KI leaders can’t be 'martyrs': Platinex

In continually turning down Platinex’s requests to drill 24, five-centimetre holes on its traditional territory, Kitchenuhmaykoosib has also rejected what the company calls the richest memorandum of understanding ever offered by a Canadian junior mining firm.

February 7, 2008: Volume 35 #3

The offer included $1 million in cash, shares or warrants in the company worth another $250,000 or more and a role for a Kitchenuhmaykoosib band member or leader on the company’s board of directors, in exchange for access to the land. Details of the offer were revealed through questions posed to Kitchenuhmaykoosib Chief Donny Morris by Platinex lawyer Neal Smitheman Jan. 25 in Thunder Bay’s Superior Court of Justice.

While the community describes itself as struggling financially, it doesn’t have to be, Smitheman said.

“The leaders are responsible for making them even more poor,” Smitheman said, suggesting KI leaders didn’t fully understand the memorandum of understanding offer. “This was the most generous memorandum of understanding in the history of junior mining companies. Are we just haggling about the price?”

Morris denied that was the case.

“It’s not about money right now – it’s about our land,” Morris said while on the witness stand Jan. 25 explaining why he and other community members broke a court order and found themselves convicted of contempt Dec. 7.

Morris, KI, Deputy Chief Jack McKay, Head Coun. Cecilia Begg, councillors Sam McKay and Darryl Sainnawap, former councillors John Cutfeet, Evelyn Quequish and Enus McKay, and band employee Bruce Sakakeep were found in contempt of Superior Court for disobeying  the order.

The order gave Platinex Inc. the OK to begin drilling for platinum and related archaeological pre-screening activity in the Big Trout Lake area.

Morris said he has no choice but to “protect the land.”

The community and its members have long stood by the belief they are observing and protecting Aboriginal and treaty rights to proper and adequate consultation and accommodation prior to mining exploration or development on Kitchenuhmaykoosib Inninuwug (KI) traditional territory, Morris said.

If drilling is allowed to proceed and the results are favourable for the company, the mining claims could be purchased by another company and that would bring the site, about 40 kilometres away from the First Nation, one step closer to a full-scale mine. That’s something Morris doesn’t want to see happen yet.

“The claims will go on the market and some other company will buy it and proceed,” Morris said matter-of-factly during his nearly four hours on the witness stand. “It will make it more difficult for us to stop the process (later).

“These two inch holes will be a bigger issue later on,” Morris said as he wiped his glasses with a facial tissue.

As Smitheman turned his back on the chief and walked back to a podium with a microphone, Morris held out and waved the white tissue in a symbolic gesture of surrender as he grinned toward the body of the courtroom.

Smitheman pressed Morris to explain his position on development.

“It’s a decision for the next generation membership to make,” Morris said. “It’s out of the individual (members’) hands. Now it’s a community issue.”

Smitheman said he wished the community had been “up front” about its intentions all through the court case.
“Platinex and Ontario have been hoodwinked by KI,” Smitheman said, adding time and money has been wasted with negotiations the community never intended to complete.

During the daylong hearing in court, several themes were paramount: KI’s moratorium against exploration and referendum against Platinex drilling, the co-existence of Aboriginal and Canadian law, and frustration by all sides at where they find themselves.

Last year, a referendum was held in the community. Morris described it as a simple yes or no vote on whether to allow drilling. While he couldn’t provide the exact result, a number “significantly larger” than a simple majority voted against drilling.

“Our community position is no drilling,” Morris said. “We don’t want the environment disturbed.”

Chief and council in Kitchenuhmaykoosib enacted a moratorium on resource development in 2000. It was reaffirmed in October 2005. The moratorium is the basis for the community’s actions, Morris said.

“It has given us the mandate to still block Platinex from drilling,” he said.

‘Leave us to our own destiny’

KI has barely participated in related court hearings since it fired its former legal team Oct. 25 because it could no longer afford its cost.

The community has accumulated debt of more than $652,000 from court-related costs.

“It’s difficult to run our programs,” Morris said. “We’re running a deficit.”

In a community of about 800, where overcrowding in homes is already an issue, the budget for housing was eliminated last year to help offset court costs.

From the moment Smitheman began his cross-examination of Morris late in the morning, the tone changed in the courtroom.

Morris answered one of Smitheman’s first questions about treaty rights in his Native tongue of Oji-Cree, leaving the lawyer standing in stunned silence.

“We did not understand (the Treaty 9 commissioners) and what they said,” Morris said of the 1929 agreement. “They left no documents behind.”

Morris repeated his answer in English moments later, having made his point about communication and language.

There were several other blunt exchanges between the pair.

When Smitheman pressed Morris to remember a particular date, meeting and the councillors in attendance, the chief had enough.

“I’m getting tired of this runaround,” Morris said, much to the delight of nearly 100 community supporters who packed the courtroom.

When the issue of the actual contempt and circumstances of it arose, the pair butted heads again.

“I bet you would have complied if the judge had ruled in your favour,” Smitheman said.

When asked about the possibility of future contempts, Morris said if he’s jailed for contempt, upon his release he will continue to disrupt Platinex’s attempts to drill.

“Leave us to our own destiny,” Morris said.

If Platinex tries to bring a drill onto the property, “I will block,” Morris said, answering before Smitheman’s question was even fully out of his mouth.

Morris said it’s unlikely an agreement between the mining company and KI will be reached while he’s chief because “things have soured with Platinex.”

Smitheman suggested KI hasn’t soured so much as the community has “radically shifted” its position on development.

“The only change is KI lost the case … and won’t comply with the court process,” Smitheman said. “KI demands that others respect the courts when they themselves don’t. The TLE (treaty land entitlement) claim is being used as a form of extortion. This has gone from an isolated incident to a large problem. Failure to respect the rule of law is not acceptable.”

However, Morris explained the TLE claim should be dealt with first so the community can properly identify the land it is seeking.

Morris fears if development has already begun on the land Platinex wants to drill, the community is less likely to receive that land if its claim is accepted.

‘No remorse’

Smitheman said when the community sought support for its cause from Nishnawbe Aski Nation and other First Nations, it was a call to arms.

“The contemptors deserve no sympathy from this court,” Smitheman said. “These persons have shown no remorse.”

He said deterrence in sentencing is key.

“We need to prevent the contemptors from doing this again,” Smitheman said. “We need to prevent others from wanting to.”

That won’t be a problem for two of the contemptors.

Evelyn Quequish and Enus McKay decided to obey the court and bowed out.

During the nearly eight-hour court hearing, Quequish and Enus McKay both purged their contempt charges by agreeing to no longer obstruct Platinex.

Chris Reid, the lawyer representing both former councillors and all the other defendants except Cutfeet, explained their circumstances.

“These are people that were minor players in the (Sept. 24) protest (at the airport),” Reid said. “(Quequish) cannot afford to participate any further.”

However, Quequish, a foster parent who doesn’t want to risk a criminal record, still fully supports community leadership’s decisions to continue the fight.

Through Reid, Enus McKay, a community pastor, said the conflict is at odds with his religious beliefs and he can no longer participate.

With Platinex not seeking sanctions against the pair, it appears they won’t face penalties and their convictions will be wiped off the books.

“We’re not interested in retribution (against the community members),” Smitheman said.

A third contemptor failed to attend court. A warrant for Sakakeep’s arrest was made to be issued with discretion for his Feb. 25 appearance.

Should he not contact the court, he could be arrested in the days leading up to court and brought to Thunder Bay by police.

Cutfeet, a former councillor for the community who ran for chief in November, sought an adjournment to Feb. 25 to consider his options.

Platinex did not object.

”I can’t help but agree Mr. Cutfeet is entitled to his day in court,” said Smitheman, adding the finding of guilt on the contempt charge could be struck from the record depending on Cutfeet’s decision.

In terms of penalty for the remaining contemptors, Smitheman first suggested indefinite jail terms.

Moratorium forced leaders’ contempt

When he could cite no legal precedent for Justice Patrick Smith, the idea was quickly dropped.

Ultimately, Smitheman left the decision up to the Smith. However, he also suggested a daily or weekly fine until the contemptors agreed not to interfere with the drilling.

“There has to be sting,” Smitheman said. “We’re not about to make a martyr out of Chief Morris (by sending him to jail). Spending time in jail will accomplish nothing for Platinex.”

However, Morris prefers jail. Fines are not realistic for the chief or the community, he said.

“I’m willing to go to jail. I’m not a rich guy. I can’t afford fines.

“I would really like you to consider jail time,” Morris added, turning his body in the witness stand to look directly at Smith.

But Morris would not promise to obey the court after his release from jail, should he be incarcerated for the contempt charge.

“I have to respect the court’s order (for sentencing) but I can’t agree to (stop being in contempt),” he said.

Smitheman is also seeking punitive damages of nearly $92,000, an amount that is likely to rise.

It accounts for the cost of the cost of travel by Platinex representatives to KI Sept. 24, when they were met with peaceful resistance at the community’s airport, and the cost of the contempt court motions through Jan. 18.

During his submission to the court, Smitheman also asked that: the log structure Morris built at Nemeigusabins Lake be decommissioned; a two-kilometre buffer zone around the drill site be enacted; and drilling be allowed to proceed immediately, without archaeological screening, in “non-sensitive” areas not known to have burial grounds.

“The sensitive areas are nowhere near were the proposed drilling will occur,” Smitheman said. “We can’t do archaeological pre-screening in the snow.”

‘Confusion in this case’

Owen Young, representing Ontario’s interests in the case, agreed the contemptors must face penalty for their actions, but suggested jail isn’t the appropriate deterrent.

He explained the court can’t crush the spirit of people wanting change and self-help, but the people’s actions must fall into the existing law structure.

Young compared the community’s actions to the civil rights movement of the 1950s and 1960s in the southern United States, explaining the actions of those people are looked upon much differently now than 50 years ago.

He suggested the court be aware of how future generations could look back at these acts of civil disobedience.

“We have to consider what’s really the issue here,” Young said. “The moratorium imposed by KI represents law that applies in their territory. There’s confusion in this case because (of the law of the land and Canadian law).

“The moratorium by the people bound Chief Morris to contempt the court.”

Reid reminded the court KI never wanted to be in the court in the first place.

“KI did not choose to be involved in the court process,” he said. “The community responded to Platinex.”

Whether perception or reality, the community believes its rights are treated as subordinate to Ontario’s Mining Act and it’s free-entry system, which allows staking of any Crown land, Reid said. The Mining Act is unconstitutional, he added, since it does not require proper consultations recent Supreme Court decisions deem necessary.

“The rule of law always seems unfair to First Nations,” Reid said. “Ontario goes to the wall to defend the system for its partners – the mining companies – but KI’s law is viewed as divisive and destructive.”

Young suggested financial penalties would be “persuasively substantial.”

He said a fixed amount, broken into monthly payments over a year, would show the contemptors they don’t have a licence to continue illegal action.

After a year is up, if there haven’t been any reoccurrences, that money could even be paid back out to the community for a special project, Young said.

Smitheman scoffed at the idea, saying if the money would be paid to anyone, it should be Platinex for suffering tremendous financial loss because of the community members’ actions.

In his submissions to the court, Reid called for low-end jail terms, starting with one day. The terms could rise with subsequent acts of contempt, he said.

“One day is laughable,” Smitheman said, suggesting instead six to nine months for the first offence for community leaders, including Morris and Jack McKay.

By the end of the court day, Reid found himself in an awkward position.

“For the first time in my career, I find myself asking the court to send my clients to jail,” Reid quipped.

The matter will return to the court Feb. 25 at 2 p.m. so a date for sentencing can be set. That date is likely to fall in early April, although all parties hope to find an earlier date.

Outside the courthouse Jan. 25, nearly 100 people gathered with a drum, protest signs and propane heaters.

Students from Lakehead University and Dennis Franklin Cromarty High School, chiefs from throughout the Nishnawbe Aski Nation region and others gathered inside and outside the court alongside nearly a dozen uniformed and plain-clothes police officers.

Among those in attended was NAN Grand Chief Stan Beardy who made two passionate speeches from the steps of the courthouse.

“In order to continue peaceful co-existence, the court must uphold the treaties,” Beardy said. “The decision in this case will alter Canadian history. If it is not resolved, we will expect further conflict.”