April 9, 2008
To Our Allies, Friends and Supporters
From the Chief and Council of KI:
Why We Are In Jail
We have been in jail since March 17. This is a small note to our friends and supporters to explain why we are still in jail and why we may be in jail for several more months.
First of all, we want to thank all of you for your support and encouragement. You have given added strength to a strong community under siege. We especially want to thank our brothers and sisters from Muskrat Dam, Bearskin Lake, Wawakapeewin, Wapekaka, and Kingfisher Lake First Nations, as well as Nishnawbe-Aski Nation, who have supported KI and our allies, the Ardoch Algonquin First Nation, by suspending lands and resources negotiations with Ontario.
Contempt of Court and Sentencing
On October 25, 2007 KI announced that we could no longer afford to participate in court proceedings in the Platinex dispute, and then we walked away from the court. After 18 months of litigation and negotiations, legal options had been exhausted and our community was virtually bankrupt. Our position had not changed: KI will not support any exploratory drilling by Platinex and we will not negotiate with Platinex, despite being ordered by the court to do so. Our priority is the protection of our land, not money.
After KI walked out of court, Mr. Justice Smith issued an order which prohibits our members and supporters from interfering with or obstructing Platinex as they conduct exploratory drilling within KI’s traditional territory. When KI responded to the October 25 order by publicly announcing that Platinex would not be welcome in KI’s traditional territory, Platinex brought a motion for civil contempt of court.
On November 12, 2007 we retained Chris Reid as our lawyer. We have given Chris very clear instructions not to appeal any orders or defend against contempt of court proceedings. Our dispute with Ontario will not be resolved through the courts – it must be resolved through government-to-government negotiations between KI and Ontario.
On December 7, Platinex’s contempt motion was heard by Mr. Justice Smith in Thunder Bay. We offered no defence to the contempt of court motion. We told the court that we would not obey the October 25 order and would not engage in any further negotiations with Platinex. We then were found in contempt of court. Contrary to what Minister Bryant has been saying in the media. Ontario did not support KI in any way.
On virtually every issue they support Platinex.
On March 17, we were sentenced to six months in prison for contempt of court. This was expected since Robert Lovelace, former Chief of the Ardoch Algonquin FN, had received a six month sentence in a very similar case on February 15, 2008. Again, contrary to what Minister Bryant has been saying in the media, Ontario did not support KI on the sentencing issue. Bryant’s lawyers asked the court to severely punish us for our “disobedience”.
Although our focus is no longer on the courts, a process to appeal the sentences has begun. Since it could take many months before the appeal will be heard we will also be bringing a motion in the Court of Appeal to have the sentences suspended pending the hearing of the appeal. The motion will also ask that all prisoners be released unconditionally and immediately. Our lawyer has asked lawyers for Ontario whether they have instructions from Mr. Bryant to support a motion for our immediate and unconditional release. Ontario’s lawyers have not yet responded.
After We Are Released
Both KI and Ardoch remain committed to the proposal which we made in January for a Joint Panel to examine the causes of these disputes and make recommendations for preventing similar disputes in the future. Although Mr. Bryant has not yet responded to the proposal, both communities have told him that we are still prepared to work with Ontario to set up the Joint Panel, as soon as all of the prisoners are released from jail and a moratorium on mining and exploration in the disputed territories is implemented.
KI’s Position on Legal Issues
Although we say that Ontario failed in its duty to consult with us before giving Platinex permission to explore for minerals on our land, we do not expect to achieve our goal of protecting our lands through the courts. We learned the hard way that the courts are not always the way for First Nations to get justice.
To encourage mining and exploration, Ontario’s Mining Act is based on a “free entry” system, which means that all Crown lands, including those subject to Aboriginal title claims, are open for staking, exploration and mining without any consultation or permitting required. Anyone with a prospector’s license may stake claims and prospect for minerals on any Crown land. Once a claim has been staked the Mining Recorder “shall” record the claims. There is no opportunity or requirement for consultations with affected First Nation communities. Once a claim is recorded, the prospector can conduct exploratory drilling without any more permits being required.
It is also important to know that in the 2004 Haida case, the Supreme Court made it clear that First Nations which have asserted rights claims or land claims, but not have not yet proven their claims, must be consulted and accommodated, but they cannot “veto” development on disputed land. Consultations and accommodation can include measures to mitigate the impacts of the project and provide some compensation for the affected communities, but they must lead towards implementation of the project. KI spent more than 18 months and $700,000 trying to break out of this legal box only to find ourselves faced with an injunction which permits drilling by Platinex and forbids us from obstructing Platinex.
The only way to achieve what KI and Ardoch believe is a fair and just solution is through negotiations between Ontario and the First Nations. Negotiations could lead to land use plans which withdraw sensitive lands from mineral staking and mining. That’s why we ask that our supporters focus on the need for political action to resolve these disputes, not the courts.
We want to get out of jail and go back to our families, but please remember why we are here. We need Ontario to agree that Platinex will not be allowed to drill on our territory, and to work with us to ensure that disputes like this one do not happened again. If we have to remain in jail for five more months, or even five years, so be it.