March 26, 2008 By Todd Gordon
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The recent jailing of six activists from Kitchenuhmaykoosib Inninuwug (KI), a fly-in Cree community 600 Km. north of Thunder Bay, is an unambiguous warning to northern First Nation communities who dare stand in the way of governments’ and resource companies’ plans to develop the north.
On March 17, the six KI members were handed six month jail sentences for contempt of court by the Ontario Superior Court in Thunder Bay. The contempt of court ruling was made after the court ruled in the fall 2007 that junior mining exploration company, Platinex, can legally drill for Platinum deposits on traditional KI territory, despite the First Nation community’s long-standing opposition to Platinex’s plans. KI activists ignored the ruling, and physically stopped Platinex workers from commencing drilling on their land. Activists, including a KI Ontario Provincial Police Officer (OPP), threatened to arrest the Platinex workers if they didn’t back off (no doubt presenting to political and OPP leaders a potentially serious loophole in their aboriginal self-policing policy).
Unable to fund a legal challenge to the contempt ruling, KI activists were left at the mercy of the court, which took the opportunity to send a clear message to indigenous activists. In his decision, Justice George Smith declared: “If two systems of law are allowed to exist – one for the aboriginals and one for the non-aboriginals – the rule of law will disappear and be replaced by chaos.”
Ontario’s Aboriginal Affairs Minister, Michael Bryant, commented that the government had tried hard to reason with KI and come to a just compromise around mining development on their land, but the First Nation community was simply too intransigent. Thus he washed his hands of matter, asserting that “the government did its best to avoid incarceration.”
Judge Smith’s and Bryant’s comments are designed to make it appear as if everyone, including KI, is equal before the law and can therefore get a fair shake if they’re willing to play by the rules – rules, for good measure, that keep us from descending into chaos. The reality, however, is that the one system of law that exists, rooted in colonialist history and imposed on sovereign nations by force, is designed to deny equality to indigenous nations and facilitate the ongoing appropriation of indigenous land. Equality before the law can never exist in a colonial context, and was never intended to. For the “chaos” the law is protecting us from is really only chaos in the eyes of big business and government: the assertion of indigenous self-determination, which stands as a major obstacle to corporate profits.
Unfortunately, the KI incident is not an isolated event. In April, Ardoch Algonquin First Nation leader, Robert Lovelace, was given a six month jail sentence for refusing to obey a judicial order to stop blockading Frontenac Ventures’ proposed uranium mine on his community’s land. The 550-person community, which has no government status and so receives no government funds, was also fined $10,000. Behind both of these events lies a major push to radically expand the frontiers of Canadian capitalism northwards.
Neoliberalism, Northern Development and First Nations
The emergence of neoliberalism in Canada has brought with it an intensification of the state’s and corporations’ focus on indigenous lands. Neoliberalism involves sharp cuts to social programs, privatization of public assets and workplace restructuring – all aimed at dramatically increasing corporate profitability by strengthening the hand of business vis-à-vis the public. But just as central to the neoliberal agenda in Canada, though less discussed, is indigenous land and labour. Because of their resistance to the Canadian state project, large layers of the indigenous population have not been fully integrated into market relations, and considerable portions of their land, much of it resource rich, have not been subject to capitalist development. The frontier of capitalist expansion, in the eyes of the state and business leaders, still has significantly further to go in Canada.
It’s worth noting here, too, that the creation of a larger indigenous working class, and indigenous peoples’ resistance to this project, is a key concern of the state’s policy towards them. It is expressed clearly in the policy documents of the Ministries of Indian Affairs, Industry and Natural Resources. Reserves were organized in part, and are still viewed by government, as a pool of cheap labour to be drawn upon when needed. Labour force issues relating to indigenous people, including their consistently lower participation rates than non-indigenous Canadians, has become a very consistent theme in Indian Affairs’ studies since the 1980s. These studies commonly note the significant growth rates of the indigenous working-age population, while observing with frustration indigenous peoples’ reluctance to join the capitalist labour force.
The mining, oil and gas, and pipeline industries are central to the agenda of northern expansion. Over the last decade, for instance, mining companies have been expanding their activities into regions of the country where capitalist development has hitherto been limited. Exploration has been increasing significantly in northern and interior British Columbia; the northern prairies, Ontario and Quebec; the Yukon; Nunavut; and the Northwest Territories, particularly since diamond deposits were discovered there in the early 1990s. Major finds of diamonds, gold and other subsurface minerals are expected in the artic in the next two decades.
As mining expands geographically in Canada, indigenous land and labour has become absolutely central to the success of the industry. The Mining Association of Canada notes that, “[m]ost mining activity occurs in northern and remote areas of the country, the principal areas of Aboriginal populations.” Natural Resources Canada reports, meanwhile, that approximately 1200 indigenous communities are located within 200 kilometers of an active mine. This figure will only increase as exploration intensifies. The Prospectors and Developers Association’s recent memorandum of understanding with the Assembly of First Nations (AFN), is aimed at drawing young First Nation members and their lands into the mining industry via the government-funded mainstream aboriginal political organization.
Meanwhile, much of the oil-rich regions of Alberta, fuelling that province’s booming economy over the last decade, are on unceded Cree territory. Alberta’s oil boom, in other words, is predicated on stolen land.
Perhaps the largest single infrastructural project planned in Canadian history, the much-vaunted (for political and business leaders anyways) $16.2 billion Mackenzie Valley Pipeline, can only proceed by cutting through several Dene communities in the Northwest Territories. While some communities have come on board the project in the desperate hope that it will, unlike so many resource projects that have come before it, provide real sustainable benefits to First Nation people without completely destroying their lands, other indigenous people are far more skeptical about such a possibility. Moreover, once it’s online, exploration for oil and mineral deposits along the pipeline’s 1,350 Km. route from Inuvik near the Arctic Ocean to the oil fields of Alberta is expected to increase.
These projects are the large, visible tip of the iceberg. Many more are being planned, including new hydro-electric dammning schemes in Manitoba. The location of the major resource development projects brings Canadian (and foreign) corporations squarely into conflict with indigenous land rights. But not only do First Nations claim much of the land resource companies seek to exploit, even if not directly on their lands such massive projects involve infrastructural inputs (access roads, river diversion, power lines etc.) that will undoubtedly wreak havoc on the surrounding environment, which indigenous people rely on to sustain traditional subsistence and cultural practices.
KI’s battle with Platinex highlights the tension between northern resource development and indigenous rights. Until recently, resource development in Ontario above the 51st parallel had been limited, and governments hadn’t aggressively sought to open the region up to multinational corporate predators. But corporations have been eyeing the region for some time, and now with government support are ready to move in. They see the Platinex situation as a test case for corporate rights in the area. KI signed a treaty with the government in 1929, in which it was granted 8,800 hectares of land. KI claims, however, that the calculation of the area of its reserve was improper, and in May 2000 filed a specific land claim with the federal government for 51,000 more hectares of its traditional land for its reserve – land that Platinex has mining claims on thanks to Ontario’s corporate-friendly mining code, which allows free claim staking on Crown land.
Given the glacial pace of the government’s official land claims process (in which First Nation claims to legal entitlement to traditional lands can take up to two decades, and with no guarantee of success), KI felt it had no choice but to take matters into its own hands. Much to the frustration of the Ontario government and Platinex, KI activists physically blocked Platinex operations and the community declared a moratorium on mining development on its land. KI Chief, Donny Morris, asserted: “We have said it before and we will say it again. No exploration means no exploration. Which part of NO doesn’t the Ontario government understand?” Of course, the government and Platinex were not to be deterred so easily, and turned to the legal system, with its rank air of justice and impartiality, to help them out.
Legal Cover for Colonialism
While Canada has certainly not been above the use of military or paramilitary force in its efforts to subdue First Nations (Oka, Gustafson Lake, Ipperwash and Six Nations spring to mind), the legal system is its preferred choice. It has the appearance of neutrality, is less sensational than armed conflict and can demobilize activists by channeling their energy into lengthy and costly court processes. The formal land claims process mentioned above is one example of this stratagem. The so-called “duty to consult”, which was invoked in the KI case, is another.
Hailed by government and some indigenous leaders as a legal victory for First Nations, the “duty to consult” has been developed in a number of Supreme Court decisions, including Sparrow, Delgamuukw, Haida-Takhu River and Mikisew Cree. The duty arises from the principle of the “honour of the crown” with respect to its relationship to indigenous communities, as stipulated by the Supreme Court. According to the Court, this means that in historically recognizing some form of aboriginal rights (to hunt or fish on traditional territories, for instance) deriving from the Royal Proclamation of 1763 through to section 35 of the constitution, the state has a responsibility to accommodate indigenous interests in cases where things like development projects (establishing a mine, for instance) could negatively impact those aboriginal rights. The duty can be invoked in instances where development is to proceed either on territory that indigenous communities assert a right to but which right has not yet been formally recognized by Canada, or on territory in close proximity to treaty land. Canada, the Supreme Court argues, must commit to “a meaningful process of consultation in good faith.”
But what’s “good faith”, and why should a colonial government, with connections to the resource industry, ever be expected to meaningfully act in such a manner? The Court never makes clear what “good faith” entails. Further, the Supreme Court also placed clear limitations on the obligations of governments in following the duty. According to the Haida decision, “there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable and good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.” So governments can undertake consultations that, as noted above, may not meaningfully exhibit real “good faith,” and if agreement is not reached by the indigenous party, then … too bad, and do not interfere further. Put more sharply, the Court asserts in the Haida decision, “This process does not give Aboriginal groups a veto over what can be done with land pending final proof of a claim.”
The KI case suggests skepticism towards the “duty to consult” is well warranted. When KI’s battle against Platinex first made it into the courts, the Ontario Superior Court ruled that Platinex had a “duty to consult” with KI before it proceeded further with its exploration plans, and imposed a nine month injunction on the company’s activities. In May 2007, when the nine months were up, and KI still had not reached an agreement with the Crown over the use of the land, it sought to extend the injunction. This time, however, the judge refused, stating that the consultation was a “reasonable and responsible beginning of accommodating KI’s interest and, at this point in time, is sufficient to discharge the Crown’s duty to consult.” In other words, the government can claim it fulfilled its legal obligations to consult with the First Nation, and any KI activists taking action to stop Platinex would now be in contempt of court. The balance sheet of the “duty to consult” here is clear: Platinex suffered a brief delay in its plans but can ultimately proceed, while six KI activists are now in jail.
Open For Business
It’s not just Platinex that wins here, of course. The message for resource companies, and the governments in their pockets, is that constitutionally-defined aboriginal rights may have to be considered, but they ultimately will not interfere with plans develop the north. And should indigenous activists be stubborn enough to take matters into their own hands, the full coercive power of the state will be brought to bear on them.
This is a crucial time for the north and its indigenous inhabitants. Corporations and political leaders have clear designs for it, in which indigenous interests are of little importance. However, some indigenous organizations like the AFN and the Nishnawbe Aski Nation (NAN), which represents forty-nine communities in northern Ontario, have grabbed at the carrots industry and government dangle in front of them, in hopes that if they can’t stop corporate development, then at least they can get a piece of the pie. It’s a risky move, though, as traditional lands risk destruction while development benefits rarely trickle down too far past the indigenous leaders.
In the wake of the court’s heavy-handed treatment of the KI activists, NAN has suspended its talks with the province. While a step in the right direction, this ultimately will do little to stop the development agenda. The reality is that it is well-organized, collective and militant defiance – and the genuine solidarity of non-indigenous activists – that has been the most successful check on Canadian colonialism. Just ask the Six Nations members at the land reclamation in Caledonia.
Todd Gordon is the author of Cops, Crime and Capitalism: The Law-and-Order Agenda in Canada and numerous articles in New Socialist magazine. He is an assistant professor of Canadian Studies at the University of Toronto, and can be reached at ts.gordon@utoronto.ca.
