Trust. Integrity. Reputation.
October - 2007Report highlights Ontario's violations of Indigenous rights
By Kate Harries
Windspeaker Writer
GRASSY NARROWS FIRST NATION, Ont.
Despite a history of displacement and cultural upheaval, the people of Asubpeeschoseewagong (Grassy Narrows), near the Ontario-Manitoba border have demonstrated their determination to rebuild their community and their relationship with the land.
But a leading international human rights organization says the failure by the Ontario provincial government to respect the Indigenous rights of the community has hampered its recovery from catastrophic disruptions in the 1960s and 1970s-including a forced relocation to a site selected by the federal government and the mercury poisoning of the river system that provided food and jobs.
In a hard-hitting report released Sept. 20, Amnesty International Canada calls on Ontario to respect a moratorium on logging declared by Grassy Narrows in January. It also urges the province to work with Indigenous peoples to bring its laws, regulations and policies in line with its duties of consultation and accommodation, and to establish an independent agency to oversee resolution of land and treaty disputes, as recommended by the Ipperwash commission.
Amnesty International Canada sent a mission to Grassy Narrows in April to investigate the rights violations, the second such investigation in Canada's history (the first was of a 1982 Quebec prison riot). While Grassy Narrows was chosen because the situation there is particularly urgent, the report says it's not unique. Rather, "it's a powerful illustration of the great harm that can be caused by the exercise of arbitrary and unchecked state power over the lands and lives of Indigenous peoples."
In the case of Grassy Narrows, "the Province of Ontario has long failed to uphold its responsibility to respect Indigenous rights," the report states. "The province did not carry out meaningful consultation before licensing large-scale logging activities. And it has ignored clear calls from the community to stop the logging and other industrial development until consent is given."
In an interview, David Ramsay, Ontario's Aboriginal affairs and natural resources minister, who is now in the midst of a provincial election campaign, noted that in September (in the last month of his four-year mandate) he appointed retired Supreme Court Chief Justice Frank Iacobucci to lead discussions with Grassy Narrows on forestry issues. Talks are to start in November.
Ramsay defended the province's forestry regulation as one of the most sustainable in the world. "We have good relationships, especially in the north where we have forestry," he insisted, ignoring a groundswell of discontent from across the north over resource extraction without revenue sharing. "It's been in this one area (Grassy Narrows) where we've had difficulty."
"We welcome that appointment," said Amnesty International Canada's Craig Benjamin, author of the report, of Iacobucci's new role. "It's a positive step. At the same time there's no guarantee the talks will proceed quickly. Where is the protection of their rights in the interim?"
In a 2004 ruling involving the Haida First Nation, the Supreme Court of Canada found that government must respect potential interests, because continued exploitation could deprive Aboriginal claimants of some or all of the benefits of the resource. Ramsay said Iacobucci has the power to order interim protection measures.
Benjamin noted that the effects of past violations are still being felt. Some Grassy Narrows people still have mercury poisoning symptoms, and fish, their staple food source, remains suspect. Meanwhile, populations of animals trapped or hunted for fur and food are reduced by clearcuts and wild foods like blueberries are contaminated by pesticides. "How much more can this one community endure?" he asked.
Abitibi is current holder of the licence to log the Whiskey Jack Forest, the area around Grassy Narrows that roughly coincides with the First Nation's traditional territory. When the company prepared to clearcut up to the boundary of the reserve in 2002 the community rose up in protest. They blockaded a logging road by Slant Lake, some 10 kilometres from the reserve. The blockade still stands, the longest political action of its kind in Canadian history. Nevertheless, processes continue that profoundly impact the land and the people's relationship with it; a relationship that for Indigenous people defines culture, identity and survival. "Everything about being Anishinaabe is the land," Roberta Keesick, a Grassy Narrows trapper and grandmother says in the report. "Without the land that's pretty well cultural genocide."
The Amnesty International Canada report faults Ontario's forestry management regime for failing to meet standards set by Canadian courts, which view meaningful consultation as a minimal legal duty. There has been no distinct consultation process for Aboriginal people, despite their distinct treaty and constitutional rights. The Ontario government recently, for the first time, offered a specific process in its development of a five-year plan to take effect in 2009, but so far Grassy Narrows has not been interested in participating.
The report stresses that, depending on the impact, governments may have an additional legal obligation "to proceed only with the free, prior and informed consent of the affected people."
Free, prior and informed consent is the language of international law, as in the United Nations' recently adopted Declaration on the Rights of Indigenous Peoples, which was opposed by the federal Conservative government. But, the report points out, the declaration doesn't create any new rights, it merely clarifies existing obligation.
Canadian law sets a similar standard. In the 1997 Delgamuukw decision, the Supreme Court stated that situations requiring only the minimum duty of meaningful consultation are "rare" and the legal duty of the Crown may require the full consent of an Aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to Aboriginal lands.
Canadian governments generally resist the notion that they should obtain Aboriginal consent before proceeding with plans that could affect Aboriginal rights. The Haida decision is often quoted for stating that the process does not give Aboriginal groups a veto over what can be done with land pending final proof of a claim. But, Benjamin points out, the decision implies that once Aboriginal rights are established and proven, then, potentially, there could be a veto.
"If Indigenous peoples are not recognized to have the right of consent, at the end of the day that means all power is in the hands of the ministry bureaucracy," he said. "Government in effect has a veto."
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