Quiet revolution in relations with natives

TheStar.com – Opinion – Quiet revolution in relations with natives
July 23, 2008. Douglas Sanderson

On July 14, Premier Dalton McGuinty announced Ontario’s intention to protect half of the great northern boreal forest.

At the same time, the premier also announced that any new mining in the North would require the consultation and consent of affected aboriginal people. This news was met with cautious optimism by First Nations, and a surprising degree of acceptance by the Ontario Prospectors Association.

In the past six months, Ontario’s First Nations and the mining industry have gone head-to-head in court, with several First Nations leaders being sent to jail for protesting mining companies’ attempts to prospect or to test drill on the traditional aboriginal lands.

First Nations people are asserting the right to be consulted – rights that have been confirmed by the Supreme Court of Canada – and which now require that aboriginal people be involved prior to any government action that could materially affect their aboriginal or treaty rights.

Ontario’s Mining Act was passed into law in 1873, and the basic structure of the act remains unchanged. Under the act, prospectors can stake claims on Crown land, and then the prospector registers the claim, thereby earning the right to mine.

However, most crown land in Ontario is also in the traditional land base of First Nations, and so the Mining Act’s outdated provisions have collided head-on with a developing jurisprudence on the duty to consult.

As it stands, the Mining Act grants rights to prospectors regardless of whether or not First Nations have been consulted, and the results have played out in Ontario’s courts and in fevered protests pitting mining companies against First Nations.

McGuinty intends to change all that by announcing the province’s intention to revise the Mining Act. Because the act will affect the aboriginal and treaty rights of Ontario’s First Nations, First Nations will have to be consulted.

The act will have to require early consultation with affected First Nations, and so McGuinty’s announcement is, essentially, that he intends to revise the Mining Act so it complies with decisions of the nation’s highest court. The decision to revise the Act is neither revolutionary nor prescient – it is simply a matter of doing what the law already requires.

Lost in the announcement, however, was the province’s intention to create a stream of revenue sharing that would accompany any mining in the North and that will be paid to affected First Nations. The revenue will be paid to First Nations by the province out of licensing and other fees, and not by mining companies themselves.

At the announcement, McGuinty said that the province is already beginning to set aside money for this revenue-sharing scheme – a sign that Ontario is serious.

This, combined with Impact Benefit Agreements – private contracts between resource companies and First Nations to mitigate the environmental impact of development, to require job creation for aboriginal communities, and sometimes oversight of the projects themselves – could provide a much needed influx of jobs, income and stability in Ontario’s north country.

It is easy to pan small steps, but it’s important to remember it was less than 15 years ago that disputes with Indians in the province were settled the old fashioned way: by the Tactical Response Unit which shot Dudley George to death.

The premier’s announcement to revise the Mining Act is a small step forward, not a giant leap, but it is part of a pattern of small steps taken by the premier and Aboriginal Affairs Minister Michael Bryant which together signal that, as between First Nations and the province, we may already be in the midst of a quiet revolution.

Douglas Sanderson is a visiting scholar and fellow in aboriginal law at the University of Toronto.

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