Seven aboriginal protesters granted release by Ontario Appeal Court

May 28, 2008 - 6:28 pm

By: Tobi Cohen, THE CANADIAN PRESS

TORONTO - Moments after the Ontario Court of Appeal decided he'd served enough time behind bars, the last of seven aboriginal protesters jailed over disputes with mining exploration companies walked out of court saying he planned to stroll barefoot in the grass.

The overcrowded courtroom, filled mostly with aboriginal supporters, burst into applause and even a court police officer shook the hand of Ardoch Algonquin First Nation's leader Bob Lovelace who spent 3 1/2 months in jail.

"It feels really good. It feels like justice is on our side," Lovelace said on the front steps of the courthouse, his wife by his side.

"I think I'm going to go out and put my feet in the grass. It's been a long time."

The eastern Ontario aboriginal leader was jailed in February for breaching an injunction that allowed Frontenac Ventures to conduct uranium exploration activities on his community's traditional territory unhindered.

While the ruling does nothing to resolve the dispute, Lovelace said he hoped this "exercise" would prompt the Ontario government to engage in "meaningful" discussion and consultation on the matter which ultimately comes down to an archaic Mining Act that allows companies to stake land anywhere they like.

But Lovelace cautioned he must "continue to protect our land," meaning he may be forced to occupy the disputed territory again if the company decides to proceed with exploration activities - a situation that could land him back in jail.

The court also decided six leaders from Kitchenuhmaykoosib Inninuwug (KI) First Nation had served enough time and ought to maintain their freedom.

They had breached a similar injunction involving the company Platinex Inc., which sought to drill on their land some 600 kilometres north of Thunder Bay, Ont.

Chief Donny Morris, deputy KI chief Jack McKay and members Sam McKay, Darryl Sainnawap, Cecilia Begg and Bruce Sakakeep were granted a temporary release last Friday pending the outcome of Wednesday's sentence appeal.

Chris Reid, a lawyer representing the two aboriginal groups, argued aboriginal law dictates the leadership must uphold the wishes of their community, which in this case, is to stop companies from engaging in mining exploration on their land.

"This is not an isolated case," Reid said. "It's something that's going to occur again and again."

He suggested the aboriginal groups are prepared to discuss the matter, but want the right to say no if they don't like what they hear.

The Appeal Court judges ruled that all seven would have their sentences reduced to time served but reserved their reasons for the ruling.

While lawyers representing the two companies supported the release of the KI 6, they contested Lovelace's release, suggesting he had only to agree to abide by the rules of the injunction.

Lawyer Neal Smitheman argued Lovelace's non-status band had a weak claim to the contested land in the first place which makes it a much different case than that of the KI 6.

Another group of Algonquins have been negotiating a land claim that includes the Ardoch territory for more than a decade but negotiations have "failed miserably," he added.

He suggested it's really a matter for the province to resolve, not the mining companies.

"This is not Frontenac's fight. We are not the villains. We are the victim," he said.

"We're just obeying the law."

As for the KI appeal, Smitheman told the court he was "instructed" by Platinex not to oppose it.

"It does not serve any purpose to keep the leaders of KI incarcerated," he argued.

The groups have repeatedly slammed the province for doing nothing on the matter. Aboriginal Affairs Minister Michael Bryant even walked out of a meeting Tuesday with the KI 6 when the conversation turned to Lovelace's fate, Reid said.

Still, the province's lawyer Malliha Wilson, surprised everyone when she spoke out in support of freeing all seven protesters.

She also sparked a waved of laughter and much confusion among the three-judge panel when she suggested a more appropriate punishment than jail would have been to fine them and direct the money to a trust fund to support their communities.

One judge noted the province's original position was to "impose a fine that hurts," and questioned the sudden change in language which was now promoting reconciliation.

"The words 'hurt' and 'reconciliation' are total opposites," Justice James MacPherson said.