Wednesday, March 26, 2008

History of Treaties: KI Platinex

The idea that blogs will supplement or replace the failings of older media seems to be disproved again. I find only very thin blog coverage of the dispute that has seen five men and one woman, all elected councillors of a northwestern Ontario First Nations, jailed for their efforts to assert First Nations rights against a junior mining company called Platinex and the government of Ontario. (Not much in the press either, for that matter.)

KI First Nation, 600k north of Thunder Bay, adhered to James Bay Treaty 9 in 1929. It's a typically draconian treaty of that era (text here), with much language on the lines of "cede, release, surrender, and yield up... all their rights titles and privileges whatsoever."

But Treaty 9 also confirms that the First Nations signatories shall have the right to continue their traditional vocations of hunting, trapping, and fishing "throughout the tract surrendered." It's true that the right is "subject to regulation" and tracts taken up for, among other things, "mining" are exempt. But the right to hunt, trap, and fish must mean something that non-natives have to respect.

Platinex wanted to do exploratory drilling near the KI reserve. KI observed that it holds the right to hunt, trap and fish there and the drilling would render that right impossible to implement. The Supreme Court of Canada has repeatedly pronounced that First Nations have a right to be consulted on activities on lands covered by treaties.

But Platinex operates under the provisions of the Ontario Mining Act, which is written as if the treaties did not exist and permits almost unlimited mining activity on "crown land". In court, Ontario defends the authority of its Mining Act, and the courts find repeatedly that the Mining Act must be obeyed -- again, as if the treaty did not exist or as if the rights the treaty guarantees to the native peoples had no standing that courts need to observe. Once again, we see Ontario judges speaking sternly about the rule of law -- but seeming to cherrypick which laws they will rule on.

The James Bay Treaty 9, most unusually, had an Ontario representative sitting with the federal officials. The treaty binds Ontario as well as Ottawa, as well as the First Nations. Why don't the courts ever consider jailing anyone representing Ontario for their failure to observe their treaty obligations?

There's a problem here, God knows. But jailing First Nations representatives because they assert treaty rights against provincial mining regulations? What have we come to in a country said to observe the rule of law? Fred Hiltz, primate of the Anglican Church of Canada, calls it colonialist law. "Settlers' justice" comes to mind too.
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