Current Reality

No progress from the Federal government yet on executing a Royal Proclamation of Reconciliation 5 years after the TRC Calls to Action were issued in June 2015.

Two of the central tenets of the Royal Proclamation are the repudiation of the Doctrine of Discovery and terra nullius and the adoption of the UN Declaration as the framework for Reconciliation. Out of those flow the practical remedies of “renewing or establishing” treaty relationships and “the recognition of Indigenous laws and legal traditions” to fix 153 years of broken promises and treaties.

One of the major challenges will be in reconciling a non-committal federal agenda with provincial jurisdictions. Since the last Indigenous Watchdog update on April 21, 2020, four provinces – BC, Alberta, Ontario, Quebec – have joined the federal government (Trans Mountain Pipeline, Coastal GasLink) and Newfoundland and Labrador (Muskrat Falls) in overriding and shutting down Indigenous protests – including though injunctions enforced by various police forces – to advance major resource extraction projects that negatively impact Indigenous communities and lives.

How does that behaviour advance Reconciliation? Perhaps that’s why these Calls to Action are either “Not Started” (Federal Government) or “Stalled” (Federal Government)

Calls to Action

Call to Action # 45Develop with Indigenous Peoples a Royal Proclamation of Reconciliation
Call to Action # 46Develop and sign a Covenant of Reconciliation to advance Reconciliation
Call to Action # 47Repudiate Doctrine of Discovery and Terra Nullius

Current and Ongoing Problems

Bill 197 “The COVID-19 Economic recovery Act 2019” violates Ontario’s Environment Bill of Rights by weakening environmental protections that impact Inherent, Aboriginal and Treaty rights

July 24, 2020:NationTalk – Bill 197 (COVID-19 Economic Recovery Act, 2019), an omnibus bill introduced on July 8 and passed just 13 days later on July 23 with little legislative debate and no Standing Committee consideration, and without public consultation on the changes to the Environmental Assessment Act (EAA despite warnings from Ontario’s Auditor General that this violates the Environmental Bill of Rights. The Bill allows for major changes to the EAA while offering few concrete details, leaving important decisions to be implemented through regulations that are not yet known and which will not be subject to legislative approval. Major changes to the Environmental Assessment Act (EAA) could significantly weaken environmental protections and impact Inherent, Aboriginal, and Treaty rights, all under the guise of COVID-19 response.

On the same day that Ontario introduced Bill 197, it gave public notice of just 45 days to review and comment on a package of other proposed changes to the EAA and related regulations relating to mining, hydro transmission, municipal environmental assessments, flood and erosion control, waterpower projects, resource stewardship and facility development, transportation, public works, amendments to environmental assessments, land claim settlements, projects within provincial parks and conservation reserves, and two specific major transportation projects. These changes are part of an ongoing effort by this government to overhaul Ontario’s environmental protection regime, in support of its promise to “cut red tape” in support of economic interests.

 https://nationtalk.ca/story/statement-on-passage-of-bill-197-and-changes-to-the-environmental-assessment-act

As a community with a high poverty rate, Fort Albany understands the need for economic opportunity. However, development must be ecologically responsible and culturally sustainable. At a time when the whole world is facing unprecedented climate change and biodiversity loss, development must be supported with more and better environmental protections, not fewer. Any changes to environmental protections are important for us, because the exercise of our Inherent, Aboriginal, and Treaty rights is inherently connected to the wellbeing of the environment. However, the government is unilaterally introducing major changes with the knowledge that our community is under pressure and constraints due to COVID-19, and that we do not have the resources or capacity to meaningfully engage. This is not honourable, and it disrespects our relationship with our territory and our role as a Treaty No. 9 partner. We call on the Government of Ontario to repeal Bill 197, and to design a more appropriate process for reform of the EAA in full partnership with Indigenous groups, with the principles of robust environmental protection, public participation, and respect for Indigenous rights at its heart.

Aug. 10, 2020The Timmins Daily Press – Mushkegowuk Council is calling on the province to honour the treaty it signed 115 years ago. Treaty 9 was signed between First Nations leaders and Canadian political figures to establish guidelines around resources and projects on First Nations land. Grand Chief Jonathan Solomon called Bill 197 a “major step back” that “abolishes many of the environmental assessment rules that have been in place for decades.” Solomon explained that a treaty was signed because it recognized the Mushkegowuk/Ininiwuk peoples as a nation, which had its own governance, laws, language, culture, among others. Mushkegowuk’s grand chief said the agreement signed in 1905 was a “‘nation-to-nation sacred treaty,” noting that Canadian courts have deemed the oral promises made were “as much a part of the binding treaty as the words written on the treaty parchment.” Solomon added that if the province is interested in receiving consent for resource, forestry, mining and other development projects on Indigenous land, it must be done in consultation with First Nations from the beginning. “You will need to show how these projects respect the integrity of our environment. Further, you will need to demonstrate how these projects will benefit the Omushkego/Ininiwuk. That has not changed, despite Bill 197.” https://www.timminspress.com/news/local-news/mushkegowuk-suggests-changes-to-bill-197-violate-treaty

Supreme Court refuses to hear First Nations appeal of Trans Mountain Pipeline Approval project

July 2, 2020 – Vancouver (Musqueam, Squamish and Tsleil-Waututh Territory)- The Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band have been denied leave to appeal by the Supreme Court of Canada. “We are extremely disappointed by today’s decision by the Supreme Court of Canada,” said Chief Leah George-Wilson. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.” Although today’s decision marks the end of the road for this legal challenge, First Nations have vowed to explore all legal options to protect their rights, land, water and climate.

The impact of Coldwater First Nation v. Canada 2020 FCA 34 (“Coldwater decision”) of Feb. 4, 2020 is to weaken the constitutional duty to consult to “a procedural duty to provide reasons Instead of looking at what happened during consultation to determine whether it was meaningful and upheld the honour of the Crown (the test for meaningful consultation), the Federal Court of Appeal (FCA) limited their review to the reasonableness of Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. The court held that Cabinet’s decision, including the outcome reached and justification for it, was reasonable, relying on Cabinet’s own decision document and accompanying explanatory note. Because the Canadian government also owns the TMX project, Cabinet’s assessment of the adequacy of their own consultation should not invite the level of deference conferred to decision makers in Vavilov. http://nationtalk.ca/story/media-release-and-legal-backgrounder-first-nations-extremely-disappointed-by-supreme-court-of-canadas-refusal-to-hear-tmx-appeal-but-vow-to-keep-fighting

Apr. 7, 2020 – The Squamish Nation, Tsleil-Waututh Nation, the Ts’elxwéyeqw Tribes and Coldwater Indian Band announce they are seeking leave for appeal to the Supreme Court of Canada. These four First Nations have fought and challenged the Trans Mountain Expansion (TMX) Project through every Federal court. They now intend to seek a challenge at the Supreme Court of Canada. The First Nations are challenging the adequacy of Indigenous consultation leading up to the second approval of the oil pipeline project.

“The Supreme Court of Canada needs to deal with the Federal Court of Appeal’s decision that essentially lets the government be the judge and jury of its own consultation efforts. We need the opportunity to address the flawed consultation and engagement conducted by the Federal government, given the strength of rights and title of the Squamish People to Burrard Inlet and Vancouver. Indigenous peoples have a constitutional right to meaningful consultation and the courts must scrutinize that process. This flawed decision cannot stand, and we must challenge it, not just for us but for any future project that may be challenged by First Nations,” said Khelsilem, Squamish Nation Spokesperson and Councillor

Negative impacts on Indigenous health through the suspension of environmental monitoring by the Alberta Energy Regulator

June 5, 2020: Three First Nations in northeast Alberta – Athabasca Chipewyan First Nation, Fort McKay First Nation and Mikisew Cree First Nation -have jointly filed an appeal related to recent Alberta Energy Regulator (AER) decisions to suspend key aspects of environmental monitoring in the oil sands. The First Nations were not consulted on decisions that clearly impact Alberta Energy Regulator’s (AER) ability to identify and mitigate these impacts in traditional territories.

May 8, 2020 – Clean Tech Canada (Canadian Manufacturing) The latest exemptions specifically relieve operators of the following:

The decisions to suspend environmental monitoring were made unilaterally. We were not notified—in fact, we would have had no idea this had occurred if it had not been revealed in the press,” stated Mel Grandjamb, Chief of Fort McKay First Nation. Consultation would have enabled us to inform the regulator how its monitoring decisions impact our Nations. Both we and the industry would have been better served by the clarity that consultation would have contributed to these decisions.”

  • Monitoring most ground and surface water, unless it enters the environment
  • almost all wildlife and bird monitoring is suspended
  • Air-quality programs, including one for the First Nations community of Fort McKay, have been reduced, along with many other conditions of the companies’ licences
  • Testing for leaks of methane, a powerful greenhouse gas, has been suspended
  • Wetlands monitoring and research is gone until further notice
  • Water that escapes from storm ponds no longer must be tested

In the days leading up to these decisions, our representatives sat AER, government and industry representatives to provide oversight to environmental monitoring programs under the Oil Sands Monitoring Program. The fact AER did not mention once it was considering suspending monitoring, some of which may overlap with program work, is very disappointing. This neglect does not encourage reconciliation. In March, the Canadian Association of Petroleum Producers requested that the federal government relax several regulatory and policy activities, including an indefinite suspension of all consultation with industry to develop new environmental policies. At the same time, industry has lobbied the provincial government to resume consultation with Indigenous communities to advance projects despite the closure of our communities due to COVID-19 pandemic responses.

Government of Ontario using COVID-19 to restrict consultation on development of Ring of Fire mining operations

May 22, 2020: Policy Options – “Pandemic shouldn’t impede meaningful Indigenous engagement on Ring of Fire”. Ontario government announced that “a regional assessment of potential mining operations for the Ring of Fire will be undertaken”. The announcement only posted on the agency website severely impacts the ability of First Nations to meaningfully engage in the consulting process. Only those registered on the email distribution received the email notification that:

  • Agency suspended all face-to-face meetings
  • Cancelled all engagement activities
  • Agency will continue to develop a regional assessment and plan with a much more constrained engagement

As evidence demonstrates, inadequate internet access and a lack of cellular networks access to remote regions in Northern Ontario put First Nations at a greater disadvantage in efforts to participate at a distance during the global pandemic.  For remote First Nations in Northern Ontario, the agency must work harder to ensure that the voices of communities implicated in the Ring of Fire regional assessment are not further silenced by the ongoing COVID-19 pandemic. Vague statements such as the one released to the email distribution list do little to provide implicated communities, organizations, and individuals the clarity required to adequately adjust and prepare for consultation opportunities once the threat of COVID-19 subsides. In the meantime, it is imperative that First Nation community members and leadership, scholars, activists, policy-makers, consultants and other groups interested in Ontario’s Ring of Fire remain as vigilant as possible during COVID in monitoring developments in the region and ensuring major decisions are not made without critical thought or meaningful Indigenous and public engagement

First Nations protest against Manitoba Hydro Keeyask project due to COVID-19 health concerns.

May 24, 2020 – AGREEMENT REACHED

Manitoba Keewatinowi Okimakanak (MKO) Inc. is issuing this statement along with the four Cree Nations that have entered into a partnership with Manitoba Hydro in the construction and operation of the Keeyask Generating Station in Northern Manitoba. The four First Nations are: Tataskweyak Cree Nation, Fox Lake Cree Nation, War Lake First Nation, and York Factory Cree Nation. “MKO is pleased that Manitoba Hydro has come to an agreement with the four Cree Nations regarding the Keeyask construction site,” stated Grand Chief Garrison Settee. “It is imperative that corporations working in our territory are full partners and in agreement with plans to open up the North—the First Nations had made it clear for weeks that they were not in agreement with the plans made for the Keeyask project. Their ultimate concern was in protecting their communities from the threat of COVID-19. The agreement made between the Chiefs and Manitoba Hydro includes the removal of blockades, the lifting of the injunction against Tataskweyak Cree Nation, as well as planning exercises, a move towards implementing the project plan for Keeyask, and an in-person meeting between the CEO and the leadership of the four Cree Nations.

Northern Manitoba First Nations had the highest rates of hospitalizations of all First Nations in Canada during the last H1N1 pandemic. MacLean’s July 16, 2009

WHAT WAS THE ISSUE?

May 20, 2020: Amnesty InternationalDespite legal obligations, Manitoba Hydro has not worked collaboratively to obtain consent to this most recent decision to expand operations (Keeyask Hydro project) and is ignoring requests by the four partner First Nations (Fox Lake, War, York Factory) to limit work at the dam site because of public health concerns. “Every effort must be made to contain the spread of COVID-19,” said Ana Collins, Indigenous Rights Campaign Advisor with Amnesty International Canada. “Indigenous communities in northern Manitoba are rightfully occupying and defending lands to which they still hold inherent title. Yet federal and provincial governments continue to rely upon repudiated papal doctrines of discovery and terra nullius to claim (as in the Haida decision) “presumed Crown sovereignty.”

Without question, these communities have an inherent responsibility and right to control access into their territories to protect their communities from COVID-19 and prevent unsustainable pressure on healthcare systems in rural and remote areas. “In light of the highly infectious nature of COVID-19, and the particular threat that it poses to vulnerable communities with inadequate access to health care, housing, water and other essential services, it is imperative that federal, provincial and territorial governments respect the right of Indigenous peoples to set conditions of entry into their territories. Indigenous communities must be able to restrict access of industry workers, tourists, cottagers, and others. Where Indigenous communities have required suspension of certain activities in their territories, this must be respected.”  Coalition for the Human Rights of Indigenous Peoples

Government of Quebec infringing on First Nations Aboriginal treaty rights by failing to consult First Nations on Bill 62’s impact on health

Apr. 20, 2020 – Makivik Corporation, who represent the Inuit of Nunavik, is strongly opposed to the resumption of mining activities in the Nunavik region. The decision was made unilaterally by the government of Quebec without consultation whatsoever with the Inuit and was further supported by a directive issued by the Nunavik’s Director of Public Health, and Nunavik’s Director of Civil Security to partially lift the travel ban to Nunavik for the purpose of the reopening of the mining sites. Inuit account for the vast majority of the population in Nunavik and need to have a say on major regional issues such as this one. Miners started returning to the region yesterday.

“Makivik will not entertain the opening of any mines at this time in Nunavik. This is very dangerous. The Inuit elected officials in the communities and in the different regional organizations need to be heard and need to make the decisions and call the shots. Nunavik cannot and will not be governed by civil servants who may be tempted to use the pandemic to empower themselves” says Makivik President Charlie Watt. “ We have written numerous letters to Quebec on different issues related to the pandemic and they have not responded…not even an acknowledgement of receipt.” As the signatory to the James Bay and Northern Quebec Agreement (JBNQA) and the Raglan and Nunavik Nickel Agreement, Makivik Corporation is the political representative of the Inuit of Nunavik, and this is without question. Quebec can’t ignore Makivik and has to fully respect the spirit and intent of the JBNQA. The Inuit can’t accept to go through another bad episode of colonialism in 2020.

Open Letter from Union of BC Indian Chiefs to Government of BC to halt construction of Site C Dam due to risks of spreading COVID-19

March 26, 2020 – Open Letter from Union of BC Indian Chiefs to Premier John Horgan and Adrian Dix, Minister of Health to halt construction of Site C Dam due to concerns around COVID-19. Through UBCIC Resolution 2011-25, UBCIC highlighted the environmental dangers of the Site C Dam and pointed to the devastating effects it will have on the Treaty and Aboriginal Rights of Treaty 8 First Nations. BC Hydro has confirmed that 16 of its construction workers at the Site C Dam site are under self-isolation with flu like symptoms. Given the close quarters and inevitable contact points at the 1,600-worker camp, an outbreak of COVID-19 would be disastrous and with dire implications for nearby communities, including First Nation communities.

There is an extreme shortage of health services in northeast British Columbia, with virtually no hospital beds available to handle an outbreak in Fort St. John or nearby Indigenous and non-Indigenous communities. BC Hydro’s recent news release also reveals that it is barrelling ahead with Site C Dam construction, including work on river diversion, transmission lines, highway realignment, clearing and other elements. This negligence and irresponsible continuation of construction places the welfare of workers and communities at an unacceptable risk and is utterly inconsistent with the health advice provided by Provincial Health Officer Dr. Bonnie Henry.

Federal Government Continues to Ignore Free Prior and Informed Consent

May 6, 2019 – The Chiefs of Sovereign and Treaty Nations from Treaty 6, 7 and 8 have consistently told Canada, “Nations don’t make laws for other Nations”. Despite numerous attempts to work with the Federal Government, Canada continues to unilaterally develop laws and policies without our right to free, prior and informed consent. Alexander First Nation, Chief Kurt Burnstick.

“On behalf of our Nation and three other First Nations, we filed an early warning action with the Committee on Elimination of Racial Discrimination (CERD) against all the unilateral actions of Canada. In December 2018, a letter was sent to Canada asking what steps Canada has taken to protect the rights of our Nations to our free, prior and informed consent in all aspects from legislation to policy changes. CERD gave Canada until the 8th of April 2019 to respond to our UN CERD submission” added Chief Makinaw.

Canada’s “prove it” approach to Aboriginal Title (from Policy Options)

Feb. 2, 2019 – Continued refusal to accept Aboriginal title as defined by the Supreme Court of Canada in the Delgamuukw decision and the Tsilhqot’in decision. The Supreme Court of Canada similarly recognizes in Delgamuukw that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title “arises from the prior occupation of Canada by aboriginal peoples.” 

Canada’s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which both the federal and BC governments have committed to implement, recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”

Government of Ontario appeals the Robinson-Huron and Robinson Superior Treaties

Jan. 22, 2019: CBC – Appealing the Robinson-Huron and Robinson Superior Treaties Superior Court decision around Annuities claims while at the same time negotiating with the 21 First Nations making up the Anishinabek people in northern Ontario. 

In her December ruling, Justice Patricia Hennessy wrote the annuities described in the treaties — which hadn’t been raised since 1874 — were meant as a mechanism to share the wealth from the treaty territory’s resources. “As the historical and cultural context demonstrates … the parties were and continue to be in an ongoing relationship,” wrote Hennessy. The government of Ontario disagrees.

Robinson-Huron Treaty 1850
The Royal Proclamation of 1763 was issued by King George III and is a document that set out guidelines for European settlement of Aboriginal territories in parts of North America. The Royal Proclamation was clear that lands did not become available for settlement – known as public lands – until after a treaty with Aboriginal inhabitants.

“The treaties were entered into on a nation-to-nation basis; that is, in entering into the pre-Confederation treaties, the French and British Crowns recognized the Aboriginal nations as self-governing entities with their own systems of law and governance and agreed to respect them as such.” (source: Royal Commission on Aboriginal Peoples). Through the Treaty, the Lake Huron Chiefs and leaders of the Anishinabek signatory First Nations intended to protect the territory and establish relations. Contrary to what many Canadians believe, nothing has been given to our First Nations. In fact, it was our First Nations who agreed to share our resources with the newcomers, now Canadians. The Robinson-Huron Treaty intended to provide economic benefits for the First Nations parties to the Treaty in perpetuity. Significant wealth has been and continues to be generated from resource development within the Treaty territory.

July 8, 2020Manitoulin Expositor – Since the Ontario Government launched their appeal of the Dec. 24, 2018 decision, the Superior Court has sided with the Anishinabek Nation in two of three challenges:

Phase 1: Established that the original treaty created a ‘sui generis fiduciary relationship’ (meaning the colonial government was required to manage the lands and act in the best interests of the First Nations, a relationship that was specifically applicable to this case

Phase 2: Justice Hennessey rejected the crown’s various arguments that it should not have to increase annuities or make up for lost payments in past. These arguments included a statute of limitations—that too much time has passed between the last annuity increase and it should not be responsible for annuities before 1963, and that the Crown may be ‘immune’ from being sued.

Phase 3 – Final phase addresses the compensation issue (TBD)

https://www.manitoulin.ca/robinson-huron-treaty-money-lawsuit-gets-nod-from-superior-court-judge-crowns-defence-pleas-come-up-short/