Friday, March 22, 2013

The Global Rallying Cry from Capulálpam

Recently, I attended the Gathering of Mesoamerican Peoples where I heard this,
 “Faced with the threat that the mining industry represents in Mesoamerica, we call out to the peoples and communities of Honduras, Guatemala, El Salvador, Puerto Rico, Argentina, Canada and Mexico to strengthen our networks of resistance and to build broad alliances based on our knowledge, within which the defense of territory forms the basis of our connections.”

Declaration from the Gathering of Mesoamerican Peoples: “Yes to life, No to Mining” January 17-20, 2013 – Capulálpam de Méndez, Oaxaca, México

“Today Capulálpam finds itself in a constant struggle against mining operations. It is not that we are against progress,” Municipal President Juan Perez Santiago told the four hundred to five hundred-strong people as he opened the conference. “We are against irreversible consequences that this type of activity leaves behind. After many years of mining activities, we’ve lost thirteen (13) different water sources, contamination of the rivers, we’ve lost the fish. A lot of the waters sources have been contaminated by toxic materials. Today we are saying NO to mining because our environment is in need of our protection. We need generations who are not at risk of suffering the decisions made by the previous generations.”

Capulálpam and several surrounding communities have chosen to confront the many decades of tunnel mining which has negatively impacted their central river and contaminated close to 50 % of their artesian springs and aquifers that sustain the life of the communities.  While the community-unified mining alliance successfully forced the Mexican government to address the toxic run-off and the stream degradation through the Federal Environmental Commission suspending the rights of the concession-holder, these suspensions are not always permanent.

Capulálpam is concerned that recent gold discoveries under its remaining springs will destroy their last source of pure water. Municipal President Santiago says, “The most important aquifer that maintains our community is at risk. This is the aquifer that sustains life throughout this watershed. It provides life to the watershed of Capulálpam.” 

Up to the 1990’s, the mining industry was limited for foreign private interests until the Mexican government introduced the National Mining Modernization plan. This released 1.8 million hectares of mining concessions previously held by the Mexican government. Along with reforms to Article 27, which sets out the legislative frameworks for mining under the Mexican Constitution, existing communal lands could now be leased or sold for resource exploitation, “reversing the right of Mexican citizens to the communally-administered natural resources necessary to sustain life.”

When the North American Free Trade Agreement (NAFTA) was signed by Canada, Mexico and the United States and came into force on January 1, 1994, two (2) years after its implementation, the process for mining concessions had been streamlined and foreign ownership limits lifted in Mexico, bringing a huge increase to the number of concessions being granted.

Exploration concessions are valid for six (6) years and if a concessionaire wishes to go into production before the expiration of the 6 years, they may request an exploitation concession, which is valid for 50 years and can be renewed once for the same amount of time. Thirty percent (30%) of the national territory has been sold in blocks of fifty (50) year mining concessions by the Mexican government, mostly to Canadian corporations. During the Capulálpam conference, there were stories of intimidation, assassinations and environmental degradation perpetuated by the mining industry throughout Mesoamerica.

There are lessons to be learned for us as we discuss and contemplate mining development. Here in Canada, legislation has also been passed under Omnibus Bills C-38 and C-45 without consultation, limited debate, if any, and limited time for review, changing over one (1) hundred different pieces of legislation and regulations that will have significant impacts to the environment and Aboriginal and Treaty rights. They also change the public’s rights.

Approximately 99% of the lakes and rivers have lost their protection for navigation and environmental assessment meaning 32,000 rivers and 2.25 million rivers and could be vulnerable to industrial impacts and development.  Many of these waterways include lakes, streams and rivers that have and continue to sustain the indigenous way of life.

Last April 2012, the federal government announced natural resource projects will be moved to “one project, one review” policy with “fixed timelines”  for major economic projects where Environmental Assessments (EA) are being “fast-tracked and streamlined.”

Aside from being rushed through the Canadian Parliament as an add on to an Omnibus Bill, getting the free, prior, and informed consent of the Indigenous Peoples recognized under Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to which Canada reluctantly signed under world-wide global pressure, did not occur.

UNDRIP Article 19  says that, “States shall consult and cooperate in good faith with the Indigenous Peoples concerned…in order to obtain their free, prior and informed consent  before adopting and implementing legislative or administrative measures that may affect them.”  [Emphasis added]

While Canada considers the United Nations Declaration on the Rights of Indigenous Peoples “non-binding” and nothing more than an “aspirational document,” it purports to uphold the “rule of law” while ignoring many legal rulings by the Supreme Court of Canada, such as this one triggering the Crown’s duty to consult:

“The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the ‘duty arises when the Crown has knowledge, real or constructive, of the potential existence’ of the Aboriginal right to title and contemplates conduct that might adversely affect it.” There are a lot of outstanding lands claims dealing with land by Indigenous Peoples.

This Supreme Court of Canada obligation for consultation and accommodation was never properly discharged to the peoples to whom it is owed regarding Bills C-38 and C-45.

When the Crown in Right of Ontario attempted to allow mineral exploration projects to proceed in Kitchenuhmaykoosib Inninuwug (KI) without properly consulting the community, the Ontario Superior Court stopped the project saying that, “allowing the project to continue without consultation was a violation of Treaty # 9. The objective of the consultation process is to foster negotiated settlements and avoid litigation. For this process to have any real meaning it must occur before any activity begins and not afterwards or at a stage where it is rendered meaningless.” (Para 89)

Kitchenuhmaykoosib Inninuwug was the site of the signing to the adhesion to Treaty # 9 on July 5, 1929 of which KI is an original signatory. KI viewed the signing as developing a new relationship with His Majesty and His Subjects as equal partners not a mass land surrender as reflected in the treaty text. KI elders tell us that they agreed to share the land and its benefits. They did not entertain nor subscribe to engaging in a legal fiction to sign away land and resources which have been handed down through generations or to knowingly sell their birthright.

KI continues to ask for the law pertaining to its rights be respected and the land issues be resolved in a fair and just manner. Meanwhile it has had to insist that the rule of law pertaining to its rights be followed, pressuring the Ontario government who ended up having to pay out 2 mining/exploration companies and forcing Ontario to unilaterally withdraw land from prospecting and mining claim staking in KI territory, similar to what Capulálpam had to do to get the Mexican government to address the environmental degradation brought on by decades of mining in their territory. The site where KI asked the last exploration company to leave was an old mining site which has never been rehabilitated and its environmental and health impacts undetermined.

The federal government Bills C-38 and C-45 remove many protections for water, fish and the environment seemingly to push development at all costs while attempting to discredit and silence the voices who speak out as “radical” that “ threaten to hijack our regulatory system to achieve their radical ideological agenda.”

Throughout the globe and here in Canada, legislation is being enacted by governments to enable resource-hungry companies to exploit the natural resources at all costs. These resources are often located on the homelands of the Indigenous Peoples who are currently harvesting the abundance and surviving from the lands into which they were born.

The United Nations Declaration on the Rights of Indigenous Peoples Article 32 says that, “States shall consult and cooperate in good faith with the Indigenous Peoples concerned…in order to obtain their free, prior and informed consent prior to the approval of any project affecting their land or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” [Emphasis added].

The Indigenous Peoples of Mesoamerica, including KI are taking similar stands “in defense of life, our sacred spaces, our forests, rivers, hills, sources of water and our children,” and are reaching out to people globally to support, ““A change in the economic and political development model that currently permits the looting of territories as well as a change in the authoritarian, colonial, military and patriarchal structure of governance. Respect for the decisions of peoples should be a fundamental part of the new relationship with nation-states. This means exercising the right to self-determination of Indigenous, campesino and rural peoples.”

Municipal President Santiago speaking from experience spoke eloquently against unbridled development and unsustainable mining practices: “We say No to mining because with mining we are exchanging life for death, life for destruction, the life that we see in our mountains and our forests. We want to make sure that the community of Capulálpam and all of the communities present here are supported in their struggle against mining.”

Here in Canada, legislation has been enacted to expedite resource extraction while provincial and federal governments make deals with companies in other countries for the untapped resources often located on indigenous homelands like the Ring of Fire in Northern Ontario. These deals are being made on the premise that there is unfettered access to the territories which are lined with outstanding legal obligations through treaties and other constitutional mandates. At the same time, credible science offered by various environmental groups have fallen on deaf ears. Globally, the call of Capulálpam for building alliances and building the network of resistance echoes into Canada aligning with the cry – when injustice becomes law, resistance is the outcome.   

Friday, May 11, 2012

KI Water Declaration

As the days get warmer and longer, the water flows powerfully, free once again from the glittering snow-covered landscape that have contained it to a mere gurgle and trickle under the thin ice cover during the past winter months in Noopemig and elsewhere, where nature is allowed to run freely as it is meant to be. While having had to compensate a few times after thawing from a mild winter, Noopemig and its waters provide what it does best – new life and freedom as it wakes up to share all its majesty and glory.

While a mild winter struggled to compensate for the impacts of progress attributed to climate change, the economic engine continues to chug along its way into the Far North where the First Peoples who live on and off the land continue to call for a say into activities that could have a drastic impact on their lives, culture and traditional lands.

Before 2011 ended, the Wildlands League suggested that “It is time for a fundamental re-think of the relationship between major industrial players in the North, our governments and affected First Nations communities.” This was based on what was happening in Attawapiskat where community members were living in tent frames in the freezing temperatures of a northern winter while a diamond mine extracts minerals and generates millions from Attawapiskat’s traditional territory.

In early 2012, federal Natural Resources Minister, Joe Oliver stated that environmental and other “radical groups” were trying to undermine the Canadian economy by blocking trade saying the groups “threaten to hijack our regulatory system to achieve their radical ideological agenda,” to delay or kill good projects.

On April 17, 2012, the Harper government announced that they will recognize provincial reviews providing they meet the requirements of the Canadian Environmental Assessment Act as environmental projects are moved to a “one project, one review” policy with “fixed timelines” for major economic projects.

Minister Oliver says that both levels of government do not have the resources to do “separate reviews of the same project.” The First Peoples sees the federal streamlining of the environmental review process as the latest effort to undermine First Nations rights when it comes to industrial development on their traditional lands. Minister Oliver stated, “We need to tap into the tremendous appetite for resources in the world’s dynamic emerging economies – resources we have in abundance.”

Upon announcing a moratorium on KI lands in 2001, KI stated, “Our resources have been taken from us and we have not benefited from what has been extracted from our land to be sold to the rest of the world…(economic development) must be done in a manner where our natural environment is not destroyed, and mitigation practices which are consistent with our beliefs and practices must be in place.”

On July 5, 2011, eighty-two years after the adhesion to Treaty # 9 was signed at Kitchenuhmaykoosib Inninuwug, (KI) the membership passed the KI Water Declaration, protecting the entire watershed from industrial development under KI authority, laws and protocols. This and another document received overwhelming support in a community referendum to become part of KI’s Indigenous laws.

These laws are based on Kanawayadan D’aaki, the ultimate law which binds Kitchenuhmaykoosib Inninuwug to the sacred duty and responsibility to protect and look after the land. This sacred duty is provided to Kitchenuhmaykoosib Inninuwug by Keeshaymanitou, the creator who placed KI on this chosen land.
The Watershed Declaration covers a vast 13,025 square kilometers of lakes, rivers, forests and wetlands in the KI Homeland, including the 661 square kilometer Kitchenuhmaykoosib Lake, which has a buffer zone around the lake which is excluded from all and any development.

Under the Declaration, all waters that flow in and out of Kitchenuhmaykoosib and all lands whose waters flow from those lakes, rivers and wetlands (the entire watershed) are deemed to be protected under KI authority.

Kitchenuhmaykoosib Inninuwug has protected the lands and waters in Kitchenuhmaykoosib Aaki before which resulted in the incarceration of a majority of it’s leadership, who serve two (2) months of a six (6) month sentence, but released upon appeal. The Court of Appeal ruled that “incarceration should be the last resort” and directed the Crown to negotiate in good faith to reconcile the Aboriginal interests with competing interests.

Specifically, the decision directed the Crown to consult, accommodate and negotiate in good faith in a serious attempt to resolve and reconcile Aboriginal interests with competing private interests whenever these interests collide.

Upon introducing reforms to the Mining Act, Premier Dalton McGuinty made the following statement – “The Ontario Government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.”

Leadership in Northern Ontario is now warning that expediting environmental scrutiny on major developments and “fast-tracking projects,” like the Ring Of Fire without recognizing the rights and interests of the First Peoples can only result in “direct confrontation on the ground.”

It appears that the stage has been set and the environment is ripe for accelerated industrial development with nothing more than a minimal or cursory glance at environmental processes that keep the lands and waters healthy for all.

Dr. David Suzuki on Science Matters says that “Eliminating environmental reviews altogether, shifting responsibility to the provinces, and severely cutting back on staff and agencies are not ways to make processes more efficient; they’re ways to accelerate major projects, making the short-term interests of industry a higher priority than protecting the air, land and water we all need to stay healthy.”

Kitchenuhmaykoosib Inninuwug has taken strong actions to protect Kitchenuhmaykoosib Aaki and will likely continue to do so. While KI are possibly lumped into the other “radical groups” category as defined by the Canadian government, KI is no stranger to being called names in the effort to justify access to lands and resources without any return or for the protection of the environment. If reports of RCMP surveillance are any indication, KI efforts to protect its position that “Water is the source of life and water connects all things in the sacred web of life” will continue to be challenging but with glowing hearts we’ll continue to see the rise of the True North strong and free!

As legislation and policy is prepared to pave the way for accelerated development by the Canadian government, Noopemig meanwhile continues to deliver life-giving nutrients by peacefully providing water to all life forms to ensure all life flourishes while the country continues to sing – God keep our land glorious and free!   

Monday, July 11, 2011

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.

Thursday, July 7, 2011

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.

Thursday, February 3, 2011

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.”

Monday, November 1, 2010

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 (3rd) 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….