Law Times

Law Times • November 14, 2011 Ring of Fire threatened by legal challenges and the black fl ies ride Harley Da- vidsons in the summer. Ironically, however, most of the C action is on Bay Street where some 30 per cent of the Toronto Stock Exchange comprises mining com- panies. Th at makes it a global fi nan- cial hub for the sector. Domestically, Queen's Park also plays a role, and the so-called Ring of Fire is about to become one of the most hotly debated mining de- velopments in years. Th at's because First Nations demands could stall the project despite provincial gov- ernment support. Th e Ring of Fire is a mining claim in the muskeg swamps of northern Ontario around Kenora and about 500 kilometres northeast of Th under Bay. A few years ago, Noront Resources Ltd. drilled some exploratory holes and found nickel, copper, platinum, palladium, and about 72 megatonnes of chromite ore, a material used to make stain- less steel. It's a globally signifi cant stash and in April 2010, the Liberal gov- ernment announced it would open up the development as part of an economic action plan for the north. With a provincial economy that has yet to catch fi re after the re- cession, the stimulus account all tapped out, and a crushing debt and operating defi cit, Ontario needs this kick-start, especially in the north. Th e Cliff s Natural Resources Inc. proposal could generate 1,300 jobs alone. With that kind of incentive, you'd think there would be roads under construction and shovels in the ground already. But not so fast, partner. Th e big question, one that's been brewing with every resource proposal, hydro dam, and pipeline project during the last 10 years, is whose land is this anyway? When is Crown land subservient to aboriginal rights? Already, there have been block- ades of equipment and as it sits now, there are a host of First Nations looking to hold up development until they get what they want. Th ey claim they have the power of veto because the development aff ects their hunting and fi shing rights and that beyond the duty to consult, they have the right to consent. To the pro-development forces, this is just another tactic to squeeze money from a project by threatening to block it or tie it up in lawsuits. At the heart of the issue is an On- tario Superior Court decision last August that upheld the position of a group of Ojibwa Indians who ar- gued an 1873 treaty protected their way of life. Th e Keewatin took action when the minister of natural resources is- sued logging permits in 1997, a move they say cast their rights aside. According to the court decision, the hunting and fi shing rights were sub- stantive and the province couldn't tamper with them. Th e upshot, some lawyers argue, is that First Nations can hold min- ing and resource development in Ontario at ransom because without ity folks think mining hap- pens in the sticks where it's cold and harsh in winter Inside Queen's Park By Ian Harvey their consent, they can fall back and claim a violation of their treaty rights. In reporting on the case, Vaso Maric and Murray Braithwaite at Fasken Martineau DuMoulin LLP noted things get more complicated when looking at the wording of various treaties, specifi cally Treaty 3, which was the basis of the Kee- watin decision, and Treaty 9, which applies on most of the Ring of Fire lands. "In assessing the likelihood of successful claims in respect of lands under Treaty No. 9, it is important to note a critical distinction in the wording of Treaty No. 3 versus Trea- ty No. 9," they wrote at the time of the decision. Th ey point to a clause that opens the door for the land to be "taken up for settlement, mining, lumbering or other purposes." Treaty 3 is diff erent, they note. "In Treaty No. 3, the clause clearly vests the power to take up lands in the federal government," they wrote. "In Treaty No. 9, the clause is not as specifi c as to who is authorized to take up lands under the treaty." Th ey expect an appeal. But in the interim, the war of words over the Ring of Fire is heating up and the road ahead is likely to be long and rut- ted with red tape and court actions. A group of nine northern Ontar- io First Nations applied to the Fed- eral Court this month to force the Canadian Environmental Assess- ment Agency to hold a joint process rather than a comprehensive review panel. It says the 8,000 aboriginals in the region about the size of Nova Scotia must have their say. Th e comprehensive study takes about a year and is more technical and based on written submissions. Th e joint review, a combination of both provincial and federal process- es, convenes local hearings. Th e message from First Nations, then, is clear: give us what we want or the development won't happen. What do they want? Th e work- ing model in resources development is to pay licensing or royalty fees and guarantee jobs and supply con- tracts for aboriginals. Th at's all well and good given that all Ontarians and Canadians should share in the wealth of our natural resources. But at what price will the de- velopment happen? How many of these claims are on native land? How many are not? Just because they're in the area, do they have the right to demand payment? Asserting rights is one thing, but surely no government should engage in negotiations under the threat of economic blackmail. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey @rogers.com. COMMENT Lawyer hoping for conservative new SCC judges BY SAM GOLDSTEIN For Law Times I t took a certain amount of arrogance for Liberal MP Irwin Cotler and the NDP's Joe Comartin to storm out of the parliamentary advisory panel on Su- preme Court appointments this summer. Cotler was outraged that Justice Min- ister Rob Nicholson had changed the Supreme Court selection process he set up when the Liberal party was in power. Reducing the total membership of the panel to fi ve by elim- inating outside legal experts would give the three Conservative MPs the majority vote on the six candidates — narrowed down from a much longer list of names — to recommend to the prime minister. For opponents of the Conservative Party of Canada, the change in member- ship was further proof of Prime Minis- ter Stephen Harper's secret agenda to stack Canada's top court with judges ideologically sympathetic to his plans for the country. For serious practitioners of the law, Comartin and Cotler's theatrics were amus- ing because, as any criminal lawyer can tell you, Liberal-appointed Supreme Court judges have emasculated the Charter of Rights and Freedoms. Perhaps a secret agen- da, then, is necessary if it means righting the imbalance between the interests of the individual and those of the state. What do I mean? Take a look at any of our Charter guarantees and see what Supreme Court judges have done with them over the last few years. In 2009, for example, Chief Justice Beverley McLachlin, an appointee of for- mer prime minister Jean Chrétien, led the charge in creating a new right of de- tention for police offi cers in R. v. Grant. An unelected, Liberal-appointed judge decided to expand police powers so they can stop you while you're walking down the street, question you, and pat you down. Th ey couldn't do that before. I would think the question of which powers police ought to have is a debate for Canadians, but the Supreme Court and the opposition MPs on the selection committee don't seem to agree. In that same decision, former prime minister Paul Martin's appointment, for- mer justice Louise Charron, weakened the public's right against unreasonable search and seizure. It used to be that the courts would throw out evidence such as breath or blood samples if authorities Editorial Correspondence FAILURE WITH JUSTICE SYSTEM Which people saw fault along the way? Th e lawyers and judges? Which people placed excessive trust in Charles Smith? Th e lawyers and judges? Th e justice system was put under a cloud as a direct result of the studious failure to ad- dress all that fault along the way. Th e only reason Smith caused all that harm is because lawyers and judges were too lazy to check prior adverse judicial comments and too lazy to discover that Canada off ered no specialist training in pediatric forensic pathology dur- ing the very years Smith was repeatedly qualifi ed as a specialist/expert witness in that very specialty. Clean up your own house before you take the measure of school boards and teachers. Comment on lawtimesnews.com by Brian about "School wrong to welcome Charles Smith." www.lawtimesnews.com Speaker's the pressure. Each decision, written or decided by Liberal-appointed judicial activists, has made Canada that much safer for the po- lice and prosecutors but not for the pub- lic. It's galling, then, to think that only the opposition parties know how to appoint judges. It's also appalling to see what the Liberal party's appointees have done. For- mer prime minister Pierre Trudeau, the author of the Charter, must be aghast. Th e real issue is that for the last 20 years of the Charter, our judges have en- gaged in judicial activism that at times has set social policy and therefore en- croached on the legislative function of Parliament. Judicial activism was per- missible, it would seem, as long as it was advancing the causes of special interest groups. Th e problem is that there's no way to know which direction judicial ac- tivism is going to take next. Certainly, the fi rst few years saw an ex- pansion of rights within the criminal law context that circumscribed the powers of prosecutors and police. Th is was a good thing given that the fundamental objec- tive of a criminal justice system is to avoid wrongful convictions caused by unscru- pulous police offi cers and Crown prosecu- tors with tunnel vision. Th e last few years have seen a retrenchment of those rights. Today's Supreme Court is inappropriately concerned with wrongful acquittals. Let's hope that justices Andromache Karakatsanis and Michael Moldaver turn out to be truly conservative judges who won't engage in judicial activism and will preserve what little is left of our Charter protections. Th ere's no doubt it would make Trudeau smile. Sam Goldstein practises criminal law in To- ronto. He can be reached at samgoldstein .ca or 416-927-1211. Corner didn't respect an accused's Charter rights. Th at's not the case anymore. Th e new test for precluding evidence makes it much easier for Crown prosecutors to convict a defendant even when the police haven't followed the law. In 2007, another Chrétien appointee, former justice Michel Bastarache, was part of a top court majority that decided that police could ignore a person's asser- tion of the right to silence. As a result, no matter how many times people tell a police interrogator that they don't want to speak, the offi cer can keep going un- til they crack under PAGE 7

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