Cautious confrontations: The latest stalemate in Ontario over aboriginal land claims tells a familia

Cautious confrontations: The latest stalemate in Ontario over aboriginal land claims tells a familiar story

by Joseph Brean, National Post

1st September 2007

Canada's latest standoff over aboriginal land claims became official at 3:04 p.m. yesterday, when a sheriff read out a judge's order for protesters to leave the site of proposed uranium exploration near Sharbot Lake, north of Kingston, or face immediate arrest.

The protesters, who have been there since June to enforce a self-declared moratorium on uranium mining, stayed put as expected, and the Ontario Provincial Police, fearful for public safety, did not immediately remove them. An OPP spokesman said the force is there to react and preserve public safety, and is assessing its discretion in carrying out the order.

"Tensions are higher," Constable Paige Whiting said. "It was very noisy."

This is an all too common stalemate. Mining privileges at the Robertsville Mine Site have been granted to Frontenac Ventures, a company that wants to drill bore holes to measure the uranium content of the underlying rock, and has brought a $77-million lawsuit against the Ardoch Algonquin First Nation, claiming the delay from the protest could force it out of business.

With more than 800 active land claims still unsettled across Canada, and the settled ones taking more than a decade on average to get there, frustration with aboriginal land disputes can easily turn to despair. Because, for all the commissions and inquiries that have waded into this legal and moral morass, all sides in this latest case agree it is the same old story.

For example, it is almost exactly the same thing that went on at Big Trout Lake in Northwestern Ontario earlier this year, when the uranium mining company Platinex sued a local First Nations band after it blocked access to their exploration sites, and ultimately won the right to go ahead, so long as it provided a full consultation.

Then, as now, the Mining Act is being called antiquated and unconstitutional for allowing Ontario to assign mining rights to land that is the subject of an unsettled claim. As ever, this dispute turns on the precise and practical meaning of "duty to consult," which the Supreme Court says is an obligation of provincial governments, but which, significantly, is not a duty to reach agreement.

With its disregarded court orders, native boycott of legal proceedings and the ever-present risk of violence, the conflict also recalls the high-pressure sieges of Caledonia, Ipperwash, even Gustafsen Lake, which led to the largest police operation in Canadian history.

The Ardoch Algonquins have pledged non-violence, but their lawyer, Chris Reid, declared this week in open court that there are hundreds, if not thousands, of like-minded protesters -- other natives, environmentalists and non-native local residents -- who are not bound by that promise, and who will come to defend the Ardoch Algonquins if they are "attacked."

"What could happen, if there are no negotiations, and if at some point the police decide that they have to enforce this injunction and start arresting people, you know, all bets are off," Mr. Reid said in an interview. "This could turn from a very peaceful situation into chaos very very quickly ... If that happens, it will be 100% the fault of the government of Ontario, which has done nothing, absolutely nothing to resolve this."

According to a CBC report, Ontario Premier Dalton McGuinty has said, "No doubt this situation also implicates the federal government And if we have a role to play, we will play the part."

"If things escalate at the site and confrontation happens, that will be a direct result of [Mr. McGuinty's] failure to live up to his election promise to follow the recommendations of Ipperwash," said Ardoch co-chief Paula Sherman in an e-mail. A key recommendation of the Ipperwash Inquiry, published in May, was to keep these disputes out of the courts, where battle-lines get drawn early and do not easily shift, and into an independent tribunal focused on building a consensus.

As it is now, aboriginal land disputes tend toward premature confrontation, both legal and physical. If agreement breaks down at the conference-table, the next logical is into the courtroom.

This might be about to change. In June, the federal government announced plans for an independent land claims tribunal to be set up by next year, funded with $250-million a year under legislation to be tabled in Parliament this month.

"The better path is to create solid and efficient alternatives for resolving these disputes so that people have less incentive to put themselves in situations of confrontation," said Michael Coyle, an assistant professor of law at the University of Western Ontario who has mediated several land disputes and been an expert witness at government inquiries. Despite the familiarity of the present case, he sees cause for optimism.

"I think there is a momentum now to create a process that's other than just hit-or-miss discussions, and I think once we have that kind of process, you will see far fewer of these kinds of confrontations, and if there are confrontations, there will be obvious answers that can be given to the people involved," Prof. Coyle said.

In 2004, in ruling on a logging dispute between the Haida Nation of B.C. and the province's minister of forests, the Supreme Court of Canada ruled that it is the Crown, not the corporation to whom it has granted logging rights (or, for that matter, mining or development rights), that has an obligation to consult with aboriginal peoples who might be affected.

This duty to consult "is grounded in the principle of the honour of the Crown, which must be understood generously," the court ruled. But while consultation must be "meaningful," there is no obligation to reach agreement.

Neal Smitheman, lawyer for Frontenac Ventures, said the company "has done as much as it can do ... What is a company supposed do? Just sit on its hands and effectively go out of business because there hasn't been adequate consultation?"

But this is a unique and complicated case in at least one way, since the Ardoch Algonquins are not signatories to the Algonquins of Ontario, and the uranium exploration is not even an exclusively native grievance. Although the Ardoch Algonquins refused to even argue against Frontenac Ventures' application for the order to remove the protesters, Mr. Reid says they will file a statement of defense next week, which will include a counter-claim against Frontenac Ventures and a cross-claim against the province, arguing the natives were not adequately consulted.

In the meantime, the lines have been drawn at Sharbot Lake, and no one seems willing to budge.