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…. 

Monday, June 28, 2010

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.

Friday, April 23, 2010

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.

Tuesday, February 23, 2010

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 2nd 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…

Friday, January 22, 2010

Comments from you

This entry will look at some of the comments received on the various entries of Noopemig. Comments are always welcome and from time to time, we will be sharing your comments with others that follow this blog. Keep them coming as the issues are very important and often timely requiring serious thought and discussion.

To the Climate Day Speech entry, Canada Guy writes:

“Yes, we have overshot the carrying capacity of the planet. By drawing down ecological capital, instead of living off the return of that capital, short term growth can be accomplished at the cost of reducing future carrying capacity, with generally disastrous results.”

Dr. R.H. responds to Noopemig-A victory?

Ontario, and Canada will never listen to First Nations unless things are brought to the Crown in a particular manner. As you have discovered with Platinex, that manner is meaningful Consultation. Unfortunately, it is the Crown’s definition of meaningful consultation that matters (one-sided I know) but that definition has come a long way. When one takes the time to review Aboriginal, Common, and international law on meaningful consultation, a very simple process comes to light. I trust our work can be of some help to find a path to reconcile the KI’s rights with that of non-Aboriginal Canadians. It can be done so that both sides win!”

Northshorewoman says to Voices from the Northshore response:

“It seems that the language of government is carefully selected so that some ambiguity exists, albeit inching their way to be more respectful.”

C.R. comments on Disclosure?

“Why is there so much secrecy around agreements made that involve First Nations? Is it at the First Nations request that this occurs, or does industry and government not want to have it public and therefore scrutinized? Also, I expect that the secrecy also prevents any serious challenges for enforcement, if the terms of the agreement aren’t fulfilled. It also comes as no surprise that government and industry once more come to a First Nation with a ‘done deal’ all ready for them to agree to and sign on to…will this colonialism never end?”

It is horrifying that we have to fight our own government to save the environment. ~Ansel Adams

Northshorewoman on Disclosure?

“I am outraged that Platinex get $5million for ‘backing off.’ Imagine if that money was re-directed to KI –where it belongs. And that Platinex gets royalties on any future developments? Oh my. Seems they have powerful lawyers and lobby groups.

And the confidentiality part stipulated to KI and individual defendants is puzzling.

I find this troubling that our government thinks this is a good settlement!”

A.J. says on Disclosure?

“In residential schools they gagged the kids with kerosene-soaked rags, now they’ve developed legal ‘gag orders’ and demand you agree. Nothing has changed.”

On Mining Act receives Royal Assent:

“It sounds as if the ‘new Mining Act’ is the old mining act under a new title – more forked tongue speak!”

On Voices from the Northshore:

“It seems the government can’t remember ‘crown lands’ belong to the First Peoples. If you buy a car and fail to pay for it, it is repossessed. The government failed to pay and sufficient time has passed. The land by rights should revert to the First Peoples. Theft by false information has led to debt.”

C.R. talks Disclosure?

“I think there are some very strong connections between First Nations across Canada and among other Indigenous peoples around the world…and industry recognizes this…so preventing the sharing of information is really quite a good tactical maneuver on their part – a kind of divide and conquer approach…And, it has the potential to pit First Nation against First Nation to see who can get the better deal, rather than allowing folks to work together so all can benefit.(or reject proposals.)

Anonymous writes:

“Thanks for this thoughtful blog about the need for more open consultation in this and related matters. And congratulations to CPAWS for the appearance on BNN TV on January 21. As a small shareholder of a company with interests in the ‘Ring of Fire’ area, I support the line of thinking outlined in your blog and on the BNN appearance.”

Watch  Anna Baggio, Director, Conservation Land-Use Planning on the Commodities portion of the Business News Network commenting on the Ring of Fire through this link:

The voices from Noopemig continue through the Boreal Forest – is there anybody out there?

Monday, January 11, 2010


Happy New Year!

In last year’s final entry of Noopemig, Ontario and Platinex had come to an agreement without the involvement of Kitchenuhmaykoosib Inninuwug (KI) where Platinex would be paid $5 Million dollars, Mediation Costs and 2.5 %  Royalty on any mining that will occur within the next 25 years in the disputed zone at Nemeguisabins Lake in Kitchenuhmaykoosib Inninuwug territory. Ontario and Platinex both released statements on December 14, 2009 announcing the deal.

Platinex Inc. announced that “it has entered into an agreement with Ontario….where Platinex has agreed to surrender its claims and leases and settle the outstanding litigation ….in exchange for an upfront sum totaling $5 Million dollars in addition to the Company’s expenses throughout the Mediation process. The Company will also be entitled to a 2.5% Net Smelter Royalty in connection with any future development on the property.”

The Ministry of Northern Development, Mines and Forestry on the same day said, “ As part of the settlement, Platinex will drop its lawsuits against the Crown and KI, and surrender all its mining claims and leases at Big Trout Lake. In return, Platinex will receive $5 Million dollars and a potential future royalty interest. The government will withdraw these lands from staking and mineral exploration.”

On December 18, 2009, I received an email that there was to be a conference call to discuss the deal with “Kitchenuhmaykoosib Inninuwug and the Individual Defendants.” Apparently, Section 22 of the Settlement Agreement provides that the parties are to keep the terms of the Settlement Agreement completely confidential except for….

(v) disclosure to Kitchenuhmaykoosib Inninuwug and the Individual Defendants.

As one of the original “Individual Defendants,” I can receive a hard copy of the Settlement Agreement providing I first sign a confidentiality agreement. The form that was sent to me reads, “I agree not to disclose, directly or indirectly, the Settlement Agreement to any person, other than those persons to whom this Settlement Agreement may be disclosed under Section 22 of the Settlement Agreement and who have also signed a Confidentiality Agreement relating to the Settlement Agreement.”

As one of the “Individual Defendants,” I have not had chance to review the Settlement Agreement between Ontario and Platinex and I was under the impression that this was a done deal. I am unclear why Kitchenuhmaykoosib Inninuwug and the Individual Defendants are required to review this agreement under the cover of confidentiality when the two (2) parties have already disclosed to the general public what the terms of the agreement were through their press releases? Moreover, Kitchenuhmaykoosib Inninuwug had no say or input into the agreement. For whatever reason,  KI is expected to review the Settlement Agreement under a veil of secrecy.
Legally, the agreement does not require KI’s approval and the agreement will be implemented whether KI approves it or not. Apparently, according to legal counsel, the agreement requires that “KI be asked to drop its legal action against Platinex and in exchange for Platinex dropping its action against KI.”  The Kitchenuhmaykoosib Inninuwug Chief and Council have decided that they will seek “input through a community meeting before they sign a release to drop KI’s legal action against Platinex.”
We cannot forget that KI left the court process in October 2007 for financial reasons.

One of the most important lessons out of this conflict is that the principle of Free, Prior and Informed Consent (FPIC) be adopted in provincial and federal law throughout Noopemig. Consultation is not something to gloss over. Governments must be held accountable and FPIC must be the standard. In addition to control, First Nations must also meaningfully benefit from activities that go on in Noopemig.

The formality of being consulted to a foregone conclusion appears to bring the process of  consultation to nothing but an illusory conclusion achieved through manipulation at all levels.  Kitchenuhmaykoosib Inninuwug, through their lawyer, will be reviewing the Settlement Agreement the 3rd week of January, 2010.

As the funds get ready to flow out of Kitchenuhmaykoosib Inninuwug territory, the impacts of the resulting financial burden where the community cannot maintain its equipment  is evident as the sound of water bursts through frozen pipes mingling with the cries for fairness and justice throughout Noopemig!