Canada’s Emerging Indigenous Right’s Framework

Treaty Nations Reject Canada's Proposed Indigenous Rights Recognition and Implementation Framework

At an Alberta Assembly of Treaty Chiefs meeting many Treaty Nations have stated their opposition to Canada's proposed Indigenous Rights and Recognition Framework Legislation. We are Treaty Tribes, Nations and Peoples of Treaty No. 6 (1876 and adhesions thereto), Treaty No. 8 and Tsuu T'ina, Treaty No. 7.  Several Treaty Chiefs have sent letters to Prime Minister Justin Trudeau to ensure that the positions of Treaty Nations is on record regarding rejection of Canada's Proposed Indigenous Rights Recognition and Implementation Framework.  The letters are in response to Minister Carolyn Bennett's public message, "No stopping the framework, says Minister Bennett, but she's listening (October 29, 2018)."  "The First Nations have made it known publicly and in writing that Canada's aggressive agenda to expedite plans to create legislation designed to deny our rights to lands and resources have been done all without our Free Prior and Informed Consent (FPIC).  This does not bring Honour to the Crown," Chief Craig Makinaw.

"Our sacred treaty matters were not addressed – instead the Minister in July of 2018 sent out a form letter that completely mischaracterized the process and did not include one word on the treaty issues raised in our letter. Onion Lake was not the only Nation to send a letter against the process.  Canada has chosen to ignore those letters resorting to fabrications," stated Okimaw Henry Lewis.

There was an expedited engagement period for the Framework process, and the results contained in the roll-up documents were selective in nature, supporting only Canada's pre-determined positions and goals and were dispensed only at federally pre-selected and managed meetings, and not released to our Nations.

Chief Kurt Burnstick has stated:  "As Treaty Peoples, Canada always must bring the honour of the Crown into dealings with our Nations. The present process is full of sharp dealings that bring no honour to either the Crown or the state of Canada."

"The Framework is in direct conflict with our Treaty, inherent rights and title.   The process does not recognize nor respect our jurisdiction," stated Chief Tony Alexis.

"It is clear for our First Nations that continuing with this process will result in a major set-back for the renewal of the relationship between Canada and Treaty First Nations," stated Chief Billy Morin....

..yesterday

Just over 500 Indigenous people from communities all across Ontario came together to hear the youth, speakers, Chiefs, and many others to say in one voice to Stop The Framework.

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Unravelling B.C.’s landmark legislation on Indigenous rights

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A new era of mutual consent

A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories. 

“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.

Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” 

It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry. 

“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said. 

“In some ways consent and veto are polar opposites to each other.” 

Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine. 

First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.

From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’

“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.

“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”

Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.

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Forest management a natural place to start

Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction. 

He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation. 

Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said. 

“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”

Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.

“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.”

“Areas where we’ve seen the greatest successes are where First Nations and industry and environmental groups and government push in a single direction together. That’s going to require dialogue.” 

Woodward also pointed to a directive at the federal level, introduced under Judy Wilson-Raybould as Justice Minister, that instructed federal lawyers to pursue reconciliation in their engagement with Indigenous litigation. 

“That is very progressive and forward-looking,” Woodward said. “And there’s nothing like it at the provincial level so when First Nations find it necessary to go to court they are met with a very hostile response that makes it very time consuming and very expensive.”

“It’s the province’s fault for not managing that interaction in a respectful and conciliatory manner.”

First Nations going to court over Site C dam’s violation of treaty rights

But clashes are also taking place on treaty land in B.C. 

In the province’s northwest, Blueberry River First Nations has launched legal action claiming that the cumulative impacts of resource development on its traditional territory, including fracking, oil and gas development and construction of the Site C dam, mean its members can no longer engage in traditional practices guaranteed to them in Treaty 8. 

West Moberly First Nations is also waiting for a court date for what it calls a “mega-trial” to determine if treaty rights have been unjustifiably infringed by the Site C dam and two other large hydro dams on the Peace River.

A judge recently ruled the nation’s treaty rights case must be heard by 2023, prior to the flooding of 128 kilometres of the Peace River and its tributaries, which would destroy traditional hunting and fishing grounds, Indigenous burial sites and areas of special cultural and spiritual significance. 

Article 37 of UNDRIP affirms the right of Indigenous peoples to have their treaties recognized and enforced by government — so, at least theoretically, with new legislation in place projects wouldn’t move ahead without addressing these concerns.  

“The Crown and the Crown corporation would have had it be a requirement to receive consent from Day 1. That would have been a completely different framework,” Alexander said....