Resource Rulers, a new book by Bill Gallagher, outlines the recent history of First Nations, the resource industry and government relations, and confirms what I suspected.
The First Nations are on a winning streak, and we’re kicking butt in the courts. There are close to 170 positive court cases so far, related to resources and jurisdiction since the inception of the Constitution Act of Canada.
In 1982, when the pa-triation of the Constitution from Britain and the discussions to develop the Charter of Rights and Freedoms were underway, First Nations fought to have aboriginal and treaty rights enshrined in the Constitution and given legal weight. The result was Section 35, which states: “Existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
At the time we complained that Sec. 35 was not defined and only gave us the right to go to court. Then prime minister Pierre Trudeau announced that three first ministers’ conferences would be held to define those rights. The three conferences were held, but unfortunately the meetings got nowhere.
The premiers had the chance to define rights or initiate a process at the conferences, but instead left it for the courts to decide. In the intervening years First Nations have gone to the courts repeatedly and we have amassed an impressive winning streak.
Prior to the patriation of the Constitution, aboriginal title was established by the Calder case in British Columbia and the James Bay Cree decision in Quebec.
In 1997, however, the Supreme Court ruled on the Delgamuukw case and shifted the landscape forever. Delgamuukw refers to a case brought forward by the Gitxsan and Wet’suwet’en traditional territory in British Columbia.
The court defined aboriginal title as the collective right for aboriginal people to hold title to their traditional lands. It then recognized that the right was protected under Sec. 35 of the Constitution and stipulated that the Crown had a duty to consult aboriginal groups prior to acting and said that compensation is required in some cases. The Bernard and Marshall cases on the East Coast bookended the decision, with the court ruling in favour of the Mi’kmaq nation.
The wins have been incremental over the past 30 years, gradually building on the success of previous cases. As a result, First Nations’ successes largely have flown under the radar. Governments are not anxious to react or recognize our successes, and media have failed to get their minds around it. In the journalistic world of 24-hour breaking news, complicated and incremental stories are often ignored. Gallagher’s book refers to this as the largest unreported story of the decade.
All this success has empowered First Nations to the point that today resource development has to have the blessing of First Nations whose traditional territory is affected. The Gateway pipeline, for example, likely will never be built as long as First Nations groups oppose it.
The Supreme Court has ruled that governments in Canada have a constitutional duty to consult and accommodate aboriginal groups when making decisions that could adversely affect lands and resources within a First Nation’s traditional territory.
The Harper government and First Nations are on a collision course. The government wants to make Canada a major exporter of natural resources. First Nations, however, are claiming title and want serious consultation and resource revenue sharing. The courts seem to be moving in that direction.
The federal government must follow up with public policy and legislation that implement the principles embodied in the court decisions. First Nations must be included as serious players in the resource industry.
This includes resource revenue sharing, meaningful consultation, equity in resource companies and seats on boards of directors.
The old days of limited consultation and the vague promise of jobs and training are long gone.
Unfortunately, most members of the public can’t or won’t accept the fact that aboriginal people hold tremendous power and are not afraid to use it. Court decisions have empowered our people, and we can expect more legal challenges and unrest in the future.
The national example exists in Quebec, whose government has initiated a long-term agreement with the James Bay Cree on resources and revenue sharing. This is a model that Saskatchewan’s Wall government would be wise to review.
First Nations leaders have to avoid the trap of focusing on minor amendments to the Indian Act and legislation that requires publishing salaries of chiefs and councillors. I see this as a smoke screen and a distraction to avoid the serious discussions that have to take place on resources.
Resource revenue sharing and our meaningful role in the resource industry represent the next big move for Canada’s First Nations.
If the federal and provincial governments choose not to act, resource projects such as the ring of fire in northern Ontario, future potash mines in Saskatchewan, and hydro projects across Canada will be in jeopardy.
Gallagher’s book should be required reading for all First Nations leaders and their supporters. It represents a road map to our future.
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