Noopemig Water- wet, wild and free (part two)

To add to the call for greater scrutiny at what is taking place in the James and Hudson’s Bay lowlands, the Matawa Chiefs Council, whose communities will be directly impacted by the activities in the Ring of Fire have also written a letter to Ministers of the Environment, Peter Kent (Canada) and John Wilkinson (Ontario) respectively, calling for a “Joint Review Panel Environmental Assessment (EA) for Mining and Enabling Infrastructure in the traditional territories of the First Nations within the Matawa First Nations.”

The Matawa First Nations Chiefs state that “the cumulative effects of these mining and infrastructure projects (road, rail, hydro, and telecommunications) on the traditional territories of our First Nations will profoundly affect our communities and the future of all of Northern Ontario…..the sensitive aquatic and terrestrial ecosystems of this area, with its high water table and  many rivers and streams will be significantly impacted by these developments; this is especially true for those remote First Nations closest to the Ring of Fire and infrastructure areas.”

The Matawa First Nations Chiefs state that companies have submitted Project Descriptions to the Canadian Environmental Assessment Agency (CEAA) and that, “Our First Nations were not consulted in these Project Descriptions and per Supreme Court of Canada Decisions (Mikisew, Haida, Taku River Tlingit, etc.) the Crown is to consult with First Nations.”

For a number of years now, Supreme Court of Canada jurisprudence says that if the Crown contemplates conduct that will impact Aboriginal and Treaty rights, (Section 35-Constitution Act-1982), it must consult and accommodate the rights-holders prior to the impacting of said rights.

In May 2008, the Ontario Court of Appeals, upon releasing the Ardoch Algonquin and the KI-6 to time served, ruled that there was a “duty to negotiate to reconcile aboriginal interests with competing interests.”

It was shortly after the Court of Appeals decision, two (2) pieces of legislation were introduced at Queen’s Park to deal with mining and related issues (amended Mining Act) and land use planning ( the Far North Act) respectively, to reflect the public outcry against the incarceration of First Nations as a result of an archaic Mining Act.

Premier Dalton McGuinty stated, “Our plan will ensure that mining potential across the province is developed in a sustainable way that benefits and respects communities. We will ensure that our mining industry remains strong – but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private land owners and Aboriginal communities. The Ontario Government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.”

Indigenous peoples have made declarations and have been holding “Mother Earth Water Walks” to call attention to the sacred gift of water, the source of our life, the source of all life.” since 2003 to put into action the Indigenous Declaration on Water made in the summer of 2001 which states:

"As Indigenous Peoples, we raise our voices in solidarity to speak for the protection of Water. The Creator placed us on this earth, each in our own sacred and traditional lands, to care for all of creation. We stand united to follow and implement our knowledge, laws and self-determination to preserve Water, to preserve life."  Indigenous Declaration on Water, July/August 2001, British Columbia, Canada.

On July 5, 2011, Kitchenuhmaykoosib Inninuwug (KI) held a referendum on a Water Declaration to “protect all waters that flow into and out of Big Trout Lake, and all lands whose waters flow into those lakes, rivers, and wetlands, to be completely protected through our continued care under KI’s authority, laws and protocols.” They voted overwhelming to protect their watershed.

It is estimated that one-fifth of the world’s freshwater is in Canada and roughly 3.9 % located in the north of Canada so it is under these challenging circumstances that watershed protection efforts are coming to the Far North.

The four (4) major rivers and the surrounding watersheds in the Far North  appear like arterial blood veins as they provide water and nutrients to an ecosystem that provides life to watersheds and lands, including throughout the Ring of Fire, along the way to Hudson’s and James Bay in Noopemig.

Noopemig Water – wet, wild, and free….

At least for the time being, water continues to serve its purpose to provide life-giving water to Mother Earth as it flows freely, creating paths to hydrate all forms of existence on this elaborately-created planet.

Rivers and lakes run throughout Noopemig, providing water and nutrients that enable life to flourish throughout Planet Earth. It is said that about 74-75 % of our planet is covered under water by rivers, lakes, oceans, and polar ice caps. It is also said that our bodies are comprised of about 70% water located mostly in our cells. 

According to the Indigenous Environmental Network (IEN)  97.5% of the water covering the earth’s surface is seawater (salt) and 2.5% of the freshwater is located in glaciers, permafrost and groundwater which would be difficult and expensive to access.

The IEN website on the World Water Statistics says that “less than 1% of the world’s water is available for human consumption,” and that “over half of that 1% is polluted and unusable for human consumption!!” The website includes a quote attributed to Julie Stauffer, author of “The Water Crisis,” which says that, “Not only is the level of water in the global well getting low, the water is also polluted sometimes to the point it is no longer drinkable.”

Along with the water becoming undrinkable comes the impact on the traditional food supplies in the Far North through the fish and animals that use these same waters, which then provide the main food sources of peoples who have traditionally lived on and off the land. The communities in the Far North see these waters as culturally significant and as their lifeblood – providing clean drinking water for all life, habitat for fish and water life, food and travel ways, moisture for the air, etc. -  and deem them worthy of protection.

Wildlands League will be collaborating with communities and tribal councils in the Far North of Ontario, who live on or near four (4) major rivers over the next two (2) years to advance watershed planning.

The four major rivers, the Albany, Winisk, Attawapiskat and the Severn watersheds are four (4) of only 12 left in North America south of 55 degrees that remain undammed and unregulated (although there is a diversion on the Albany River near its headwaters upstream) thus making them ecologically significant. The Ekwan is another river community members have expressed concerns about too.

This project will support tribal councils and indigenous communities, who are often most impacted by water quality and water quantity changes, “to develop culturally-appropriate, community-based approaches to watershed stewardship,” including “advancing mutually-supported river-system goals.”

It will also increase the awareness of watershed protection and the need for proactive planning and the tools and options that are available for the protection of watersheds. As development like forestry and mining move northward, there is an increasing need to understand how ecosystems function and what the impact of development will be upon these ecosystems including their consequences to the Far North communities.

A majority of First Nation communities do not have the resources or the capacity to begin to deal with the changes that are coming into their traditional territories. Wildlands League is committing more than 13% of its budget this year to providing support and capacity to advance watershed protection for the maintenance of healthy ecosystems. This means 13% of its budget is going directly to First Nations. This is an important feat.

Although there are legal mechanisms in place that say that activities like mineral resource development will be done, “in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in Section 35 of the Constitution Act, 1982, including the duty to consult and accommodate and to minimize the impact of these activities on public health and safety and the environment,”  increasingly, third party interests are being established in First Nation traditional territories without the knowledge of the communities or consideration of environmental protection.

Claim staking continues under the old Mining Act free-entry system as the new regulations under the newly-reformed Mining Act will not be available until April 2012. These claims will then be grand-fathered and will not be affected by any community-based land use planning by First Nations under the Far North Act.

Exploration continues in places like the Ring of Fire, which is considered by some to hold one of the world’s largest chromite deposits in the lowlands of Hudson’s Bay. It is expected that the activities in the Ring of Fire will have a direct impact on at least three (3) of the major rivers including the streams, creeks, rivers and tributaries in the Ogoki, Kapiskau and the Ekwan watershed catchment areas.

While a coalition of environmental organizations has called on the federal government to set up a joint-review panel to ensure that mining development is monitored closely and that these activities adhere to environmental standards, the silence has been deafening thus far….

The roar of the rushing rivers continue throughout Noopemig, seemingly oblivious to the increased risks and pressures, that development will place on fragile ecosystems and to the peoples who depend on these waterways to continue running freely.

Why has it become necessary for the environmental groups to reach out beyond the borders of Ontario to try to ensure mining development is monitored so that it adheres to environmental standards? What are the communities in the Ring of Fire doing and what does this mean for the watersheds located on the traditional lands in the Far North? More on this in my next entry next week.

Noopemig in Yellowknife, Northwest Territories

Northern Voices-Northern Waters

With temperatures in the mid-minus 30’s and with the water underneath a blanket of snow and ice, the Government of the Northwest Territories (GNWT) provided a warm and welcoming reception as they hosted members of the Forum for Leadership on Water (FLOW) on water management issues. FLOW members, a group of Canadian independent water experts who encourage government action to protect and steward the most precious natural resource – water, had amongst its delegation: the Executive Directors of the Centre for Indigenous Environmental Resources (CIER) and Simon Fraser University’s Adaptation to Climate Change Team (ACT), Academia, ENGO’s, First Peoples and funding institutions involved in water protection and who are concerned with the changing environment.

Canada’s North with its abundant land and water resources are at risk as changing temperatures impact water quality and ecosystems that uphold the fragile balance from which all life exists and flourishes. Changing weather patterns throughout the world are evident as the drivers of climate change continue to stoke the fires of the economic engine often without proper mitigation measures on the horizon. Rivers, lakes and water systems are impacted affecting the lives of people, animals, fish, birds and plants alike that depend on these systems. People living in the north who depend on the land and water for drink, food, transportation, culture and recreation are noticing the rapid changes to which they have to make adaptations to their lifestyle.

The Government of the Northwest Territories, both present and former leaders continues to champion water protection and security by providing leadership for the development of the Northwest Territories (NWT) Water Stewardship Strategy- Northern Voices, Northern Waters. 

Deputy Premier, the Honorable J. Michael Miltenberger, who is also the Finance Minister and the Minister of Environment and Natural Resources (ENR) in the GNWT, says that someone had to take on this challenge – as the global warming train has left the station without a driver. “The federal government has said that they will not take the lead (and) climate change is on the tracks and nobody seems to be driving the train!”

Premier Floyd Roland says that northerners have always talked about taking control of northern waters and lands. “The land and water are key issues Northerners hold dear to our heart….It might be Canada’s backyard but it is our front yard.”

In 2007, the NWT Legislative Assembly declared that, “All peoples have a fundamental human right to water that must be recognized nationally and internationally, including the development of appropriate institutional mechanisms to ensure that these rights are implemented.”

The NWT Water Stewardship Strategy, Northern Voices, Northern Waters states as its vision that “The waters of the Northwest Territories will remain clean, abundant and productive for all time.” While the strategy only addresses freshwater ecosystems, it also states that it is the collective desire of NWT residents “to safeguard our water resources for current and future generations.”

This strategic goal is not without its challenges as the NWT residents live downstream from Alberta and British Columbia (B.C.) who operate major hydroelectric, oil and gas development, forestry and mining industries.

B.C. is building a third dam on the Peace River, a controversial 6.6 billion dollar hydroelectric project known at Site C. The reservoir is expected to flood over 5,300 hectares of land in the Treaty 8 territory. The First Nations in the area say that “it will cause irrevocable damage to the fish, wildlife and agriculture.”

Northern Alberta has the oil or tar sands project on the Athabasca River, the world’s largest deposit of crude bitumen and also the largest of the 3 major oil sands deposits in Alberta along with the Cold Lake and Peace River deposits.

On a tour of the Tar Sands project a few years back, I was astounded at the sheer magnitude of the equipment used to extract the bitumen - shovels several stories high and several 5 million dollar trucks transporting the bitumen to an oil extraction site. You can only imagine the huge quantities of water used daily to extract the oil from the sand and the resulting highly toxic waste material in the tailing ponds. Then there are the impacts to the quality of surface and groundwater and especially the impacts to the Mackenzie River Basin’s (MRB) freshwater deltas – the Slave and the Athabasca-Peace rivers.

According to the World Wildlife Fund (WWF)-Canada website, “the Mackenzie River Basin drains 20% of Canada’s land mass, gathering waters from British Columbia, Alberta, Saskatchewan, the Yukon, and Northwest Territories. The river provides 11% of the freshwater that flows into the Arctic Ocean, playing a critical role in regulating ocean circulation and Arctic climate systems.”

The governments of Canada, Saskatchewan, Alberta, British Columbia, the Yukon and NWT signed a Trans-boundary Waters Master Agreement in 1997 agreeing to 4 guiding principles for cooperative management as they exercise their legislative responsibilities in the Mackenzie River Basin. These principles include:

.           Equitable Utilization

.           Prior Consultation –“that provides for early and effective consultation, notification and sharing of information on developments and activities that might affect the ecological integrity of the aquatic ecosystem in another jurisdiction.”

.           Sustainable Development – “managing the use of water resources in a sustainable manner for present and future generations.”

.           Maintenance of Ecological Integrity – “managing the water resources in a manner consistent with the maintenance of the ecological integrity of the aquatic ecosystem.”

The Master Agreement produced a 13-member Board for the Mackenzie River Basin, which has no authority to regulate water resources either at the legal or policy level. The board’s role has been limited with very few resources and no real commitment from the signatories.

There is a lot of work ahead to ensure the implementation of the NWT strategy plus there are various on-going processes in the Mackenzie River Basin that will have an impact on how the NWT Water Stewardship strategy evolves.

Devolution is expected in the near future where the NWT will soon have the legal authority to deal with lands and waters which will “create a new sense of ownership for Northerners.” 

There are also lands claims with the Aboriginal governments in the Deh Cho (Big River) region. Deh Cho is the Aboriginal name for the Mackenzie River. An Aboriginal Steering Committee (ASC) played a key role in the development process and in the shaping of the final strategy.

Then there are the trans-boundary negotiations that need to occur with respect to upstream resource development activities in B.C. and Alberta. The NWT would like binding agreements with those provinces that will recognize the values and principles of the NWT strategy.

An action plan to implement the strategy with a corresponding budget will be required to ensure that “all competitive interests are given equal weight and fair consideration.”

The balancing of these complex issues and interests in the NWT through this proactive approach to natural resource development and protection is like a breath of fresh air…The NWT Water Stewardship Strategy indicates the caliber of leadership, both current and former, that is required to have a vision for the future that provides hope to the present and future generations that the life-giving waters of the Deh Cho will continue to flow.

Former Premier of GNWT, Stephen Kakfwi says that we have to change our ways of thinking on a global scale, “Surely we are coming to a time where we have to agree to protect water as we are the ones who have to drink it. It’s finite! We have to work together in a way that the world can sustain itself. Water has always been central, inseparable from the land, animals and humans. It is your soul!” Kakfwi continues, “The Dehcho is our life and we need to protect it. We are fighting for our lives and we need to let everybody know how important it is….”

The development of the NWT Water Stewardship Strategy should serve as a model of water-source protection on a national and international scale. Claiming ownership to water should not mean that we have a right to contaminate but to keep it as pure as possible even in its altered state. If we continue to go with the flow we will eventually end up on dry ground… or we can support and implement a strategy that will hold water.

We cannot continue to deliberately forget who, by command, brought the earth up from water and surrounded it with water so that all creation can take the water of life freely….

Let us hope that this wonderful opportunity in the Northwest Territories becomes the living legacy we can all aspire too.

Closer to home on the sacred living lands throughout Noopemig in the Far North, the voices of the land continue to echo as they wait patiently… waiting for the implementation of an agreement committed to last “as long as the rivers flow.”

Two Bills - What are the benefits?

Approximately eleven (11) months after Bill 173- the Mining Amendment Act, 2009 received Royal Assent on October 28, 2009, Bill 191-the Far North Act, 2010 went into third (3^rd) reading in the Ontario legislature on September 23, 2010, amidst continued opposition from First Nations with the support of the Northern Ontario Chamber of Commerce and other organizations living and operating in the Far North.

Despite the opposition, Minister of Natural Resources, Linda Jeffrey framed the passing of the legislation this way: “Together, we are entering a new era of social prosperity, economic certainty and environmental protection in the Far North.”

The Far North Act – has as one of its objectives: “The protection of areas of cultural value in the Far North and the protection of ecological systems in the Far North by including at least 225,000 square kilometers of the Far North in an interconnected network of protected areas to be designated in community based land use plans (Section 6)”.  The Far North is approximately 42% of the land mass in Ontario. The purpose of the Act is to “provide for community-based land use planning in the Far North.”

Under Bill 173- the Mining Amendment Act, 2009, Minister of Northern Development, Mines and Forestry, Michael Gravelle has stated that his ministry will consult on the development of the regulations and policies dealing with Aboriginal consultation throughout the mining sequence, including the criteria and the process for withdrawing sites of aboriginal significance; exploration plans and permits, including terms, conditions and requirements for early exploration; clarifying the existing consultation process for closure plans for advanced exploration and mine development projects; and a dispute resolution process for Aboriginal-related mining issues.

Currently there are consultations for regulatory development in the following eight (8) key areas:

1) Prospectors Awareness Program

2) On-line Staking

3) Exploration Plans and Permits

4) Assessment Work

5) Protection of Sites of Aboriginal Cultural Significance;

6) Aboriginal Consultation

7) Dispute Resolution

8) Private Surface Rights.

It is expected that the different sections of the Act will be proclaimed and come into force as they are developed.

Minister Gravelle has referred to Bill 173 as a “balanced piece of legislation” resulting from “comprehensive consultation,” and says that, “Bill 173 is aimed at bringing our mining legislation into harmony with the values of today’s society while, at the same time, promoting strong, vibrant and competitive minerals industry.”

Under Section 2, it states that the purpose of the new Mining Act is, “to encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult and to minimize the impact of these activities on public health and safety and the environment.”

What does this mean and how does it benefit communities in the Far North?

Below my blog will look at several of the sections in each Act. I highlight sections that may be of interest to people in Noopemig. Further, it is up to each person and community to decide for themselves and weigh the utility of the mechanisms described in each law. I believe each person or community must decide for themselves if they wish to use the mechanisms outlined to achieve their own goals on their lands in Noopemig.

This is what the Mining Act now says about Aboriginal Dispute Resolution and the Withdrawal of lands from staking:

Aboriginal Consultation\Dispute Resolution

The Mining Act says that consultation may occur after a person has submitted an exploration plan, in accordance with any prescribed requirements, “including any Aboriginal consultation that may be prescribed.” This person will have had “applied for and been issued an exploration permit,” from the Director of Exploration, who may be appointed by the Minister from the officers and employees of the Ministry.

This Director shall consider under S. 78.3 (2) (b), “Whether Aboriginal consultation has occurred in accordance with prescribed requirements, which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration.”

Bill 173 says that “a dispute resolution process is established for disputes relating to Aboriginal consultation occurring under the Act.” The dispute resolution clause for Aboriginal consultation says that “the Minister can designate one or more individuals, or a body, “to hear and consider disputes….relating to consultation with Aboriginal or treaty rights or to the assertion of Aboriginal or treaty rights, including disputes that may occur.”

Once a report and recommendations are made by the designated body to the Minister, the dispute resolution outlines the Minister’s powers dealing with Aboriginal consultation in the permitting, advanced exploration and the mine production stage in the following manner. The Minister may,

a)      confirm, vary or rescind a Director’s decision in respect of an exploration permit issued under 78.3 exploration permit;

b)      provide such further direction or support as he or she considers a appropriate respecting any consultation undertaken for the purposes of advanced  exploration and mine production stage; or

c)      take any actions that he or she considers appropriate in the circumstances.

When combined with the provision that says there can be no activities during a dispute section 78.2 (7), Ontario and communities now have more tools available to them so that conflicts can’t be further inflamed or provoked during a dispute. It is also very important for communities to know that under this law, exploration permits can be rescinded. It is no longer a foregone conclusion that all exploration must go forward. This also means we now have more checks and balances on exploration than prior to this law.

Protection of Sites of Aboriginal Cultural Significance (Withdrawal of Lands)

Provisions for withdrawing lands that “meet the prescribed criteria as a site of Aboriginal cultural significance,” can be done under the authority of the Minister, who can order lands be withdrawn from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown.”

Section 35 (1) reads:

The Minister may, by order signed by him or her, withdraw from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown, and the lands, mining or surface rights shall remain withdrawn until reopened by the Minister.

Factors to consider:

(2) In making an order under subsection (1) the Minister may consider any factors that he or she considers appropriate including,

(a)    Whether the lands, mining rights or surface rights are required for developing or operating public highways, renewable energy projects or power transmission lines or for another use that would benefit the public, whether the order would be consistent with any prescribed land use designation that may be made with respect to the Far North and whether the lands meet the prescribed criteria as a site of Aboriginal cultural significance; and

(b)   any other factor that may be prescribed.

Pre-existing rights and tenure

(3) A withdrawal order issued under subsection (1) does not affect pre-existing mining rights and tenure such as mining claims, mining leases or licenses of occupation.

No mining claims may be staked or recorded on any land, “that is located in the Far North, if a community-based land use plan has designated the lands for a use inconsistent with mineral exploration and development.” It will be interesting to see how this will play out for communities in and around the Ring of Fire. The only way for controversial claims to be cancelled is if companies voluntarily let them lapse. It will also be interesting to see how the province defines Aboriginal cultural significance. This seems like an area First Nations should naturally lead.

The Mining Act - Part XIV- Far North says that “The validity of any mining claims,

mining leases, patents, and licenses of occupation for mining purposes located in the

Far North and any related approvals for mineral exploration and development activity

shall not be affected by a community based land use plan or any amendment to such a

plan that is inconsistent with mining purposes, if the consistent designation was made

after the mining claims, mining leases, patents, and licenses of occupation for mining

purposes or the related approvals for mineral explorations and development activities

were issued.”

The active mineral exploration projects in Northwestern Ontario and the 8000+ claims made by the mineral exploration companies are grandfathered as a result and will not be impacted by withdrawal orders or community-based land use plans. This is why it is critically important that if communities know where sensitive lands are now and where they wouldn’t want mining or exploration that they withdraw lands from staking. This is one tool they can use to secure those lands. It hasn’t been used a lot in the last few years in the Far North but it is a tool communities could consider to secure their lands now.  

This brings us to Bill 191- Far North Act, which received royal assent on October 25, 2010.

Bill 191-the Far North Act, 2010

The purpose of the Far North Act is “to provide for community based land use planning in the Far North that directly involves First Nations in a “joint-planning process” with Ontario, that “supports the environmental, social, and economic objectives for land use planning for the peoples of Ontario set out in Section 6; and (c) is done in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights of section 35 of the Constitution Act, 1982, including the duty to consult.”

A “community-based land use plan” means a land-use plan that has been prepared under Section nine (9) and approved by that section;

Section 5 states the following objectives:

1)      A significant role for First Nations in the planning.

2)      The protection of areas of cultural value in the Far North and the protection of ecological systems in the Far North by including at least 225,000 square kilometers of the Far North in an interconnected network of protected areas designated in community based land use plans.

3)      The maintenance of biological diversity, ecological processes and ecological functions, including the storage and sequestration of carbon in the Far North.

4)      Enabling sustainable economic development that benefits the First Nations.

Section 9 (1) states:

If one or more First Nations having one or more reserves in the Far North indicate to the Minister their interest in initiating the planning process, the Minister shall work with them to prepare terms of reference to guide the designation of an area in the Far North as a planning area and the preparation of a land use plan for the purpose of this section.”

The community-based land use planning is to be led by the First Nations working with Ontario through their expression of interest to the Minister to initiate the planning process. Once that interest has been expressed by the First Nations, the Minister will work with them in a joint planning process under a joint-planning team, with equal representation of First Nations and Province to advise on land-use planning, who will develop the terms of reference that will address shared-goals and interests through a consensus-based, cross-cultural dialogue.

Bill 191 provides First Nations “through community-based land-use planning an opportunity to decide which lands in the Far North will be protected and which lands will be open for sustainable development.”

A “protected area” means an area of land that is designated as such by a land-use plan under clause 9 (9) (c) if the plan is approved as a community-based land use plan.

9 (9) (c) states: A land use plan prepared under subsection 6 shall,

(c) designate one or more areas in the planning area as protected areas;

The plan requires joint-approval from the Minister and the First Nation and it is the “first time in Ontario’s history that there is a requirement under law for First Nations approval of a land-use plan.”

Clause 9 (14) (a) (b) says – A land use plan under subsection 6 has no effect until,

(a)    the Minister, by order, approves the parts of the plan that subsection (9) requires be included in the plan; and

(b)   the council of each of the First Nations mentioned in subsection (6) passes a resolution approving a plan.

Section 6 reads:

First Nations may contribute their traditional knowledge and perspective on protection and conservation for the purposes of land use planning under this Act.

The Far North Act, 2010 “provides for orderly development in the Far North,” where “most major developments would require that a community-based land use plan be in place, with some exceptions.” Bill 191 also provides “provisional protection prior to a community-based land-use plan being in based on criteria to be prescribed by regulation.”

In many parts of Noopemig, such as in the Ring of Fire, claims have been staked already without land-use plans being in place. These claims will have been grandfathered and would not be impacted by the community-based land use planning process.  The provisional protection mechanisms outlined in the Far North could provide an additional mechanism for First Nations (on lands without mineral tenure) looking to use provincial laws to protect their lands now.

Another government initiative is the proposed Northern Growth Plan which will strengthen the northern economy. One of the key actions identified in the 25 year plan is

“building a new relationship with Aboriginal People to increase participation in the future economic growth of Northern Ontario and achieve better health status for Aboriginal communities.”

The Far North Act and the Northern Growth Plan (under the Places to Grow Act, 2005) would work together and if there is a conflict, the Far North Land Use Strategy and the Community-Based Land Use Plans would prevail.

There is also a provision in the Far North Act that would enable the creation of a joint body to oversee implementation of the whole land use planning initiative. The functions of this joint body would include: advising on allocation of funding to support First Nations working with Ontario on land use planning, and appropriate dispute resolution processes for land use planning matters.  These are important matters and given the level of frustration among First Nations for the current way funds are being handed out, this may just be a better, more transparent process if communities wish it to be implemented. It is modeled on initiatives from other parts of Canada that have worked in cooperation with First Nations such as in the Northwest Territories and Yukon.

While not perfect, these are some of the tools available to communities if they wish to take advantage of them to achieve their own goals.  The decision is up to them.

As the snow flies and blankets Noopemig, the sacred living lands continue their endless seasonal cycle, seemingly oblivious to these new efforts to provide a balance that only it can provide…. 

Consulting First Nations

It has been a couple of months since the last entry and a lot has happened and not happened throughout Noopemig. The last entry reported that a Ring of Fire Coordinator was to be appointed who is to find the right balance between development and conservation. This has not happened yet.

A share of the revenue was committed to when the now defunct Northern Table was first announced on March 2006. The Minister of the day announced at that time that if the Nishnawbe Aski Nation (NAN) chiefs allowed development to continue, they would be entitled to a “piece of the pie.”  Subsequently, a down payment was announced during the introduction of Bill 173: The Mining Act, on April 2009, but has yet to materialize. When introducing the Mining Act, the Minister of Northern Development, Mines and Forestry (MNDMF), Michael Gravelle referenced “other government initiatives such as the Far North Planning and the $30 million set aside for Resource Benefit Sharing.”

These types of announcements seem designed to give the appearance that something is actually being done yet offer nothing substantive to the First Nations who are still waiting for any type of benefit from development activities.

Then there are stakeholder and aboriginal community workshops currently being undertaken until July 2010 to develop the Mining Act regulations so that the “different sections of the amended Act will be proclaimed in force as relevant details are developed.” These regulatory development workshops seem to include stakeholders when the law only requires that the duty to consult arises “when the Crown has some knowledge of the existence of an aboriginal right to title and contemplates conduct that may adversely affect it.” It has also said that the duty to consult arises, “if the conduct might adversely affect aboriginal rights to land covered under treaty.”

In the Mikisew Cree decision of 2005, the Supreme Court said, “It is not consistent with the honour of the Crown, in its capacity as fiduciary, for it to fail to consult with a First Nation prior to making a decision that infringes on constitutionally protected rights.” 

Recently in British Columbia, (B.C.) the West Moberly First Nation (West Moberly) filed for a judicial review of two exploratory mining permits and one forestry licence issued by the province for a tract of land preferred by West Moberly within their Treaty territory which happens to be a critical habitat for threatened woodland caribou. The First Nation asserted that Treaty # 8 protects its harvesting rights, traditionally practiced each season and that caribou are an essential part of the harvest.

West Moberly signed Treaty # 8 in 1899, providing harvesting rights from hunting, fishing, trapping, which are recognized and affirmed in section 35 (1) of the Constitution Act, 1982. Justin Duncan, a lawyer from Ecojustice provides us with some perspective on the West Moberly case:

“Most interesting from my perspective is the West Moberly reliance on the fact that caribou is listed as threatened in the federal Species at Risk Act. They used this fact that their Aboriginal interest had not been adequately accommodated before a mine received approvals. Additionally, the specific population of caribou at issue was down to eleven (11) individuals suggesting that any additional impacts could wipe out that specific herd of caribou permanently. Despite these facts, the B.C. government had failed to adequately consult West Moberly First Nation as to how to accommodate their interests.

In the long term, I suspect government failure to adequately protect and recover species at risk upon which Aboriginal Peoples rely to exercise their rights will arise more often. Clearly to exercise an Aboriginal right which relates to natural resources, these resources must exist and not be degraded by successive industrial disturbance. One only need to look at the Ring of Fire development and speculate that it will likely have impacts on caribou in the region where First Nations harvest the species. I wonder what conflicts will arise there as a result?” 

I had the opportunity to attend the exploration camp at Koper Lake in the Ring of Fire recently. While the company was very accommodating once we got there, the night before sort of became a logistical nightmare which fortunately was settled making our trip to the site possible.

Once our tour of the exploration camp, where the blockades had been set up a few months earlier, was finished, Chief Eli Moonias took us to Fishtrap Lake where a few months earlier he had found fiber-glass rods with metal tags stuck into the ground in what is believed to be a burial site. Close to the brush-cleared area where the rods with the metal tags were stuck in the ground stood a tall poplar tree with an eagle’s nest which had bright red surveying tape tied directly to the nest. It appeared that an attempt to cut down a similar size poplar tree to knock down the nest had failed. The red ties to the nest appear to have been made to ensure that the eagle does not come back so that the brush-clearing could continue.

While the new Mining Act outlines the purpose of Bill 173 as “to encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and Treaty rights in section 35 of the Canadian Constitution Act, 1982 including the duty to consult and to minimize the impact of these activities on public health and safety and the environment,” Chief Moonias has still to hear from someone who can meaningfully implement this section of the Mining Act. 

In the West Moberly case, Justice Williamson found that “the Crown did not meaningfully consult or accommodate West Moberly’s Treaty right to hunt caribou in making its decision to issue the mining and timber permits. He suspended the advanced exploration permit and accompanying licence to cut for a period of 90 days, ordering that the Crown in consultation with West Moberly expeditiously implement a reasonable, active program for the protection and augmentation of the Burnt Pine herd.

He determined that the Crown’s consultation was not sufficiently meaningful and the accommodation was not reasonable in the circumstances.”

In this part of Noopemig, there is also the 2nd reading of Bill 191: The Far North Act this past June 2010,  a year after it was first introduced in June 2009. The Far North Act, if it is passed in the provincial legislature, states as its purpose: “to provide for community based land use planning in the Far North that directly involves First Nations in the planning and that supports the environmental, social, and economic objectives for the people of Ontario.” The next entry will look at what the First Peoples are saying throughout Noopemig as they continue to contend with a process which does not seem to hear the voices rising out from Noopemig - the mighty Boreal Forest.

Ring of Fire

“And it burns, burns, burns, the ring of fire, the ring of fire!”

No, this entry is not about the song made famous by the “Man in Black” about the pain of being in love but the very mention of the Ring of Fire has the potential to ignite a heightened degree of passion from mining exploration companies and the First Peoples who live in the region.

The Ring of Fire situated approximately 500 kilometers northeast of Thunder Bay in the swampy muskeg, chromite-rich traditional territories of Marten Falls and Webequie First Nations, saw ice landing strips used by mining companies being blocked this past January. The blockade has since been lifted in what has been so far, an uneasy 6 month truce, where the province and the companies are to work with the First Nations to begin to address their concerns.

Uneasy because already there was an incident which has the potential to unravel any goodwill that existed between the community of Marten Falls and the company KWG Resources Inc. Chief Eli Moonias of Marten Falls recently came upon a situation on his trapline where he felt violated. He found an area which had been clear-cut with orange and red markings and fibre-glass rods with silver tags stuck into burial sites. This comes at a time when the relationship between Marten Falls and the company is already on shaky ground. The fibre-glass rods with the silver tags are markers for soil samples taken to determine whether it is feasible to build a railway to a potential mine site.

KWG spokesperson Frank Smeenk has apologized on behalf of the contractor for the “archeological burial ground that was unwittingly disturbed.”  Although the company didn’t claim responsibility, Mr. Smeenk had this to say: “The Ring of Fire development is of historic and international significance” and “I think the interests of the other 11 or 12 million Ontario taxpaying residents need to be weighed in these circumstances.”

In the March 2010 budget, Ontario announced the “Open Ontario North Strategy” that identified $45 million over 3 years for a new skills training program so that Aboriginal Peoples and northern Ontarians can benefit from jobs in the Ring of Fire region. The budget announcement also proposed to appoint a Ring of Fire Coordinator to champion “the creation of Ontario jobs and more economic activity that will support northern families while protecting the northern boreal-forest region.” Ontario has stated that they plan to address the economic, social and environmental concerns of the region with the intent of “getting it right!”

By all appearances, there seems to continue to be a gap between how “getting it right” rolls out in practice and how it is experienced on the ground. While all the details have yet to emerge on this latest incident, the mad rush to stake and explore appears to have over-looked the archeological and burial sites of Marten Falls which could have been easily identified in a land-use planning process, had it occurred according to the Premier’s vision that there be no new mines without a land use plan.

While the mine may be 5-7 years away, the claims that are being staked in the Ring of Fire will not be subject to a land-use plan and the claims will continue to be honoured, leaving communities like Marten Falls and Webequie with very little recourse, if any, to have a say in what happens in their territory.

Although there is a full commitment from Ontario to work with Aboriginal Peoples and northern Ontarians to build on the Ring of Fire’s potential, that has yet to be experienced by the impacted communities at the company level. While Ontario seems to be focusing on the Ring of Fire as a way out of the global recession for communities and families in the north, Mr. Smeenk on the other hand, through his statement seems to be advocating the status quo and presuming his actions are justified and consistent with the interests of 11 or 12 million Ontarians (!).  

While the project may be perceived as an exciting opportunity for Ontario, it needs to be done right. Until it is, it will be hard for anyone to make the case that these continued conflicts are in the public interest.

The Ring of Fire Coordinator, once appointed, will have his\her hands full trying to find the right balance between development and conservation, including the interests of the communities on whose traditional lands this activity is occurring.

As one person’s reworking of the lyrics to the ring of fire shows, there is much division and misunderstanding out there. The reworked lyrics carried to the tune of the Ring of Fire go like this:

Politics is a dirty thing,

Toronto-based decisions sting.

Bound by wild desire,

The North has a Ring of Fire.

The North it burns to work its Ring of Fire.

But way down, down, south,

The hippies don’t admire,

The North’s right to work.

The Ring of Fire, The Ring of Fire.

While the music plays, the flames lick and lap the ground in the Ring of Fire that it will take one blow to fan the flame that can scorch the earth as we head into a long, dry and hot summer in Noopemig.

Free, Prior and Informed Consent (FPIC)

On December 17, 2009, Premier Dalton McGuinty wrote a letter to Prime Minister Stephen Harper asking that “the Government of Canada reconsider its position in response to the United Nations’ Declaration on the Rights of Indigenous Peoples.(UNDRIP)”

In September of 2007, Canada, New Zealand, Australia and the United States voted against UNDRIP while 143 state governments adopted the declaration. Australia has since reversed its position and  New Zealand and the United States are “reconsidering” their positions leaving Canada, who as a member of the United Nations Human Rights Council, continues to oppose UNDRIP.

Premier McGuinty’s letter states: “Canada is the only non-signatory that has yet to reconsider its position on the declaration. Earlier this year, Australia reversed its position and endorsed the declaration. We understand that New Zealand and the United States are also currently reconsidering their positions. In light of these developments, Ontario feels that it is time for Canada to revisit its position.”

Premier McGuinty continues, “My request is that your government undertakes a conscientious review of Canada’s position on the declaration, within the context of Canada’s constitutional and treaty framework and related jurisprudence. I can assure you that the Ontario government will co-operate fully in any such exploration.”

Premier McGuinty is to be commended for his efforts at true statesmanship. Doing away with the colonial mentality will be a daunting task for any leader who is sincere in creating a truly just society. This is especially true with the First Peoples being viewed as having given up all their rights to lands and resources through the treaty making process and that belief being so deeply engrained in a majority of the support network of the Premier’s Office.

Recently, when Kitchenuhmaykoosib Inninuwug refused to provide their consent to a motion, a member of the provincial legal team in charge of the file accidentally emailed this “pearl of wisdom” to the object of his derision, in this case, the KI legal counsel. Since KI wouldn’t provide consent, he wrote, “very strange. My impression is that, apart from being unpredictable, he does not appreciate the nuances and has little control over his clients.”

I say daunting because of this glimpse on the mentality of a representative of the provincial Crown, viewing KI as needing to be controlled instead of recognized as being able to provide direction to their legal counsel. Premier McGuinty is courageous indeed, asking the Government of Canada, a government, who recently denied on the world-stage that “colonialism exists in Canada,” to reconsider the UN declaration that recognizes the land and resource rights of Indigenous Peoples contained in its articles.

UNDRIP Article 26 reads:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
   
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
   
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

It also addresses compensation for lands and resources taken without the indigenous peoples free, prior and informed consent in Article 28 which reads:

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
   
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, sizeand legal status or of monetary compensation or other appropriate redress.

It has always been the position of Kitchenuhmaykoosib Inninuwug that “they must give their free, prior and informed consent to any development on or impacting KI territories and that they must receive fair and equitable remuneration for the resources removed from and the profits drawn from their traditional territories.”

In recent developments, it is an outside company walking away with millions leaving the community of Kitchenuhmaykoosib Inninuwug to pick up the pieces and the costs from the aftermath of a four (4) year battle. This would be the appropriate area and time to “undertake a conscientious review” and to begin to implement Article 28, with or without the federal government.

Premier McGuinty has already begun to walk the talk with the explicit recognition of Aboriginal and treaty rights in the Mining Act. However, the KI situation begs for immediate action to “achieve a transformative reality for Aboriginal peoples,” that Premier McGuinty references in his letter to the Prime Minister.  

UNDRIP Article 32.2 reads:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands and territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

32.3 follows:

States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

According to the United Nations, international law defines free, prior and informed consent, this way:

Free is the absence of coercion and outside pressure, including monetary inducements (unless they are mutually agreed to as part of a settlement process), and “divide and conquer” tactics. It includes the absence of any threats or implied retaliation if the result of the decision is to say “no.”

Prior is having sufficient time to allow information-gathering and full discussion, including translations into traditional languages, before a project starts. It must take place without time pressure or constraints. A plan must not begin before this process is fully completed and an agreement is reached.

Informed is having all the relevant information available reflecting all views and positions. This includes the input of traditional elders, spiritual leaders, subsistence practitioners and traditional knowledge holders, with adequate time and resources to consider impartial and balanced information about potential risks and benefits, based on the “precautionary principle” regarding potential threats to health, environment or traditional means of subsistence.

Consent is the demonstration of clear and compelling agreement, using a mechanism to reach agreement which is in itself agreed to under the principle of FPIC, in keeping with the decision-making structures of the Indigenous Peoples in question, including traditional consensus procedures. Agreements must be reached with the full participation of authorized leaders, representatives or decision-making institutions as decided by the Indigenous Peoples themselves.

  

Article 19 reads:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

While Bill 173, An Act to amend the Mining Act, which received Royal Assent in October 2009, does not contain in its current form, the Supreme Court jurisprudence of accommodation nor the UNDRIP international standard of free, prior and informed consent,  the challenge will be whether any of UNDRIP will be reflected in the regulations and policies that will be developed in consultation with stakeholders.

Another piece of legislation, Bill 191, the Far North Act, which seeks to set aside 225,000 sq. kms of protected areas in the far north has been ordered for 2^nd reading. Upon its introduction, the Far North Act received opposition from indigenous and non-indigenous alike. Several environmental groups felt that the draft legislation didn’t adequately reflect the Premier’s vision. We will have to wait and see whether any of the principles of UNDRIP will be reflected in Bill 191.  

For this potential ray of hope for the First Peoples of Ontario, one can only applaud and support Premier McGuinty and wish him the best of luck as he embarks on this monumental undertaking. Asking Canada to revisit its opposition is not only the right thing to do, not only because it has the support of a majority of the international community but because justice demands it!

The clanging rings through out Noopemig as the First Peoples continue to storm the gates of justice…