In October 2010, the Far North Act (the “Act”) received royal assent in the Ontario legislature. The Act is aimed specifically at First Nations in Nishnawbe Aski Nation (“NAN”), who are the sole occupants of this isolated/remote area of northern Ontario, Canada. The Act became law over the unanimous and fundamental objections and free, prior and informed consent (“FPIC”) of the NAN people. In spite of its Treaty and international obligations, the federal government of Canada did not intervene to protect First Nations in the process leading up to this Act.
The Far North Act was supported by a number of national and international conservation organizations in both Canada and the United States, they included:
1) World Wildlife Fund of Canada
2) CPAWS Wildlands League
4) Environmental Defence
5) Environment North
6) Forest Ethics
7) Ontario Nature
8) Canadian Boreal Initiative/Ducks Unlimited Canada
9) David Suzuki Foundation
It came as a result of a unilateral provincial government announcement in July 2008. It appeared to be the product of discussions between the government and certain conservation organizations fixated on protection of the boreal forest in northern Canada, which was identified by Global Forest Watch Canada as the last of the world’s remaining intact forest landscapes.
The Province of Ontario has described the homelands of the NAN people as a “globally significant carbon sink” and has incorporated section 5(3) of Act to deal with storage and sequestration of carbon. At the same time, they are excluding First Nations from any meaningful involvement in policy discussion on carbon storage and carbon credits, even though a vast swath of NAN homelands is being confiscated for this law.
The issue of establishing parks and protected areas (without the FPIC of First Nations) for the purposes of carbon trading, is widespread throughout the world (see: http://www.ienearth.org/REDD/index.html for more information). The establishment of the Far North Act in 2010 represents the first time the Ojibway, Oji-Cree and Cree nations of NAN have experienced this phenomenon. Legal arguments arguing the merit of First Nations rights to claim carbon off-set credits through ownership of carbon are becoming increasingly common in Canada and around the world. First Nations have the option to put forth the argument that carbon, as a resource, was not ceded by First Nations to the Crown and that the right to use it still retained by First Nations.
Section 5 and other provisions of this Act require the eventual setting aside of an interconnected protected area of at least 225,000 square kilometres. It will be one of the largest protected areas in the world, equivalent to the surface area of the Canadian Maritime provinces and taking up 21% of the entire surface of the Province of Ontario. Combined with other existing small and large parks and/or protected areas within the territory, it means that at least 50% of the entire NAN homelands will be permanently “parked.” The immense protected area is being expropriated without compensation (see also article Expropriation of Indigenous Lands for Government Designated Protected Areas in Northern Ontario, Canada published in the July 2011 edition of the Forest Peoples Programme ENewsletter, for more information).
The Act establishes a land use planning (“LUP”) system that is open to First Nation participation however, the core elements of every land use plan are subject to a provincial veto, in complete denial of the FPIC standard. The LUP process is required to generate the interconnected protected area of at least 225,000 square kilometres. On average, NAN First Nations in the far forth will have to “agree” to give up half of their homelands for the interconnected protected area.
Section 12 of the Act provides the entire far forth area (100% within NAN territory) is frozen for most forms of modern development. There are some exceptions for existing permitted uses and the like. By the stroke of a pen, First Nations peoples are not permitted to engage in most forms of modern economic development throughout their traditional territory. This is in utter violation of the terms of the Treaties and international law. The only way for First Nations in NAN can re-acquire development opportunities, is to agree to land use plans.
Even if a land use plan is “agreed” to, First Nations will not acquire any special development rights to the off-reserve territory left over after the super park. First Nations will still be subject to legislation like the Ontario Mining Act that do not give them any kind of preferential treatment or any assurance of benefit sharing.
If a First Nation stands on principle and resists the blackmail of the immediate development freeze (sec. 12), it does not really matter. The game has been completely rigged by the Province of Ontario. Where, for whatever reason, a First Nation does not agree to an LUP, its entire traditional territory will remain more or less frozen. In addition, even without an LUP, the Province of Ontario can unilaterally establish “provisional” protected areas: sec. 13(1). Further, the Province of Ontario can establish protected areas under the Public Lands Act (sec. 25 of the Far North Act), without any First Nation input. The entire LUP process can be subverted at any time if the Province of Ontario decides to authorize a development it deems to be in the social and economic interests of the Province of Ontario: sec. 14(4). There is no such exception for First Nations.
NAN has taken the opportunity to measure the Far North Act against international human rights instruments and has found many human rights violations.
The Far North Act is viewed by First Nations in NAN as an invalid law and a new form of colonialism. NAN will continue to advocate the positions of the Chiefs-in-Assembly with respect to the Far North Act and for the adherence to international human rights standards by governments and all other third-party interest groups.
Stay tuned for further updates. For further information, please contact us.