlessness in defence  
of an indefensible system.

The story in Canada is an old one, described eloquently in a 25-year  
old book that could have been written yesterday by Robert Davis and  
Mark Zannis (1983) called "The Genocide Machine in Canada". Indigenous  
nations are deprived of their landbases and surrounded by settlers,  
extractive industries, or developments. They lose their means of  
survival when their lands are taken or when their lands are poisoned.  
They are dependent on small payments from the government. When they  
resist further encroachments on their lands, these sources of income  
are threatened. If that doesn't scare them, there's always violence  
and jail terms.

To understand the significance of the jailings, it is necessary to  
take a moment to explain Canada's laws on indigenous rights and public  
land use.

Legal trickery

KI falls under "Treaty 9", which was signed in 1929. The legal dispute  
is that Platinex claims it has a right to explore and exploit under  
Ontario's mining laws and tried to do so in 2005-6. Do the rights of  
mining companies to profit, based on provincial jurisdiction, trump  
agreements between the federal government and indigenous nations in an  
effort to protect the nations' means of survival? These means, to be  
clear, are good hunting, gathering, and fishing lands on Big Trout  
Lake in some good natural forest that will be destroyed by mining  
operations. KI argued that the drilling would do irreparable harm.  
Platinex argued that they were losing money. The Ontario court went  
with Platinex.

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 public land can be exploited for profit by private interests. The  
legal issue is whether this law supercedes all others - as well as any  
ethical or common sense that anyone might apply to the situation. KI  
and others have claimed that the Mining Act is unconstitutional,  
bypassing as it does the ‘duty to consult'. The court claimed that if  
these leaders weren't jailed, there would be a loss of respect for the  
law, the creation of two regimes of justice. But there are two regimes  
of justice already. Those who illegally take or pollute indigenous  
territories are not punished with jail terms, the way Bob Lovelace and  
these other leaders have been. The Shabot Obaajiwan's spokesperson  
Earl Badour put it succinctly in a press relese of March 18. "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 Badour. "If the law doesn't serve  
their purposes they conveniently ignore it." The Shabot Obaajiwan is  
suing the mining companies and the government based on the ‘duty to  
consult' in Supreme Court rulings and the constitution. The duty to  
consult means that indigenous communities must be meaningfully  
consulted on resource exploration on their lands. This of course  
clashes with Ontario's Mining Act, which is based on corporations  
grabbing whatever they can. The concern for the rule of law that was  
Judge Smith's justification for the draconian sentences is a concern  
for the Mining Act above the constitution and Supreme Court decisions.  
Higher laws have been circumvented through for the sake of profit.

Other legal trickery included the company getting a court order and an  
injunction rather than filing trespass charges against the indigenous  
- the trespass charge would have opened up all the legal questions  
about whose land it was.

Mining Politics

The company trying to get the uranium at the expense of the Ardoch  
Algonquin community, Frontenac Ventures, is shrouded in mystery.  
Mining researcher Jamie Kneen told IPS's Chris Arsenault that "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. Indeed, when the provincial court in 2006 ruled that  
Platinex had to stop its 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.

For a sense of what KI's territories face if uranium mining does take  
place, there is precedent. Canada's most famous uranium mine was the  
Elliot Lake mine, also in northern Ontario, that left 130 million tons  
of tailings and destroyed the Serpent Lake ecosystem while helping the  
nuclear weapons buildup of the 1950s and 1960s (see Mining Watch's  
page on Elliot Lake).

There are no non-toxic industrial mining methods (and certainly if  
there are they haven't been discovered by Canadian mining companies),  
so people could be forgiven for asking whether it would be so bad to  
leave the stuff in the ground. Uranium after all is a material that is  
radioactive and poisonous and which, once used, is hazardous for  
thousands of years. In the words of Doreen Davis, another Algonquin  
leader who was sentenced to jail, "Uranium mining has no record other  
than environmental destruction and negative health issues". Uranium is  
a part of Ontario's current energy mix. Nuclear power is being  
presented as a solution to climate change and the oil running out. But  
nuclear power, like ethanol, is a false solution. Ethanol offers a way  
to take huge amounts of agricultural land out of circulation so that  
societies can feed cars and starve people. Uranium offers a way to  
trade the dangers of climate change in for the dangers of radioactive  
poisoning and potential nuclear catastrophe. But in both cases, the  
rising prices are making it economically viable to further dispossess  
and destroy communities - in Latin America for ethanol, and in Canada  
for uranium.

Paul McKay, a friend and neighbour of Lovelace's, made some other  
points about the mining in an op-ed in the Kingston Whig-Standard: "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.  
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, too, McKay argues, recalling the Elliot Lake mines, would  
the pollution risk of trying to extract this low-grade uranium from  
these deposits.

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. These include giants like the De Beers  
diamond company, which is operating in the north around the James Bay.  
Two, to the indigenous - that any resistance against the latest  
bonanza of extraction and destruction will be met with criminalization  
and brutal penalties. McKay also suggests that these mining companies  
might be looking, not for platinum or uranium, but for a government  
payoff "if the Ontario government effectively pays it to go away. If  
this occurs, then it will be Ontario taxpayers who end up being mined  
for millions. not uranium or platinum deposits."

This, too, has a recent Ontario precedent - the Douglas Creek Estates  
on Six Nations Territory (I wrote about this for ZNet in 2006). In  
that case as well, the Ontario government is attempting the tactic of  
paying a massive amount of taxpayers' money to a corporation to "go  
away". In addition to benefiting  speculators, it has the added  
propaganda benefit of making indigenous claims seem prohibitively  
expensive and "impractical" (the practicalities of endlessly expanding  
suburban subdivisions and toxic uranium and platinum mines having been  
accepted as a given).

Governmental games and the indigenous response

When indigenous people from affected communities lit a symbolic,  
sacred fire in support of the jailed in Thunder Bay, a town of 100,000  
people about 600km from the KI First Nation, in support of the jailed,  
city police and fire marshals extinguished it - itself an ugly and  
symbolic gesture.

As in other cases (see my article on Shawn Brant for example), the  
government's actions are narrowing options down to make resistance the  
only option for indigenous communities. 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 and the mining companies stance. A  
group of Chiefs from the western Canadian province of British Columbia  
suggested the AFN (Assembly of First Nations) tear up its Memorandum  
of Understanding (MoU) with the Prospectors and Developers Association  
of Canada (PDAC), signed on March 4, 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 jailings 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,  
and now they say, 'We're not weak and we'll show you by throwing these  
Indians in jail...' What is happening here is we've been criminalized  
for practising our way of living. 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."

The federal government has been silent, and by its silence, leaving  
the issue to the province, has sent a message that indigenous issues  
are not national issues at all. Given the views of the Harper regime  
on indigenous rights, however  -- prominent Harper adviser, the  
University of Calgary's Thomas Flanagan, has argued in his book "First  
Nations? Second Thoughts", that "European civilization was several  
thousand years more advanced than the aboriginal cultures of North  
America" and that "the European colonization of North America was  
inevitable, and, if we accept the philosophical analysis of John Locke  
and Emer de Vattel, justifiable" -- it is probably better that the  
Harper people not be involved. As for the provincial government, they  
are using familiar tactics. While the Superior Court imposes draconian  
sentences, the provincial government's Aboriginal Affairs minister  
Michael Bryant offers a ‘compromise' - in which the leaders don't go  
to jail, pay only some of the fines, and allow the mining to continue.  
In other words, surrender. And despite having tried very hard to  
prevent jail sentences, Bryant says, he's not willing to give up  
(presumably on trying to get the indigenous to give up).

But the government and the mining companies are asking too much. As  
they do in other parts of the world, mining transnationals try to  
isolate the communities that are affected. They want the indigenous to  
consent to the destruction of the small amount of land that has been  
left to them, in order that some companies can make money extracting  
toxic metals. If consent is not forthcoming, government officials will  
use force. But to use force, they'll still have to convince Canadians  
that it's worth destroying other people's lands and livelihoods for  
uranium, platinum, diamonds, or money. They are betting on Canadians  
being ignorant, or indecent.

Justin Podur is a Toronto-based writer and activist. He can be reached  
at justin at killingtrain.com.