Legitimacy versus Legality

Bruce H. Moore is the Director of the International Land Coalition, an alliance of intergovernmental and civil-society organizations working together to promote secure and equitable access to and control over land. The ILC Secretariat is hosted by the United Nations in Rome, Italy. For more information go to



Uranium Mining – Legitimacy versus Legality
Global demand for minerals, fuels and forest products is a daily headline around the world. On the surface, the promise of jobs and the projections of bull markets appear full of hope for workers and investors alike. However, the story below the surface may be different. Conflicts over natural resources are rising. Growing numbers of local land owners and traditional users increasingly fear that they will loose their land and resource rights to the powerful corporate forces of international mining, energy and forestry.

Extractive industries, such as Frontenac Ventures, outside of Canada’s capital Ottawa, have filed their prospecting claims, seemingly on the classical arguments of the mining sector – that the law provides them with sub-surface rights; a mine, in this case uranium, will contribute to economic growth; and, today’s mining practices are safe. And, in the case of uranium, the latest boost to the claims of the mining industry, links nuclear power to climate change – it’s carbon-free and unlike gas and oil, uranium is located in friendly places like Australia and Canada.

Competing resource claims are difficult policy issues. From a global vantage point, these are not new issues. There is a wide body of worldwide experience and evidence that can be used to establish public policies to legislate and regulate who has he right to use which resources, for which purposes, and under which conditions. These are the essential components for ensuring sustainable resource use. The emerging confrontation around uranium mining in Canada can benefit from this knowledge and the lessons that have been learned elsewhere.

The Canadian case, seeming to hinge on a law from the 1800s, raises the same question that has come to the surface in resource conflicts in other countries. Is the law legitimate? For the International Land Coalition and similar organizations concerned with peoples’ resource rights, it is commonly recognized that governments have a responsibility to ensure that their laws are both coherent within their jurisdiction and consistent with international agreements to which they are a party. In legitimacy versus legality approach to public policy, governments are frequently found to have not harmonized old laws with the new, both within and across ministries. Is this mining law from the 19th century in harmony with related federal and provincial laws of the 21st century?

Around the world, legislative reform of the natural resource sector is undergoing rapid reform in respect to environmental protection, nuclear safety, and the downstream natural resource and watershed effects, resulting from chemical leaching, including mining residues. Canada has a mixed reputation in the mining sector. On the one hand Canada is recognized as an international leader in promoting environmental impact monitoring. On the other, Canadian mining companies operating abroad are frequently cited as examples of policies not being matched in practice.

The current land rights conflicts in Canada and rampant resource debates around the world, point to the need for a mining law that reflects the full body of resource and environmental laws and safeguards, including Canada’s voluntary or ratified international agreement in these domains. Furthermore, when approaching resource reform, it is noteworthy that the principles of free, prior and informed consent are increasingly considered as the basis for protecting the resource rights of landowners, users and tenants.

From press stories covering this Canadian situation, communities may be at risk of becoming divided over the economic promise that mining may offer. Yet, studies have indicated that mining generally results in only low levels of employment due to its high tech nature. The real increase in jobs is not where the mine is located but where the minerals are used, while the environmental consequences remain. Road building and infrastructure are one time investments and trucking generates few jobs. And, the few on-site jobs can quickly disappear due to the high price volatility of minerals. Additionally, a 2001 study found that Canadian taxpayers subsidized the mining industry by $13,095 per job created, funds that may have been used to stimulate alternative opportunities.

Mining is not neutral; it affects the entire territory – especially where the mineral is uranium. Mining on average takes 20 years to come on stream and may be postponed or cancelled if mineral values change or competition from richer deposits or lower labour costs makes other mining locations more attractive. For these twenty years other opportunities are likely to suffer. In a highly valued recreational area with a burgeoning property market, as in the case of this region of Canada, property values are likely to decline thus lowering the tax base. Whereas, the current growth in full-time residents, seasonal cottage owners and vacationers would seem to be a sustainable stimulant to the local economy. This appears to be the alternative to an uncertain, financial volatile, environmentally risky and socially divisive force among neighbours and local business people alike.

Climate change is among the international issues that are gaining much required attention. It would seem unimaginable that policy makers would be taken in by corporate “spin-doctors” suggesting that they should use risky technology to counter greenhouse gases when safe technologies exist.

This Canadian mining confrontation is of rising global interest. Whose interests will rise to the surface – the citizen or the corporation?


Lawyers attempt to force hand of justice; Want to see protesters brought to trial
Posted By Sue Yanagisawa
The Kingston Whig Standard October 5, 2007

Lawyers are still attempting to forestall contempt charges against protesters occupying a uranium-prospecting claim north of Sharbot Lake.

This morning, lawyers representing the Algonquins occupying the claim and Frontenac Ventures Corp., the company that holds rights to explore the area’s mineral potential, will meet at Frontenac County Court House to try to broker a deal.

Late last week, Justice Douglas Cunningham endorsed the injunction sought by the company upholding Frontenac Ventures’ “immediate, unfettered and unobstructed access to the subject property.”

Within days, Frontenac Ventures filed notice it was seeking an order holding the Ardoch Algonquin First Nation, Shabot Obaadjiwan First Nation, five of their community leaders, Christian Peacekeeper David Milne of Belleville, local landowner Frank Morrison and unidentified Johns and James Doe in contempt of his order “by failing to end the occupation and/or leave the subject property.”

As of yesterday, Cunningham’s injunction was still in draft form.

Although Cunningham’s injunction hadn’t yet been filed with the court, after some preliminary discussion to tweak its terms, Frontenac’s lawyer, Neal Smitheman, asked to proceed directly to trial on the allegations of contempt, which were first raised in relation to an interim injunction granted in late August by another judge.

Cunningham asked if it would be better to wait and proceed, if necessary, on his order: “It has not been issued. It has not been entered [with the court] and there’s no direction to enforce,” he pointed out.

Smitheman told him the parties were aware of his endorsement and said, “your endorsement has not been followed. Your endorsement is being ignored.”

At previous court hearings where the prospect of contempt charges was raised, it was estimated that a trial would take five days. Neither of the lawyers representing the Algonquins came to court anticipating that they’d even be spending the night in Kingston.

Lawyers Christopher Reid, who represents the Ardoch Algonquin First Nation and Stephen Reynolds on behalf of Shabot Obaadjiwan, told the judge they weren’t prepared to begin a trial immediately.

Reynolds said that Smitheman was “trying to jam through a contempt motion,” on short notice and argued that his clients are entitled to call witnesses in their defense. He also told Cunningham that he hadn’t prepared to cross-examine the police witnesses.

Smitheman proposes to call three members of the OPP’s Aboriginal Response Team (ART), a recent initiative developed out of the Ipperwash Inquiry and aimed at building trust between native communities and the police force. Concerns have already been expressed for the future of the initiative if its members are compelled to testify.

Cunningham rose abruptly around 11:15 a.m. and directed the lawyers to join him in the jury deliberation room adjoining the courtroom.

Spectators in the courtroom were left for the rest of the day to speculate on what was happening behind closed doors.

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