Land Rights Not Mining Rights

These people should be called political prisoners and international bodies such as AI should be encouraged to take up their cause.

And perhaps we can start a Free Canada movement with a demand for a boycott of the Winter Games in Vancouver unless the government first addresses and settles outstanding land claims and treaty issues as well as honours existing treaties.

quote:Originally posted by Noise:

Are mineral rights within the existing treaties?

Arguable one way or the other depending on the treaty. It's not just about mineral rights though.
The main issue here in a nutshell is about consultation on the use of the land in question.

quote:Originally posted by Noise:

Little confused in the article as sometimes it states exploration and other times it's mining permit... I think I need to find more information, I'll post what I find.

Yes this article doesn't make it very clear. You need both a permit or license to explore or prospect and then further permits/licenses to actually mine. A 'prospecter' can actually 'claim' the right to prospect pretty much anywhere without any informing needed under the Mining Act. This also includes non-native private property as well. If you own land and the mineral rights aren't specifically in your deed they can not only claim but they can also come explore on your land and there is absolutely nothing you can do about it.
I believe they have to only give 24 hour notice. The situation in Sharbot Lake was actually discovered by a non-native property owner who happened to take a wander through his 100 acre property and saw that it already was staked out.
All perfectly 'legal' from the prospecting companies and governments perspective.

The prospecting companies are technically separate entities but in practice are usually just subsidaries or connected to the companies that will actually do the mining is the 'prospecting' part turns out to be viable. This in my opinion is also a bit of smoke and mirrors. In the case of Sharbot they at one point tried to convince people that just because they were 'prospecting' that it didn't mean that there would be a mine, considering the amount of geo-technical work that's done before the physical digging or drilling occurs. In the case of Sharbot documents were found that pretty much laid out where the actual mining was to occur.
This is likely why you have people commenting and conflating the two parts, exploration and the actual mining together. Where there's prospecting there likely will be a mine and likely they know where that mine will be.

Also it's good to note that companies in these two instances are largely one and the same. The lawyer for both is the same guy.

quote: Ardoch First Nation have NEVER signed a treaty or ceded any land to any colonial government. There is no legal grounds upon which Ontario or Canada's jurisdiction extends to the territory. When the judge threw out Robert Lovelaces testimony he was unilaterally deciding that Algonquin law did not exist.

Ontario knows that the Mining Act is unconstitutional but stayed quiet while Lovelace and the Chief and Counsel of KI went to jail and Sherman and the communities were fined and sued.

Ontario knows that if this reaches the Supreme Court they will have to change their Mining Act but they continue to do nothing because they think that they can make a quick buck while at the same time bankrupting the Ardoch First Nation and putting Indians in their place.

This is my understanding as well. From everything I have read, the Ontario government and the courts are exceeding their authority.

quote: KI falls under “Treaty 9,” which was signed in 1929. The legal dispute is that Platinex claims it has a right to explore and exploit under Ontario’s mining laws and tried to do so in 2005-6. Do the rights of mining companies to profit, based on provincial jurisdiction, trump agreements between the federal government and indigenous nations in an effort to protect the nations' means of survival? These means, to be clear, are good hunting, gathering, and fishing lands on Big Trout Lake in some good natural forest that will be destroyed by mining operations. KI argued that the drilling would do irreparable harm. Platinex argued that they were losing money. The Ontario court went with Platinex.

Ontario’s Mining Act is 135 years old and based on a wild-west model. It allows anyone to stake a claim anywhere on Crown land. This means that public land can be exploited for profit by private interests. The legal issue is whether this law supercedes all others – as well as any ethical or common sense that anyone might apply to the situation. KI and others have claimed that the Mining Act is unconstitutional, bypassing as it does the ‘duty to consult’. The court claimed that if these leaders weren’t jailed, there would be a loss of respect for the law, the creation of two regimes of justice. But there are two regimes of justice already. Those who illegally take or pollute indigenous territories are not punished with jail terms, the way Bob Lovelace and these other leaders have been. The Shabot Obaajiwan’s spokesperson Earl Badour put it succinctly in a press relese of March 18. ”The government accuses First Nations of breaking Canadian laws when they defend their lands, but Canada itself is selective about which of its own laws it will abide by,” said Badour. “If the law doesn't serve their purposes they conveniently ignore it." The Shabot Obaajiwan is suing the mining companies and the government based on the ‘duty to consult’ in Supreme Court rulings and the constitution. The duty to consult means that indigenous communities must be meaningfully consulted on resource exploration on their lands. This of course clashes with Ontario’s Mining Act, which is based on corporations grabbing whatever they can. The concern for the rule of law that was Judge Smith’s justification for the draconian sentences is a concern for the Mining Act above the constitution and Supreme Court decisions. Higher laws have been circumvented through for the sake of profit.

http://www.globalresearch.ca/index.php?context=va&aid=8506

ETA: Same article:

quote: Paul McKay, a friend and neighbour of Lovelace’s, made some other points about the mining in an op-ed in the Kingston Whig-Standard: “As even the mine promoter's lawyer has admitted in court hearings, there is a vanishingly small chance a uranium mine will ever get built at the headwaters of the Mississippi River northwest of Sharbot Lake. Compared to other deposits in Saskatchewan, Australia, South Africa and Asia, the ore is laughably low-grade, and the cost to mine fatally high.” So, too, McKay argues, recalling the Elliot Lake mines, would the pollution risk of trying to extract this low-grade uranium from these deposits.

The point of these jailings, McKay argues, is a two-fold political message. One, to the mining companies – the mineral wealth of the north is open to access and the government will clear any indigenous resistance out of the way. These include giants like the De Beers diamond company, which is operating in the north around the James Bay. Two, to the indigenous – that any resistance against the latest bonanza of extraction and destruction will be met with criminalization and brutal penalties. McKay also suggests that these mining companies might be looking, not for platinum or uranium, but for a government payoff “if the Ontario government effectively pays it to go away. If this occurs, then it will be Ontario taxpayers who end up being mined for millions. not uranium or platinum deposits.”

This, too, has a recent Ontario precedent – the Douglas Creek Estates on Six Nations Territory (I wrote about this for ZNet in 2006). In that case as well, the Ontario government is attempting the tactic of paying a massive amount of taxpayers’ money to a corporation to “go away.” In addition to benefiting speculators, it has the added propaganda benefit of making indigenous claims seem prohibitively expensive and “impractical” (the practicalities of endlessly expanding suburban subdivisions and toxic uranium and platinum mines having been accepted as a given

[ 03 April 2008: Message edited by: Frustrated Mess ]

Great information, ty.

So the Canadian Constitution states that "governments must consult with Aboriginal Nations before licensing mining exploration on their lands"... This is convienently over-ridden by the Ontario Mining Act? Thats just sad... Is there any recourse in taking this to a higher court?

Only political parties on the AI letter:

quote:
Green Party of Canada

Green Party of Ontario

That was a long read, but informative.

quote: Haida -- Supreme Court of Canada Decision

The Supreme Court of Canada, in a unanimous 7 0 decision, dismissed the Crown’s appeal, but allowed the appeal of Weyerhaeuser.

Consultation Obligation Applies Where Rights Are Asserted

The Court found that the source of the duty to consult and accommodate is grounded in the “honour of the Crown” (paragraph 16). In circumstances where the Aboriginal rights and title have been asserted, but not defined or proven, the Aboriginal interest is insufficiently specific to impose a fiduciary duty on the Crown (paragraph 18). The Court stated that the duty to consult and accommodate arises where the Crown has knowledge of the potential existence of an Aboriginal right or title, whether or not that right or title has been legally established, and contemplates conduct that may adversely affect it (paragraph 35).

The nature and scope of the duty to consult and accommodate will vary with the circumstances. In general terms, the scope of the duty is proportionate to a preliminary assessment of the strength of the asserted right or title, and the seriousness of the potential impact on it (paragraph 39). This produces a spectrum of consultation. In some cases, mere notice and an opportunity to discuss the proposed decision may be required. In other cases, “deep consultation” may be required where there is a strong claim to the Aboriginal right or title, or where the risk of non compensable damage to the right or title is high (paragraphs 43-44).

Accommodation

Good faith consultation efforts by the Crown and affected Aboriginal groups may, in turn, lead to an obligation to accommodate Aboriginal concerns. Where a strong prima facie case exists and the consequences of a proposed decision would affect it in a significant way, addressing Aboriginal concerns may require “taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim” (paragraph 47). The accommodation required is a process of “seeking compromise in an attempt to harmonize conflicting interests” (paragraph 49).

No Obligation to Obtain Aboriginal Consent

The Supreme Court confirmed that the final decision regarding balancing of Aboriginal and societal interests rests with the Crown. While the Crown is obligated to consult in good faith with the affected Aboriginal group, Aboriginal consent is not required. The court emphasized that Aboriginal groups do not have a veto over government decisions made pending final proof of their asserted rights or title. The Crown is not required to act in the best interests of the Aboriginal group, as a fiduciary, in exercising discretion.

The Court found that the duty to consult rested solely with the Crown and did not extend to Weyerhaeuser.

In this case, I beleive Platinex is the company in question... By this ruling, the duty is with the crown to consult, and not Platinex.

If that is true... It needs to change. The pdf FM linked (AI open letter to McGuinty, Point 2):

quote:Reform must include protection of the
rights of Indigenous peoples in national and international law and independent environmental
assessment of the cumulative impacts of proposed exploration and mining projects.

The problem in both the KI case and the Ardoch case is that the mineral exploration approved by Ontario will be on land where those communities have land claims, but those claims have not been proven. In the Haida case the Supreme Court said that communities with asserted rights, which have not yet been proven, must be consulted and accomodated by the government with respect to proposed development on the disputed land, but they cannot veto development. This means that Ardoch and KI have the right to negotiate agreements which would mitigate the impacts of exploratory drilling, and compensate them for the impacts, but these communities are not interested in any such deals. They are opposed to mineral exploration on their territories at this time, period.

This is why they have essentially given up on the courts and called on the government of Ontario to negotiate agreements with them which would allow them to withdraw sensitive lands from staking and exploration until their land claims are resolved. This can be done within existing legislation but the McGuinty government does not want to do it because their primary concern is to maintain all "Crown" land open for exploration and mining.

Here is a 10 minute video with highlights from the event. It turned out so well! (No, I didn't make the video [img]biggrin.gif" border="0[/img] ). It's well worth watching.

Mining, CIDA Partnership in Peru is Pacification Program  -  by Rick Arnold

http://embassymag.ca/dailyupdate/view/mining_cida_partnership_in_peru_is...

"Controversy erupted recently about new funding arrangements announced by the Canadian International Development Agency that would hook CIDA up with the mining industry and have both channeling funds to South America and Africa via a handful of international NGOs.

One of those projects connects CIDA, Barrick Gold and World Vision in Peru. A local indigenous rep has written them asking them to stop."