NAN pleased Ontario Court of Appeal finds jailing first nation leadership not the answer in land disputes


NAN pleased Ontario Court of Appeal finds jailing first nation leadership not the answer in land disputes


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THUNDER BAY, ON, July 7 /CNW/ — THUNDER BAY, ON, July 7 /CNW/ – Nishnawbe Aski Nation (NAN) Deputy Grand Chief Alvin Fiddler is pleased by the decisions of the Ontario Court of Appeal today in the cases of Frontenac Ventures Corporate v. Ardoch Algonquin First Nations and Platinex v. Kitchenuhmaykoosib Inninuwug First Nations where the court found that jailing First Nation leadership in a land dispute with the Crown was "too harsh" and should only be used as a last resort.


"This is good news for the leaders of First Nations who are concerned about being jailed for protecting their lands and defending their Aboriginal and treaty rights," said NAN Deputy Grand Chief Alvin Fiddler. "The Courts are saying that Ontario has an obligation to actively bring about reconciliation with First Nations and not just stand on the sidelines when First Nations leaders are at risk of being incarcerated," said Fiddler.


Today's decisions by Justices James MacPherson, Marc Rosenberg and Kathryn Feldman granted the appeals by the First Nations leadership of both communities and concluded that jailing First Nations leadership in disputes between the Crown and Aboriginal people should only be used as a last resort.


"The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation." (par. 58)


NAN had intervener status at the appeal and argued that the lower court had missed an important legal step when it sentenced the First Nations leadership to six months in jail rather than continuing the negotiation process that was required as part of reconciliation between First Nations and the Government of Ontario.


"In my view, the Court has set a different and higher standard for granting injunctions when cases involve restricting asserted Aboriginal and Treaty rights. The decision sends a strong message to the Ontario government that negotiation, not incarceration, is the best way to reconcile the claims of our Aboriginal communities with the rights of the Crown," said lawyer Julian Falconer who, along with Aboriginal Legal Services of Toronto, represented NAN at the Court of Appeal.


The KI leadership and the Ardoch leadership were sentenced to six months in jail for civil contempt of court after disobeying court orders which allowed mining exploration on traditional territories.


In declaring the sentences too harsh, the Court of Appeal stated "… in light of the progress already made, much of it with the encouragement and assistance of the motion judge, there was no need to bring down the hammer of long jail sentences and very substantial fines." (par. 65)


Nishnawbe Aski Nation is a political territorial organization representing 49 First Nation communities in James Bay Treaty 9 and Ontario portions of Treaty 5 – an area covering two thirds of the province of Ontario.