ARTSSCI 1C03: Inquiry - Global Challenges
Imagine you find out one day that a mining company has staked land that your ancestors have always traditionally lived on for mining. That is, the company has marked out an area on your land for mining and successfully applied for an exploration permit. Imagine also that this mining goes against your traditional values. How might you respond? Recently, such conflict has surged over mineral extraction in Ontario. The case of Ardoch Algonquin First Nation (AAFN) v. Frontenac Corp. illustrates the key disagreements.
The AAFN are an Anishinabek community who have traditionally occupied the Madawaska, Mississippi, and Rideau watersheds (1). Their people have lived alongside the Ottawa River for thousands of years, attune to the ebbs and flows of the land (2).
In 2007, AAFN were notified that Frontenac Corp. had staked their traditional, unceded lands for uranium mining (3). AAFN saw this development as unlawful, and protestors soon blocked access to the staked area, Sharbot lake (4). According to AAFN co-chief Paula Sherman, the Ontario government lacked the jurisdiction to lease an exploration permit on traditional Algonquin land, and furthermore, the uranium exploration went against Algonquin Law (5). Frontenac Corp., a mining company, filed an injunction with the Ontario Superior Court calling for the removal of protesters (6). AAFN chose not to participate in injunction proceedings––they viewed the conflict as being between themselves and the Ontario government, explaining that “the provincial government did not fulfill its duty to consult [them] about an exploration project that it had approved.” (7). The court granted the injunction, which AAFN disregarded, causing Frontenac Corp. to initiate civil contempt proceedings (8).The civil contempt application sparked a twelve week negotiation, which failed; AAFN walked away. In an interview, Chief Sherman explained AAFN’s frustration:
Ontario insisted that the talks should begin from the point of view that staking had already occurred and the only thing that needed to be discussed was where the hold would be . . . From our position, this was not consultation at all (9).
Frontenac thus resumed its contempt motion. Ontario found AAFN defendants guilty of disobeying court rule and sentenced the co-chiefs to six months in jail (10).
Hence, Ontario’s “non-recognition” (11) of AAFN’s legitimacy played a key role in escalating the conflict. Throughout, AAFN objected by citing Algonquin law, but these objections were not recognized and ultimately deemed criminal by the government. The Ontario government’s non- recognition of Algonquin law stems from the land ethic underlying its land-use laws. Ontario’s land ethic, I argue, is fundamentally at odds with that of the land ethic underlying Algonquin land- use laws.
I follow legal scholar Estair Van Wagner in my definition of “land-use law” as the “regimes that govern how land can be owned, used, and managed.” (12). I draw on the work of Aaron Mills, an Anishinaabe legal scholar, to support my notion of a land ethic that underlies a system of laws. Mills speaks of the “lifeworlds” beneath all laws. “Lifeworld,” is “the ontological, epistemological, and cosmological framework through which the world appears to a people.” (13). He argues that society upholds this value-imbuing framework through its legal system, and thus lifeworlds underly all law, not just the laws of the Indigenous peoples (14). I use Mills’ “lifeworlds” theory to justify my search for the underlying land ethic, or “land lifeworld,” implied by the land- use laws of the Ardoch Algonquin and the Ontario government.
Ardoch Algonquin: Minopimàdiziwin
The Ardoch Algonquin are a member of the Anishinaabe family, so in order to understand the land ethic underlying Ardoch Algonquin land-use law, I first situate their law within Anishinabek law. John Borrows distinguishes between “sacred” and “natural” Anishinabek law. According to Borrows, “sacred law” describes those practices that emanate from creation stories (15). Sacred laws are afforded the “highest respect” in the Anishinabek legal order, as “they contain instructions about how all beings should relate to specific territories.” (16). Conversely, practices that come from “observation of the physical world” fall under “natural law.” (17). Borrows ascribes great weight to natural law as well, pointing to the serious repercussions of breaching natural law:
If the Anishinabek do not honour and respect their promises, relations and environments, the eventual consequence is that these resources will disappear. When these resources are gone, no matter what they are, the people will no longer be able to sustain themselves. (18).
Although the two laws seem distinct, they are not mutually exclusive. Some of AAFN’s principles emerge from both. For instance, the principle of minopimàdiziwin, which guided AAFN during the uranium conflict, relies on both natural and sacred law.19 It draws from natural law because it advocates for the creation of a reciprocal relationship with the land to “achieve balance with nature.” (20). One retired AAFN chief demonstrates minopimàdiziwin’s natural basis:
You can learn a lot about how to treat the land and the water by watching the beaver. They know how to create balance around them. Even though they cut down trees and flood some of the landscape, their presence in the forest creates balance, harmony, and abundance for a great variety of both water and land species, giving us a model for how to act within our homeland. (21).
Yet minopimàdiziwin also stems from sacred law, which Robert Lovelace, elected co-chief of AAFN, demonstrates. Lovelace argues that minopimàdiziwin emerged from the Ardoch Algonquin creation story, in which all beings “were created here to carry out particular and specific responsibilities, and we cannot interfere with them.” (22). Since it is both natural and sacred, under Borrows’ framework, minopimàdiziwin invokes the highest respect and places the greatest duty on its followers.
Mills observes that “for Indigenous peoples, lifeworld is law.” (23). That is, for Indigenous peoples, their code of ethics serves also as their code of law. Thus, the principle of minopimàdiziwin is both a law and a land ethic. AAFN co-chief Paula Sherman even translates it as “living the Good life.” (24). Ardoch Algonquin land-use law is therefore a land ethic that requires “living the Good life,” or in other words, requires living in respectful balance with all created beings, human and beyond-human, that make up the sacred community. (25). In the lifeworld of minopimàdiziwin, the ‘land’ is not an object to be used for human ends, but a member of the community who demands the highest respect.
Underlying Land Ethic of Ontario Land-Use Law
While Anishinabek law is a land ethic, Ontario law attempts to appear morally neutral, so its connection to a land ethic is not as explicit. According to Van Wagner, Ontario follows land-use law that prioritizes an “ownership relation” to land as property.26 The prioritization of land as property reflects an underlying land ethic that can be traced back to the origins of Anglo-Canadian property law.
Canadian property law is “grounded in the English system of property ownership.” (27) Bruce Ziff argues that British loyalists who settled in upper Canada adopted English property law because of a “resolute confidence in the superiority of English political institutions.” (28) English property law, in turn, was heavily shaped by the Enclosure Acts. These were legal processes whereby previously common land became private property (29). Scholar Margaret Davies argues that Enclosure Acts were grounded in Lockean property theory (30). Hence Locke’s theoretical justification of enclosure contains a founding land ethic of Canadian property law.
Locke provides a theoretical grounding for property in chapter five, book II of his Two Treatises on Government. He begins by noting that since “every man has a ‘property’ in his own ‘person’ . . . The ‘labour’ of his body . . . [is] properly his.” (31). From this, Locke deduces, “whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it . . . and thereby makes it his property.” (32). Before this process, i.e., while still common, the land has no value: “ . . . labour makes the far greatest part of the value [emphasis from original] of things we enjoy in this World: And the ground which produces the materials, is scarce to be reckon’d in.” (33). For Locke, not only is uncultivated land worthless, but cultivating land is a God-given right. God meant humans to use land for “the greatest conveniences of life they were capable to draw from it . . . He gave it to the use of the industrious.” (34). Land, according to Locke, exists to be exploited, and thus ought to be made into property through industrious labour.
This Lockean land ethic is diametrically opposed to the Algonquian land ethic defined by minopimàdiziwin. For Locke, land has no intrinsic value––God gave it to man to exploit and thereby bestow value upon. In contrast, minopimàdiziwin gives Algonquins a sacred duty to respect and uphold the intrinsic value and flourishing of the natural world. The Lockean land ethic still underlies land-use law in Ontario today, as can be seen in the implicit biases reflected in such key provincial documents regulating land use as the Aggregate Resources Act (ARA), the Ontario Mining Act (OMA), and the Provincial Policy Statement (PPS). The first two Acts are key in mineral extraction conflicts, while the PPS regulates all provincial land-use decision making.
The ARA’s purpose is “to provide for the management of the aggregate resources of Ontario.” (35) “Aggregate” refers to rocks and minerals (36). The Act defines “management” as the “identification, orderly development and protection of the aggregate resources of Ontario.” (37). The ARA’s use of the word “protection” seems at first ambiguous. “Protection” of aggregate resources could mean either the environmental conservation of aggregate resources, or the protection of aggregate resources from any activity that would hinder development. The latter is most likely the intended meaning, as it aligns with the ARA’s development-centered interpretation of “protection,” so centered because it must align with the PPS. Thus, the ARA’s definition of “management” regarding aggregate resources, and subsequently its interpretation of “protection,” prioritizes an exploitative relation with land, perpetuating the Lockean land ethic.
Carter-Whitney and Duncan argue that the Ontario Mining Act sets up a “free-entry system” driven by the prospector, someone who searches for mineral deposits (38) They note four main characteristics of the Act:
Right of prospectors to enter lands containing Crown-owned minerals;
Right of prospectors to acquire mineral exploration rights;
Exclusive right of claim holder to carry out further exploration within claimed area;
Right of claim holder to obtain mining lease (39).
Noticeably absent from the Act is any consideration for the rights of other significant parties––like the Indigenous peoples as stewards of the land, or the land itself––in mining decisions. This prioritization of prospector rights aligns with Locke’s theory of the legitimate ownership of land being justified by industrious labour. The view of land as property for exploitation is further evidenced by the exemption of mining activities from Ontario’s Environmental Assessment Act (41). Not including mining activity within the EAA implies Ontario views land as unworthy of environmental protection, and therefore not valuable in and of itself.
All land-use decisions in Ontario must be consistent with the Provincial Policy Statement (PPS). Policy 220.127.116.11 states: “Demonstration of need for mineral aggregate resources, including any type of supply/demand analysis, shall not be required.” (42). Because justification of the need for minerals, and therefore also development, is not required, extraction becomes the default land use put forward by the PPS. Extraction is, in other words, a land-use ‘good’ within the PPS.
Policy 18.104.22.168 of the PPS states: “Mineral aggregate operations shall be protected from development and activities that would preclude or hinder their expansion.” (43) As noted above, the ARA articulates its purpose as being to “protect” aggregate resources. Policy 22.214.171.124 clarifies exactly what that protection of resources entails. Protection is not for the sustainability of the resources; it is for the sustainability of always-expanding development. The land ethic implied by the PPS is a duty to ensure that the “good” land-use, i.e. development, is allowed to flourish.
Yet the PPS is not so straightforwardly Lockean as the above policies would imply; the Wise Use section of the PPS appears to make space for ecologically protective land-use. Policy 2.1.5.e, which deals with “natural heritage”––defined as “the long term ecological function and biodiversity of natural heritage systems” formed in “settlement areas, rural areas, and prime agricultural areas”––declares “Development and site alteration shall not be permitted in significant areas [emphasis in original].” (44). However, closer examination of the term “significant” reveals that this gesture toward stewardship is empty. The PPS defines a “significant area” as “an area identified as provincially significant by the Ontario Ministry of Natural Resources using evaluation procedures established by the Province, as amended from time to time.” (45). Unlike prior sections of the PPS that demand mineral resources be protected for development, the Wise Use section has loop-hole terms like “significant” that permit the Ontario government to amend its evaluations at will. This implies a land ethic in which the good of extraction is absolute, whereas the good of stewardship is contingent upon interpretation.
The Role of Opposing Land Ethics in the Land-Use Conflict
Returning to the case of AAFN v. Frontenac corp., the actions of the Ontario government and AAFN align with their respective land ethics. The principle of minopimàdiziwin gives its followers the sacred duty to maintain respectful relations with all beings in the community, including the environment. As articulated by AAFN’s leaders, minopimàdiziwin guided their actions throughout the case. After consulting Algonquin law, AAFN concluded that uranium exploration was unlawful (46). AAFN’s refusal to disband their blockade indicated their absolute stance against any action that opposed minopimàdiziwin, the fundamental land lifeworld that underlies the highest governing principle of their laws. AAFN withdrew from negotiations because of their absolutism––they would not be swayed from their lawful duty (47). During Chief Lovelace’s testimony in the contempt proceedings, he invoked Algonquin law: “I want to obey Canadian law but Algonquin law instructs me that I must preserve Creation. I must follow Algonquin law.” (48). Lovelace’s testimony captures how opposing land ethics underlying land use laws lead to conflict in land use decisions.
During the second stage of injunction proceedings, the judge must decide whether the plaintiff would suffer irreparable harm if the injunction is not granted (49). Judge Cunningham ruled that irreparable harm would be suffered by Frontenac Corp., justifying his decision as follows: “The interference with property rights such as the current blockade and associated trespass . . . by its very nature, gives rise to irreparable harm . . . [W]ithout injunctive relief the plaintiff will be out of business.” (50). Judge Cunningham thus viewed harm to property rights which hinder economic growth as constituting grave harm. His decision aligns with the Lockean land ethic, where property is justified by industrious labour on the land, so any hindrance to the fruits of labour, namely economic profit, would constitute grave harm.
The third stage of injunction proceedings is the balance of convenience, wherein the judge must weigh the harms and benefits suffered by both parties. Here, Judge Cunningham’s actions also reflected the Lockean land ethic. He determined that the financial harm Frontenac would suffer if the injunction was not granted was the only harm worth considering. He justified his conclusion thusly: “I cannot imagine any situation where the illegal blockading of access to someone who has a legal right of entry would ever be justified.” (51).
Judge Cunningham could only recognize the injustice done to the property rights, in this case legal right of entry, of the permit holder; he could not recognize the legitimate existence of more-than-ownership relations to the land, such as AAFN’s sacred stewardship duty to their unceded lands. As Judge Cunningham stated: “There is precious little evidence of potential adverse effects upon the traditional practices . . . There is virtually nothing on the record before me.” (52). His non-recognition aligns with the Lockean theory of property, where the only legitimate land relation is that of economically productive exploitation, without which the land is worthless. The Anglo- Canadian, Lockean-influenced land ethic––which shapes the legal framework Judge Cunningham used to make this land rights decision––favours industry and profit over sacred stewardship and the intrinsic value of land. Consequently, he could not recognize the irreparable harm done to AAFN.
The results of AAFN v. Frontenac corp. demonstrate the need for just negotiation in land- conflicts between Indigenous peoples and the Ontario government. The Ontario government must broaden its conception of appropriate land-use––beyond ownership-exploitative relations––to recognize the legitimacy of holding a reciprocal relationship with Nature. As an intrinsically valuable member of the community, Nature deserves the highest respect; this respect manifests as rights in the legal system. Though such a move may seem difficult, there have been some encouraging steps made in New Zealand, where the Whanganui River is a legal person with trustees from the Whanganui iwi (53).
However, asserting that Ontario recognize the natural world as an intrinsically valuable member of the justice community with rights gives rise to difficulties, both theoretical and practical. On a theoretical level, many justice theorists object to the plausibility of conceptualizing Nature as a member of the community of justice, since Nature does not satisfy membership requirements. John Rawls defined justice as the principle governing how to best distribute goods in society (54). He argued it was incomprehensible to extend the notion of justice to ecosystems, as we cannot “extend the contract doctrine so as to include them in a natural way.” (55).
Even if we can see land as deserving of rights, untenable consequences follow when we consider pragmatic land-uses like harvesting land for energy. If the land is intrinsically valuable, that is, if its value stems not from its usefulness to humans but from its own being, and is thus inherently worthy of respect, then it follows that it has an absolutely inalienable right to joyfully continue “being” in the fullest. Such being would supersede all human energy-harvesting needs, as harvesting would necessarily diminish the flourishing of the land’s being. This is clearly absurd.
I would argue that the issue is one of degree. Humans can ethically violate the land’s inalienable right to flourish, but only when people’s inalienable right to life requires it.
Furthermore, even under those extenuating conditions, humans must recognize the land has a right to flourish and in harvesting energy we are violating that right. Additionally, we should strive to harvest energy as respectfully as possible, that is, to give back to the land after harvesting. One might object to this response, arguing that prioritizing humanity’s right to life when it conflicts with the land’s right to flourish contradicts my original position on Nature’s intrinsic value. I would counter by pointing out that human interests are usually best served when the land is permitted to flourish, so in reality a situation where the two conflict is rare.
Recent scholarship on Environmental Justice has begun to address the theoretical issue. Originally concerned with the distribution of environmental harms among persons, scholars like Martha Nussbaum have expanded the domain of environmental justice from a mere distributive approach to a broader capabilities approach (58). A just action is no longer merely one that distributes goods fairly amongst persons, but one that ensures the realization of the capacities necessary for individuals to lead fulfilling lives. Theorists have noted that the concept of fully actualized potential can be extended from a person to an ecosystem, and have used the capabilities approach to help shift from an anthropocentric understanding of justice to one that extends to the beyond- human world (59).
This shift aligns with Anishinaabe scholarship on justice, which “considers relationships not only among people but also among all our relations.” (60). As Anishinaabe legal scholar Deborah McGregor explains: “It is about justice for all beings of Creation, not only because threats to their existence threaten ours, but because from an Aboriginal perspective justice among beings of Creation is life-affirming.” (61). I would add that it is not only life-affirming, but crucial in the age of unprecedented threats to the sustainability of the planet.
1 AAFN, www.aafna.ca
3 Gerry, “High-stakes battle.”
5 McCarney, “Indigenous Jurisdiction,” 92.
6 Gerry, “High-stakes battle.”
7 McCarney, “Indigenous Jurisdiction,” 92.
8 Gerry, “High-stakes battle.”
9 McCarney, “Indigenous jurisdiction,” 97.
10 Gerry, “High-stakes battle.”
11 I borrow the term “non-recognition” from Anishinaabe scholar John Borrows, who uses it in his book Canada’s Indigenous Constitution to refer to the Canadian government’s history of ignoring the laws of the Indigenous peoples.
12 Van Wagner, “The Place of Private Property,” 17.
13 Mills, “The Lifeworlds of Law,” 850, n6.
14 Ibid., 855.
15 Borrows, Canada’s Indigenous Constitution, 45.
16 Ibid., 46.
17 Ibid., 50.
18 Borrows, Recovering Canada, 20.
19 McCarney, “indigenous Jurisdiction,” 69.
20 Sioui and McLeman, “Asserting Minopimàdiziwin,” 365.
21 Ibid., 364.
22 Koschade and Peters, “Algonquin Notions of Jurisdiction,” 9.
23 Mills, “The Lifeworlds of Law,” 857.
24 McCarney, “The Indigenous Jurisdiction,” 71.
26 Van Wagner, “The Place of Private Property.”
27 Smit and Valiante, Public Interest, Private Property, 9.
28 Ziff, “Warm Reception,” 113.
29 Neeson, Commoners: Common Right.
30 Davies, Property, 88.
31 Locke, Two Treatises II, para. 26.
32 Ibid., para. 26.
33 Ibid., para. 42.
34 Ibid., para. 33.
35 Aggregate Resources Act, s 2.
36 Ibid., s 1.
38 Carter-Whitney, “Balancing Needs,” 2.
39 Ibid., 2.
41 Ibid., 12.
42 Provincial Policy Statement 2014, 126.96.36.199.
43 Provincial Policy Statement 2014, 188.8.131.52.
44 Ibid., 2.1.5.e
45 Ibid., 6.0.
46 McCarney, “Indigenous Jurisdiction,” 92.
47 Ibid., 62.
48 Harries, “Leader Jailed.”
49 Smitheman and Pratt, “Canada: First Nation Blockade.”
53 Van Wagner, “The Place of Private Property,” 381.
54 Rawls, A Theory of Justice, 9-10.
55 Ibid: 512.
58 Schlosberg, Defining Environmental Justice, 32.
60 McGregor, Honouring Our Relations, 28.
61 Ibid., 27.
Aggregate Resources Act, R.S.O. 1990, Chapter A. 8.
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