Corporate & Native Resource Update: January 2013 Mid Report

Mid-January 2013 Report: Corporate – Crown – Native – Resource Issues from the perspective of Resource Rulers: Fortune and Folly on Canada’s Road to Resources

Drums along the Rideau:
Within the first month of Chief Theresa Spence’s ‘hunger strike’, natives won five superior court rulings relating to resources and native empowerment. (The first three were profiled in my ‘December in Review’ blog.)

Bill Gallagher on CTV Question Period with Kevin Newman

CTV Question Period

This compressed cluster of wins, along with her ongoing fast and Idle No More demonstrations, is proof positive that Canadians are witnessing the convergence of: the apex of the native legal winning streak with the apex of the rise of native empowerment.  The rising native anger that has now been unleashed has yet to land. The author spoke to this troubling aspect in an interview with CTV’s Kevin Newman on Question Period which aired January 12 2013 and is required viewing for Resource Rulers readers. Watch the interview here.

Watch the Interview

Jan 14 Messages to Chief Spence: several native leaders and government leaders have urged the embattled Chief to quit her protest now that the meeting with the PMO has occurred as well as the soiree with the Governor General.  However she has demurred and continues to press for ever more concrete evidence of progress.

In Resource Rulers (p.140-145) I profile how the McGuinty Government raided the local economy of the Attawapiskat region when it abruptly restructured the royalty rates of the nearby Victor Diamond Mine which fiscal sideswiping outraged both the miners and the band council. A summary of that sorry episode is also on my blog “Attawapiskat’s Secondary Economy”. No media have yet covered this aspect of the Chief Theresa Spence story; but clearly this budgetary scoop impacted the continuing appalling socio-economic circumstances in this pro-development native community. Disconcertingly, there are another 34 northern Ontario native communities watching and wondering why the only chief who has a producing mine on her doorstep in now into the second month of a ‘hunger strike’; meaning with every day that passes, the fate of the Ring of Fire becomes more inextricably tied to the fate of Chief Theresa Spence.

Jan 11: The half-day working meeting in the PMO’s main boardroom came just one week after the Prime Minister issued this press release setting out his priorities wherein he rightly prioritized economic development:

I will be participating in a working meeting with a delegation of First Nations leaders coordinated by the Assembly of First Nations on January 11, 2013. This working meeting will focus on two areas flowing from the Gathering: the treaty relationship and aboriginal rights, and economic development.

Jan 04: Treaty 6 press release
of the same date underscored the natives’ meeting expectations as they prioritized resource revenue sharing:

… the constitution of Canada put in place Section 35. The state of Canada must begin to implement those obligations and finally, there needs to be a process of resource revenue sharing,” said Okimaw Fox. (The same chief who had led the impromptu mass AFN delegation of native leaders intent on paying a visit to Parliament-in-session on Dec 04.)


Jan 03: Native Legal Win # 174 – The BC Court of Appeal was likewise preoccupied with economic development when it awarded the Tsilhqot’in Nation a procedural (court costs) victory against Canada and British Columbia in furtherance of their land title litigation;

[37]     The extent to which Aboriginal title exists is of fundamental importance to British Columbians. The issue is, of course, of particular interest to First Nations and to governments. It is also, however, of particular importance to the economy of the Province, given the continued importance of resource industries, which operate, for the most part, on lands that are subject to title claims by First Nations.

Because the case had ended somewhat in a draw when it was decided in June 2012, the issue of who pays what legal costs became contentious that merited a separate high court ruling: yet neither Canada or British Columbia were awarded legal costs – only the natives!


Jan 05: CN won a legal ruling ordering the immediate dismantling of blockades underway near Sarnia and Desoronto in support of Idle No More. The court was rightly concerned over police reticence to enforce the two injunctions:

[14]  On the evidence placed before me, the “highly textured” or “nuanced” elements of the rule of law which the Court of Appeal found are engaged in the circumstances of a section 35 land dispute had no application to 15 people standing on the CN Main Line saying they were showing support for First Nations Chiefs in a forthcoming meeting with the Prime Minister. Such conduct had nothing to do with the process involved in sorting out land or usage claims under section 35 of the Constitution Act, 1982; it was straight-forward political protest, pure and simple. Just as 15 persons from some other group would have no right to stand in the middle of the Main Line tracks blocking rail traffic in order to espouse a political cause close to their hearts, neither do 15 persons from a First Nation. For this reason, I would not regard the aboriginal identity of the protesters or their message as immunizing them from the standard balance of convenience analysis on a motion for an interlocutory injunction.

 [15]         Let me turn to address one final matter which I considered when deciding whether to issue the Injunction Order. We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions against demonstrators who will not voluntarily cease unlawful activities, such as those carried on by the protesters in this case. Just over two weeks ago, on December 21, 2012, I issued an injunction requiring First Nation protesters blocking a CN Spur Line in Sarnia to remove “forthwith” their obstructions. To my astonishment, the local police failed to assist in enforcing that order until January 2, 2013, under pressure from another judge of this Court, a passage of almost two weeks. In that case, the failure of a police agency to assist in enforcing a court order prompted me to query whether, as a matter of the balance of convenience analysis, a court should take into account the willingness of the local police agency to enforce a court order: …

Report of the Ipperwash Inquiry

Report of the Ipperwash Inquiry

Still this law-and-order ruling emanated in a very unique political context that is important to understand from a policing perspective and the requirement for both government and police to follow the Ipperwash Inquiry recommendations. Indeed by the time these comments issued: the premier had prorogued the legislature for almost three months; the political opposition thus lacked this venue; the premier’s successors had resigned their cabinet posts and were jockeying for position daily in the media; while the Aboriginal Affairs minister (the seventh in six years) resumed that portfolio after announcing that he too was leaving politics. This is hardly a proper political environment that promotes governmental accountability for what are potentially dangerous police enforcement actions. In fact, it’s precisely the sort of unaccountable moving-target backdrop that the Ipperwash Inquiry Report warned against in several specific and sweeping recommendations.

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