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Jail sentences set aside.

Seven leaders freed by Ontario court of appeal

TORONTO - An Ontario appeals court has set aside the six-month jail sentences imposed on seven aboriginal leaders who were incarcerated for refusing to cease protesting mining exploration in their traditional territory.

''Justice was done,'' said Bob Lovelace, former chief of the Ardoch Algonquin First Nation.

He, along with the ''KI Six'' - Chief Donny Morris and five other members of the Kitchenuhmaykoosib Inninuwug (Big Trout Lake) First Nation - walked out of the Osgoode Hall courthouse with their freedom in May after a daylong hearing before three Ontario Supreme Court justices.

Lovelace vowed to continue his fight, even if it meant further jail time.

''We plan to continue to protect our land,'' he said. ''I'm hoping from this whole exercise the government will want to engage in some meaningful discussion that will lead some place that won't be back to jail.''

''I think history has been made,'' said KI council member Sam McKay. ''I think it's time the government starts taking aboriginal issues really seriously. I think we have an opportunity to do relationship-building between the government and aboriginals, but the government has to be willing to do their part.''

A possible way forward was spelled out a few months ago in a joint proposal from the KI and Ardoch Algonquin First Nations that called for a moratorium on mining exploration pending the recommendations of a joint panel to be set up with representatives from the government and the two communities. That would lead to negotiation of an interim measures agreement that would provide for land withdrawals and joint decision-making on resource extraction.

Aboriginal Affairs Minister Michael Bryant agreed to a joint panel with KI, but refused to include the Ardoch Algonquins in the deal - which meant that KI refused to be part of it.

Michael Gravelle, minister of Northern Development and Mines, has refused to heed calls for a moratorium while new rules are worked out.

Calls for reform of the underlying legislation, Ontario's mining act, based on a free-entry system that allows claims to be staked and exploration to start without environmental assessment or the consent of affected First Nations or landowners, have also come from many parties, including Robert Kennedy Jr.

''I have great respect for the way in which these community leaders have faced threats to their traditional lands,'' the Natural Resources Defense Council lawyer wrote in a May 22 letter to Premier Dalton McGuinty. ''I know that for these communities, the land and waters of their traditional territory is their life, their livelihood and the future of their children.''

While McGuinty has said that it's time for the mining act to be reformed, the government has offered no details of its priorities. Gravelle spokesman Anne-Marie Flanagan said the government is carrying out full consultation with affected stakeholders.

''I can't give you any timetable,'' she said. Asked whether an end to the free-entry system is under study, she added, ''I can't get into speculation of what the changes might be.''

Anna Baggio, of CPAWS Wildlands League, said talk of reviewing the mining act is meaningless unless free entry is replaced by a permit system that enshrines the rights of aboriginal communities and landowners to say ''no'' and implements rules for development that protects the values of ecosystems prior to mineral tenure being handed out.

The government's inaction is evidence that the Liberals are afraid of a backlash from the mining industry, she said. But this is the time to show leadership because, if left unresolved, the jailing of leaders who stand in the way will continue.

''If you don't have the right to say no, you don't have any rights at all,'' Lovelace said.

In Ontario's booming mining sector, uncertainty rewards unprincipled behavior.

New Democratic Party leader Howard Hampton cited the case of a company that initiated talks with Neskantaga First Nation before staking a claim - only to be outflanked by a second company that staked the claim, cleared the land and obtained government approval.

Nevertheless, ministers like Gravelle and Bryant and their representatives insist that consultation is a necessary part of exploration.

All the while, First Nations such as Gull Bay, Webequie, Eabametoong and Marten Falls are coming forward to complain that claims are being staked without their knowledge or consent - unsurprisingly, since that's what the mining act sanctions.

The judges were careful not to tip their hand as to the rationale for overturning the harsh penalties - including fines as high as $25,000 in Lovelace's case - imposed by lower-court judges in Kingston and Thunder Bay. The reasons will be released later, they said.

The ruling will be important. The issues are critical to resource development and aboriginal self-determination - whether accommodation of the right to say no is implicit in the Ontario government's legal duty to First Nations, what weight should be given to aboriginal law, and whether there should be a check to the criminalization of protest.

One thing was clear. Ontario government lawyer Malliha Wilson, who supported release of the seven appellants, conceded under questioning by the judges that the six-month sentences bore no relation to the ''couple of weeks'' applied to previous first-time offenders in the context of political protest.

The judges zeroed in on the contrast between Wilson's statement that the government sees itself a conciliator and the position taken in January by Owen Young, the government lawyer at the sentencing hearing for the KI Six, who called for ''a financial penalty that hurts.''

''The word 'hurts' and the word 'reconciliation' are polar opposites,'' Justice James MacPherson pointed out.