The Conversation by Dayna Nadine Scott 11 March 2018
Peawanuck is a Cree community in northern Ontario near the shores of Hudson Bay and the home community of the Weenusk First Nation. When I visited in February, caribou hides and animal furs hung in the yards, teepee smokehouses smouldered outside homes and snowmobiles pulled boxed sleighs to carry food harvested from the land.
Like many Indigenous communities across northern Ontario, Peawanuck is confronting the realities of a changing climate, increasing pressure from mining companies that want to extract minerals from their lands and new land-use planning regimes flowing from the province.
At the same time, Indigenous communities across the country are increasingly claiming their rights to free, prior and informed consent (FPIC) grounded in international law, in respect of decisions affecting their homelands. And both Canada and Ontario say they are ready to establish a “new relationship” with Indigenous peoples.
As part of a team of community-based researchers that includes Donna Ashamock (MoCreebec) and John Cutfeet (Kitchenuhmaykoosib Inninuwug), I flew to Peawanuck to learn about how land-use decisions are being made on the ground in the face of these pressures.
We spoke with community leaders, Band staff, youth and elders. The message from all of these encounters is that the people of Peawanuck are effective stewards and fierce defenders of their lands.
This community — like others — is having to make crucial decisions that will affect its ability to fulfill its roles as steward and defender in the future.
Contestation over the Far North Act
Under Ontario’s Far North Act, which came into effect in 2011, the province hoped to integrate planning towards its environmental, social and economic goals in the region. Conservation, for example, was a major driver as environmental groups recognize the value of the region as a carbon sink, and as crucial habitat for iconic species, such as Woodland Caribou. But the act was widely opposed by people in the North, including the Nishnawbe Aski Nation.
The act seems to have emerged — at least, in part — from the uncertainty over jurisdiction and consent that arose when the community of Kitchenuhmaykoosib Inninuwug (KI) “evicted” the exploration company, Platinex, from their territory in 2006.
KI reacted swiftly and with great conviction when it refused to allow the exploration company to carry out a drilling program authorized under Ontario’s Mining Act regime. KI challenged the authority of the province to send in an exploration company without community awareness and consent. This resulted in injunctions and contempt of court charges that culminated with the incarceration of five elected leaders and one community member. It also prompted an outpouring of support from across the country.
Jurisdiction to decide
The fallout from KI’s stance against Platinex, in combination with the resistance of the Ardoch Algonquin people, led to the long overdue revision of Ontario’s Mining Act.
These communities insisted they held the jurisdiction to decide what kinds of activities can be undertaken on their lands. Their persistence seems to have added urgency to resolving the long standing “land question” throughout Treaty 9 territory in Ontario. Indigenous peoples contest treaty interpretations that conclude that the land was ever surrendered or ceded to the Crown.
As the Far North Act is implemented across northern Ontario, it is becoming more and more clear that the regime is a central plank in Ontario’s attempt to remedy the uncertainties of jurisdiction that were exposed in the KI struggle.
Under the Act, communities are asked to create community-based land-use plans that map out in detail the historical and contemporary uses of various parts of their territories. They can designate areas of significant cultural value such as burial sites, waterways and travel routes to be protected, caribou migration routes and areas to be considered open for — or closed to — mineral exploration.
The invitation to engage in mapping is not controversial; many communities were doing this anyway. But, under the Far North Act, the community-based land-use plans must be jointly approved by the First Nation and the Ministry of Natural Resources and Forestry (MNRF). Once the final plan is approved, all decisions to authorize land-use activities must be “consistent with” the land-use designations specified in the plan.
And so here, it is the inherent jurisdiction over the lands and the authority to make decisions about contested land-uses that is at stake.
Communities have complex and nuanced mechanisms for authorizing various activities on the land that rely on their own laws: Different family groups have authority over different parts of the territory based on the locations of harvesting areas, traplines, hunting camps and cabins.
It comes from the creator
In Peawanuck, we heard about the protocols that exist in Cree law for allowing access to outsiders, for sharing and for managing conflict. A vast pool of knowledge resides in the elders about how those principles apply and where.
The ability to make decisions about how the land is used across their territory is an authority they have always exercised in practice, if not under Canadian law. When we asked elders in Peawanuck where they derive the authority to make decisions about land use in their territory, one responded: “The Creator gave it to us, to use … I will never forget the people who taught me that.”
Part of what the MNRF must hope to accomplish with the land-use planning exercise is to gain access to all of that knowledge — and then to bring the community’s authority to make decisions, its de facto governance of this land — under the MNRF’s jurisdiction.
And as a result, communities are confused. What are the consequences of not engaging in a land-use planning process under the Act? Some say the MNRF has told them that if they don’t produce a plan, one will be produced for them. Others say they fear that other communities’ interests will be prioritized over theirs.
Much of this is uncertain — but it is clear that funds to engage in the traditional land-use mapping exercise and for documenting the elders knowledge is available only to those Bands that agree to surrender to the MNRF process. (It is possible, however, for Bands to withdraw at the end of any of the prescribed five stages.) According to provincial law, any “development” would have to be approved by minister’s order if no community-based land-use plan is in place.
“It is the people’s land”
To the community elders, it feels like just the latest in a long string of sharp dealings that the “white man” has engaged in to rob them of their homelands.
As one elder said, “It is our land, and we will keep it for our future grandchildren.” To do so, communities will need to stand strong against this land-use planning process. It is a prime example of what socio-legal scholar Shiri Pasternak describes in her recent book Grounded Authority: “To replace the sources of Indigenous law with a delegated authority of the Crown through the machinery of state jurisdiction.”
In Peawanuck, it is obvious that the deep knowledge and respect for the land, and the authority to govern it, should go together. The message we heard loud and clear was, “It is the people’s land.”
We will never forget the people who taught us that.
The author acknowledges the contributions of collaborators Donna Ashamock and John Cutfeet to the analysis presented here.
Dayna Nadine Scott is an Associate Professor of Law and Environmental Studies, specializing in environmental law and justice, York University