Canadian Appeal Court: Jailing Indigenous Protesters ‘Too Harsh'

Justice--Colonial or Indigenous?
July 7, 2008

TORONTO — There was no reason to “bring down the hammer” on seven
aboriginals who were incarcerated and fined after protesting against
mining projects in their communities, the Ontario Court of Appeal ruled
Monday in calling the six-month sentences “too harsh.”

Six members of the Kitchenuhmaykoosib Inninuwug First Nation served
almost 10 weeks in jail, while Ardoch Algonquin First Nation leader Bob
Lovelace was jailed 14 weeks for contempt-of-court charges related to
blockades in areas north of Kingston and Thunder Bay, Ontario.

In late May, the Ontario Court of Appeal reduced their six-month
sentences to time served, and today it released its reasons for the
decision, saying imprisoning the protesters only magnified the
“estrangement of aboriginal peoples from the Canadian justice system.”

The court also dismissed the fines of between $10,000 and $25,000 the
protesters faced.

Mr. Lovelace said he was thrilled by the decision, which he hoped would
allay protesters' fears of being jailed when they rally or man blockades
for causes they believe in.

“I did do three-and-a-half months in jail, and that's three-and-a-half
months lost out of my life, but I guess if it brings some clarification
to aboriginal rights, that was time well spent,” Mr. Lovelace said.

“I think it's really significant because it says to people who have a
legitimate cause that when governments are not willing to meet their
obligations or their responsibilities – particularly with First Nations
people, but I think with citizens in general – then it's not the court's
responsibility to punish you. It's really their responsibility to uphold
the rule of law but also to do it in a just and reasonable way.”

The protesters had been trying to stop mining on their traditional lands
and complained the Ontario government had not consulted with the
communities before giving the companies the go-ahead to begin drilling.

A panel of three judges ruled the aboriginals' right to protest “cannot
simply be dismissed as illusory, flawed or weak,” and that Superior
Court Justice George Smith failed to consider their plight and handed
out sentences that were “too harsh.”

“That the court found it necessary to imprison the [protesters] simply
serves to emphasize the gulf between the dominant culture's sense of
justice and this First Nation's sense of justice,” the decision says.
“Imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system.”

The panel said the Supreme Court of Canada has ruled that judges must
take into account all available sanctions other than imprisonment
and give particular consideration to the circumstances of aboriginal offenders and the “unique systemic or background factors” that may have spurred their offences.

“[Judge Smith] focused exclusively on punishment and deterrence, both
specific and general,” the decision states. “He said nothing about
promoting reformation and rehabilitation of leaders of a First Nation

Mr. Lovelace said he was relieved the court waived the fines and also
found the protesters were entitled to their costs of the appeal.

“My faith in the Canadian justice system is strengthened,” he said.

Deputy Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation, which
represents 49 Ontario aboriginal communities, said the decision is
meaningful for all First Nations and leaders who are fighting to protect
their land.

“It's a good decision for communities to be able to say no, and they
won't be jailed for doing that,” he said.

But KI First Nation spokesman Sam McKay, who spent 10 weeks in jail,
said the news is promising but doesn't guarantee better relations with
the government.

“They've failed to recognize Supreme Court rulings that they could have
taken into consideration before putting us into jail, so will they want
to recognize this? That's the question.”

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