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Article

Aboriginal Protest against Mining Exploration: The Paramountcy of the Rule of Law

Date

June 5, 2008

AUTHOR(s)

Ann Bigué
Marc-Alexandre Hudon


In a March 17, 2008 judgment confirming that Aboriginal communities are subject to the rule of law, the Ontario Superior Court sentenced eight Aboriginal community leaders to six months’ imprisonment after finding them in contempt of a court order for having impeded or threatened to impede mining exploration activities on their traditional land. More importantly, the court affirmed that the desire of Aboriginal communities to protect their land, cultural heritage and way of life does not supersede a court order granting the right to a corporation to proceed with economic development activities on this land. In this case, the activity was exploratory drilling.

The judgment in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation is the most recent episode in a judicial saga involving Platinex, a junior exploration company, and the Kitchenuhmaykoosib Inninuwug First Nation (KI), an Ojibwa/Cree First Nation occupying a reserve on Big Trout Lake in northern Ontario. KI is a signatory to the 1929 adhesion to Treaty 9, the James Bay Treaty in Ontario. The initial action was instituted in 2006, following seven years of negotiations between Platinex and KI concerning a mining exploration program to be conducted on Platinex’s unpatented mining claims located on traditional non-reserve KI land. During the negotiations, in 2001, KI adopted a moratorium on all mineral activities until proper consultations had taken place.

On July 28, 2006, an interim order was granted by the court barring Platinex from engaging in its exploration program for five months, conditional upon KI setting up a consultation committee to draft an agreement that would allow Platinex to conduct its exploration activities. This injunction was later extended by a few months, to May 1, 2007. The court then refused to renew the injunction. In so doing, the judge acknowledged KI’s perspective but observed that no concrete evidence supported KI’s position that Platinex’s exploration program could threaten KI’s culture and heritage. On the other hand, the court praised Platinex for its proposal to act cautiously, with constant consultation and attention to KI concerns. On October 25, 2007, the court issued an order permitting Platinex to proceed with the first phase of its exploration program.

On December 14, 2007, however, the court found eight KI community leaders in contempt of its previous order for having prevented Platinex’s employees from beginning the first phase of the exploration program. Evidence was specifically provided that these leaders, along with other community members, had prevented Platinex’s drilling staff from entering the village’s airport and that Ontario Provincial Police First Nation police officers had threatened them with arrest if they did not leave KI’s land.

The decision in Platinex to impose a six-month prison term on the community leaders is deeply rooted in the court’s concern to maintain the paramountcy of the rule of law in the face of conduct that openly challenged the integrity of the justice system. Having stressed that courts need to exercise their inherent power to punish contempt of court with scrupulous care, the court noted that imposing prison terms was not uncommon in situations involving deliberate disobedience of a court order, especially if the disobedience has not been followed by apologies. Relying on existing jurisprudence, the judge set out a list of ten factors and sentencing principles that should be taken into consideration before imposing a sanction for contempt of court. These factors include the level of defiance of the court order and the repetition of the act of disobedience, its public nature, the position of the contemnors in their collectivities, their ability to pay a fine, their acknowledgment of the paramountcy of the rule of law, and the admission of the commission of the disobedient act.

Among the aggravating factors found by the court was the fact that the contemnors were community leaders who had used their position of authority to incite other community members to defy repeatedly and continuously the order. The most significant aggravating factor, according to the judge, was the fact that none of the contemnors had acknowledged the paramountcy of the rule of law. In his view, the flagrant and repeated defiance of the contemnors warranted a severe prison term. The judge also issued an order staying further procedures by KI and the contemnors.

Throughout the proceedings, Justice Smith emphasized the importance of reconciliation between Aboriginal interests and other interests. The court concluded its judgment in Platinex by offering to vary or discharge the custodial order if the contemnors agreed to purge their contempt.

On May 27, 2008, the Ontario Court of Appeal upheld an appeal of the sentences in Platinex and in a similar case in which the Ontario Superior Court had imposed a prison term on an aboriginal leader who had been found in contempt for organizing a protest at a potential uranium mining site. The Ontario Court of Appeal immediately reduced the custodial orders to time spent but reserved its reasons for a later date.

A version of this article originally appeared in the April 18, 2008 edition of The Lawyers Weekly.

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