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CANADA: Native Lands Ruling Opens Up New Questions

Fawzia Sheikh

TORONTO, Sep 6 2011 (IPS) - As Canada’s aboriginal community celebrates last month’s milestone legal ruling regarding clear-cutting in Ontario and the forestry sector mulls its future strategy, discussions are taking place about how to carry out an impact assessment evaluating damage incurred by decades of industry encroachment on traditional lands and forests.

The Ontario Superior Court of Justice in mid-August ruled that the province, which has offered companies logging and mining rights in the past, cannot infringe on the traditional hunting and fishing privileges of the Grassy Narrows First Nation promised under an 1873 federal treaty.

The federal government forged Treaty 3 with the Saulteaux Tribe of the Ojibway (Anishinaabe) Indians, the predecessors of the Grassy Narrows community. Madam Justice Mary-Anne Sanderson weighed in on a power struggle between Grassy Narrows and the provincial government regarding control of territory based in the northwestern Ontario and eastern Manitoba provinces.

This long-awaited ruling is the first to analyse in detail why the federal government has jurisdiction over lands reserved for First Nations people, noted Robert Janes, the Victoria, B.C.-based lawyer for Grassy Narrows. Despite what governments have always argued, Sanderson found that Treaty 3 was based upon shared land with the government, not an aboriginal surrender of all rights, he said.

As the clear-cutting impact assessment is now considered, the situation on the ground has already changed.

The reality is that “Abitibi has gone away, and so that’s reduced the immediate pressure on the land and also the lands we’re fighting over,” Janes told IPS.

The original 2006 lawsuit listed the defendants as the minister of natural resources and Abitibi-Consolidated Inc., but Abitibi later relinquished its licence for the Whiskey Jack Forest following years of protests and other blockade measures by Grassy Narrows.

At this point, the deadline for the impact assessment is unknown, said Janes, adding that “we’re still discussing [the evaluation] with the government.”

However, the Aug. 17 ruling raised a variety of significant issues which must have bearing when the province undertakes “consultations and accommodation” with Grassy Narrows, he noted. For instance, the government’s position has always been that aboriginal rights were not affected because forests would re-grow over a period of about 75 years, he explained.

The provincial Superior Court of Justice decision states the government must consider how aboriginal people practise their rights today, including the consequences of clear-cutting on their hunting grounds, the repercussions of this situation on their families, and the actual advantages of logging activities flowing to First Nations communities, he added.

Moreover, Janes noted, the court indicated that a determination of how the forest-products sector has encroached on the First Nations should detail how the whole aboriginal way of life has transformed. In the 1800s, fishing, rice-gathering, and hunting on vast territories bolstered the Grassy Narrows’ livelihood, and as a result industry logging operations in one area may not have mattered, he argued.

“Nowadays, of course, they’ve lost many of the agricultural areas that they’ve had. Many of their fishing grounds have been compromised. The sturgeon fishery’s been destroyed. The mercury poisoning has shut down quite a few of the other fisheries. Their rice-harvesting areas have been flooded. And so hunting is really all that’s left of the traditional way of life.”

Joseph Fobister, a Grassy Narrows trapper who helped bring the case to court, related how the extraction activities were making it “harder as time went on” for the aboriginal people living in the coveted area, due to the lack of forest regeneration.

In this patch of Northwestern Ontario, the petering-out population of Pine Marten, a weasel-like animal that is “easy to trap” and brings a “good price to the trapper”, was initially observed, Fobister told IPS. He said Pine Marten prefer old-growth forests, which are disappearing, but Fobister believes the species can recover since the days of clear-cutting are nearing an end.

Relentless logging also took its toll on moose overrun by deer that thrive in clear-cut forests, he noted. The deer, however, carry viruses and other sicknesses that kill moose, an animal which boosts Grassy Nations’ incomes.

“I think there’s a place for everybody on the land,” Fobister sai. “It was never our intention to put logging companies out of business, but they have to show a little bit more respect to other users… We have to have some control over what happens in our territory.”

The Anishinaabe of Grassy Narrows have been waging a long-running battle with timber companies like Weyerhaeuser Co., based in Federal Way, WA, marked by decades of petitions, letter-writing, speaking tours, environmental assessment requests and protests. In an open letter issued last year to loggers, retailers and investors, Grassy Narrows continued to call for a boycott against the company and divestment due to its “violation of our human rights as Indigenous Peoples”.

Overall, Fobister predicts “huge benefits” emerging from the new power to dictate the fate of expansive lands that the Ontario government once freely parceled out to forests-products giants. “At least now, First Nations will have a place on the land,” Fobister argued, “whereas in the past we’ve been pushed aside to make way for development.”

The Ontario Superior Court of Justice decision, which will likely be appealed, raises questions about the relevance to other treaty lands, such as “resource rich lands” in northern Ontario and northern British Columbia, Alberta, Saskatchewan and part of Northwest Territories, Fasken Martineau lawyers Vaso Maric and Murray Braithwaite recently wrote in a bulletin.

The ruling may encourage other aboriginal groups to launch their own claims, increasing the chances for “expensive litigation, uncertainty as to potential liability, and uncertainty as to status going forward”, they added.

For industry players, there is a greater reluctance to speculate on the fallout to their businesses. The Ontario Forests Industries Association said it is awaiting responses from members before making a definitive comment.

Weyerhaeuser, which has two mills in Ontario, is “still in the midst of analysing the recent court decision”, said Anthony Chavez, the public relations manager.

Chavez, who noted that one mill is already “indefinitely curtailed”, told IPS that the company is familiarising itself with the positions taken by all parties before gauging the outcome of Justice Sanderson’s decision on its operations.

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