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.

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