[IPSM] Znet: Canada's latest political prisoners

[stef at tao.ca]

Canada's latest political prisoners

By Justin Podur

Monday, March 31/08

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
<http://www.miningwatch.ca/index.php?/110/Elliot_Lake_Uranium>).

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
<http://www.zcommunications.org/znet/viewArticle/3993>). 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
<http://www.zcommunications.org/znet/viewArticle/14439>), 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 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.