The Ontario court of appeal has dismissed $50,000 in fines imposed on a group of Algonquins who blockaded a uranium exploration site and ruled that a six-month sentence against former Ardoch Algonquin chief Bob Lovelace was inappropriate.
"With great respect to a judge trying conscientiously to resolve a difficult, bordering on intractable problem, the sentences he imposed are too harsh," Justice James MacPherson wrote in a unanimous decision released yesterday.
Superior Court Justice Douglas Cunningham jailed Lovelace in February for six months for refusing to obey his injunction to stop preventing uranium prospector Frontenac Ventures from entering a prospective mine site north of Sharbot Lake.
Cunningham also fined Lovelace $25,000 and fined Ardoch Algonquin First Nation co-chief Paula Sherman $15,000 and the Ardoch Algonquin community $10,000 for the same offence.
Lovelace, a Queen's University lecturer, spent 3 1 /2 months in jail before being released after the appeal hearing in Toronto on May 30. The three-judge panel delayed explaining Lovelace's release and delayed deciding on what to do with the fines.
MacPherson said in his ruling that Cunningham appeared to fail to consider several factors when he sentenced Lovelace to spend as much as six months behind bars for contempt of court.
Those factors are:
* Cunningham mentioned only deterrence and punishment and failed to mention rehabilitation. Rehabilitation is considered one of the cornerstone considerations of sentencing.
* Cunningham didn't appear to consider that Lovelace and Sherman were first-time offenders, are leaders in their community, have demonstrated respect for Canadian law, and openly admitted they had committed contempt.
* Cunningham should have taken into account that the protests and the blockade were conducted peacefully and that no property was damaged.
* The sentencing judge should also have recognized the Algonquins weren't blocking access to the disputed property to everyone, but were preventing mining exploration on land that is the subject of land claim negotiations.
In a previous Supreme Court case called "Gladue," the top court found excessive imprisonment of aboriginals was a serious problem.
MacPherson made frequent references to the Gladue case in his decision, noting that Lovelace's imprisonment emphasized the estrangement of the Algonquin community and aboriginals in general from the justice system.
"The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights," the appeal court judge wrote.
Lovelace has maintained that he respects Canadian law, but that Algonquin law, which demands protection of nature and the environment, comes first.
"The fact that persons of the stature of Mr. LovelaceandChief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation," MacPherson wrote.
Instead of creating a deterrent, imprisonment pitted the Algonquins against the justice system, the judge said.
"That the court found it necessary to imprison the leaders of the [Ardoch Algonquins] simply serves to emphasize the gulf between the dominant culture's sense of justice and this First Nation's sense of justice," he wrote.
Some "systematic" factors played a role in bringing the Ardoch Algonquins and their two leaders before the courts, he said.
They include the existing land claim and the Ontario Mining Act.
In a previous Supreme Court decision, called "Haida Nation," the court said the Crown must address aboriginal concerns before approving activities that could impact claimed title or land rights.
At the same time, nothing in the mining act, which allows prospectors to explore any Crown land -even those subject to aboriginal land claims -considers aboriginal land claims or interests.
MacPherson described this dilemma as being at the "heart" of the case.
"In summary, the appellants' character and circumstances, their actual conduct, and the difficult legal context within which it occurred, should have counted as significant mitigation when sentences were imposed on them," he said.
"The circumstances of the offences and these aboriginal offenders are such that ... sentences of incarceration were inappropriate."
MacPherson noted that the sentences handed to Lovelace and Sherman were far more severe than those imposed in other blockade and protest cases.
"In my view, in Mr. Lovelace's case, a fine of $1,000 would have been appropriate," MacPherson wrote. "However, having regard to the time he has spent in custody, I refrain from imposing any penalty on him."
MacPherson said Lovelace and Sherman are entitled to have the costs of their appeal paid. Their lawyer, Chris Reid, has 30 days to file submissions for those costs.
Reid said Frontenac Ventures or the Ontario Government, or both, may pay, since they were both respondents to the appeal.
A court will have to decide who pays and how much.
Reid said he didn't know if the appeal court decision would prevent further injunctions from being put into place, if the Ardoch Algonquins fulfill their pledge to continue to prevent Frontenac Ventures from drilling at the potential mine site.
"Conflict seems inevitable," he said. "It really is all up to Ontario."
TheWhig-Standardreached Lovelace in Wyoming yesterday where he was on vacation riding horses in the mountains.
"With this decision it really means that First Nations, as well as ordinary citizens who want to protest, aren't going to go in with the sense that they're going to be sent to jail for long periods of time," Lovelace said.
Another group of Algonquins from the Sharbot Lake area who participated in the mine site blockade, called the Shabot Obaadjiwan Algonquin First Nation, is talking with the Ontario gover nment and Frontenac Ventures about settling the dispute.
Reid said the Ardoch Algonquins were recently invited to join them, but won't do so until a moratorium on drilling is promised.