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
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
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
As mining expands geographically in
Meanwhile, much of the oil-rich regions of
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
These projects are the large, visible tip of the iceberg. Many more are being planned, including new hydro-electric dammning schemes in
KI’s battle with Platinex highlights the tension between northern resource development and indigenous rights. Until recently, resource development in
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
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,
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,
Todd Gordon is the author of Cops, Crime and Capitalism: The Law-and-Order Agenda in