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Ontario presents plan of permanent protection

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TORONTO - The Ontario government has unveiled an ambitious plan for permanent protection from development of half of its share of the boreal forest - some 87,000 square miles, a landmass the size of the United Kingdom.

The plan, announced July 14 by Premier Dalton McGuinty, is aimed at fighting global warming and preserving endangered species.

It will also address some key issues that have ratcheted up tension between the province and First Nations communities in recent years - failure to consult before logging or other development, an antiquated mining act, and desperate indigenous poverty in the midst of frenzied mineral exploration.

The jailing earlier this year of seven leaders - Ardoch Algonquin elder Bob Lovelace from eastern Ontario, Kitchenuhmaykoosib Inninuwug Chief Donnie Morris and five others from northern Ontario - for trying to stop mineral exploration on territory subject to land claims signaled a new low in Ontario's dealings with First Nations.

The seven - sentenced to six months in jail for refusing to promise to abide by an injunction prohibiting protest at the exploration site - were freed May 28 by the Ontario Court of Appeal. The court also canceled hefty fines; Lovelace was to pay $25,000, Ardoch Algonquin Chief Paula Sherman $15,000 and the Ardoch community $10,000.

The appeals court didn't release its decision until July 7. Justice James MacPherson wrote that the sentences were set aside because they were too harsh, and identified a number of problems that led to the dispute, in particular:

"The use of incarceration as the first response to breach of the injunction ''dramatically marginalizes the significance of aboriginal law and aboriginal rights.''

"If a requested injunction intends to create a protest-free zone for ''contentious private activity,'' the court must be very careful to ensure that the Crown has ''fully and faithfully'' discharged its duty to consult.

"The Ontario Mining Act, ''a remarkably sweeping law'' allowing anyone with a prospector's license to stake a claim on Crown land with no regard to aboriginal claims or interests, created the problem that lies at the heart of the case. The exploration company's actions are legal under the act, but ''the appellants' response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of section 35 of the Constitution Act, 1982, and several recent decisions of the Supreme Court of Canada.''

What MacPherson didn't say was that it took hundreds of thousands of dollars for KI and the Ardoch Algonquins to defend themselves. For almost two years, government lawyer Owen Young was steadfast in his defense of the mining act, a position that changed only when the matter was before the appeal court and Young had departed (paradoxically, to take the position of chief counsel for Judge Harry Laforme's Truth and Reconciliation Commission on residential schools).

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Well, the act will be reformed and modernized, McGuinty announced.

''We will ensure that our mining industry remains strong - but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private landowners and aboriginal communities. The Ontario government believes exploration and mine development should only take place following early consultation and accommodation of aboriginal communities.''

It will be interesting to see whether the reformed Ontario approach will have any effect on another high-stakes legal battle in which three Grassy Narrows trappers are suing the province for the effects of clearcutting on their treaty rights. The case, involving complex constitutional issues, has been turned into a costly burden for the community by government legal maneuvering. It's to be heard in September 2009.

(Grassy Narrows supporters recently claimed victory after financially strapped AbitibiBowater gave up its license to log the surrounding Whiskey Jack Forest, following a widely publicized marketing campaign. The province had just signed an agreement with the community for a forestry pilot project integrating traditional uses. But community leaders remain vigilant: there are no plans to dismantle a blockade that's been in place for more than five years, as the license could be handed to another company.)

As part of his new initiative, McGuinty undertook to identify an interconnected network of conservation lands that will be permanently protected in the Far North, which comprises 43 percent of Ontario's landmass but is inhabited by only 24,000 people in 36 communities, most of them aboriginal.

Activity on the protected lands will be restricted to tourism and traditional aboriginal uses, McGuinty said. ''Preserving these lands also protects the core cultural connection of the aboriginal people who live there - their connection to the land, clean water and abundant hunting and fishing.''

Presently the area has two operating mines, but no industrial logging has been allowed north of the 51st parallel. New mines or logging will require community land-use plans supported by local aboriginal communities. A planning process will involve First Nation and Metis communities, northerners, the resource sector and scientists. A broad framework is to be completed by 2009; the entire process will take 10 to 15 years, the government says.

Finally, there's a long-awaited promise for a new system of resource benefits sharing to ensure aboriginal communities benefit economically from development in their territory.

The news was welcomed by Grand Chief Stan Beardy of Nishnawbe Aski Nation, which represents 49 northern communities, who has been a forceful proponent of First Nations involvement in resource development.''

''As First Nations people, we are not against resource development, but we want to be consulted and we want to have meaningful input into the decision-making process,'' he said. ''It is critical that any development of natural resources in the Far North must respect aboriginal and treaty rights while supporting an environmentally sustainable economic future for our people.''