Current Reality

April 19, 2021 – Budget 2021proposes $31.5M over two years, starting in 2021-22 to support the co-development of an Action Plan with Indigenous partners to implement this legislation and to achieve the objectives of the Declaration

Dec. 4, 2020 – AFN Update on progress of UNDRIP legislation + detailed background information and comparison between Bill C-15 and Bill C262

https://nationtalk.ca/story/national-chief-bulletin-update-on-federal-bill-to-advance-implementation-of-the-united-nations-declaration-on-the-rights-of-indigenous-peoples

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument adopted by the United Nations on September 13, 2007, to enshrine the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” Endorsed to date by nearly 150 countries, including Canada, the Declaration on the Rights of Indigenous Peoples is the most comprehensive international instrument on the fundamental rights and freedoms of Indigenous peoples (culture, identity, religion, language, territory, health, education, cooperation) impacting approximately 370M indigenous peoples.

Dec. 3, 2020: Government of Canadaintroduced Bill C-15 “An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples” for First Reading in the House of Commons over the strong objections of the provincial governments of Alberta, Saskatchewan, Manitoba, Ontario, Québec and New Brunswick.  The proposed legislation would require the federal government to work collaboratively with Indigenous peoples to develop a National Action Plan to implement the Declaration, including measures to address prejudice and eliminate all forms of violence and discrimination against Indigenous peoples. The legislation calls for a process to identify laws that need to be reformed in order to meet Canada’s international human rights obligations. The bill would also require regular reporting on the progress made. In addition, the Bill affirms the fact that the UN Declaration already has legal effect in Canada: it is increasingly being used by courts and tribunals to interpret federal and provincial laws. The preamble to the Bill condemns all racist and colonial doctrines and beliefs.

Dec. 5, 2019 – The Speech from the Throne committed to take action to co-develop and introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples in the first year of the new mandate. The main question is how they will ensure passage given the entrenched opposition within the Senate conservatives.

June 21, 2019 – Bill C-292 “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples” killed by the Conservative senators who stalled passage of the Bill so it could not pass before the dissolution of Parliament on June 21, 2019.

May 9, 2018 – 11 years after the United Nations adopted UNDRIP, the Canadian government introduced Bill C-262, An Act to ensure that the laws of Canada are in harmony with UNDRIP. The Bill passed 3rd Reading in the House of Commons on May 30, 2018 and is now with the Senate where the Conservatives have introduced stalling tactics to delay its passage.

How do the provinces who indicated support for UNDRIP now stand?

British Columbia
April 23, 2021 -Budget 2021 included no funding for the Action Plan to implement UNDRIP nor any indication of how the province plans to align provincial laws with UNDRIP
Nov. 26, 2020 – Bill 22 “Mental Health Amendment Act” and Bill 17 “Clean Energy Amendment Act“, were passed without engaging with First Nations Title and Rights holders and without regard to the detrimental impacts these bills stand to have on First Nations and the rejection of these bills that many First Nations publicly provided. As a result, the First Nations Leadership Council has raised concerns about the BC government’s commitment to UNDRIP when their actions are incongruent with their words.
The government finally decided to share proximate COVID-19 data with First Nations to help them in their fight to protect their communities from the pandemic that hits Indigenous communities much harder. In addition, BC continues to back the RCMP arrests of Wet’suwet’en land defenders protesting the ongoing Coastal GasLink incursions on their un-ceded territories even after the Memorandum of Understanding was signed with the hereditary chiefs on Feb. 29, 2020
Northwest Territories
Dec. 2, 2020 – A newLegislative Development Protocol from the Intergovernmental Council of the Northwest Territories gives Indigenous governments a seat at the table for decisions about land and resource management.
The protocol is consistent with the IGA commitment to collaborate on changes to land and resource management systems, as well as providing a consistent approach for parties to follow.
The protocol is the first agreement of its kind in Canada, and provides opportunities for the collaborative development of land and resource statutes and regulations for the GNWT and Indigenous governments.
The protocol supports the implementation of the United Nations Declaration on the Rights of Indigenous Peoples by respecting, consulting and collaborating with Indigenous Governments on land and resource management.
Quebec
Dec. 9, 2020 – The Montreal Economic Institute (MEI), a right wing think-tank aligned with the economic interest of Quebec’s business elite released – and emphatically endorsed – the results of an Ipsos poll MEI commissioned indicating that 55% of Quebecers are opposed to UNDRIP and should not have any rights beyond what is available to all Quebecers in the province. Questionable timing coming on the heels of the heightened awareness of the inequalities endured by Indigenous people in Quebec through the systemic racism validated by the Viens Commission and their 142 recommendations and denied by Premier Legault who also reversed his previous support for UNDRIP.

Compare the above with the following Léger survey results from August 2020:
* Almost all non-Indigenous Quebecers (92%) think that First Nations are subject to racism or discrimination in Quebec.
* 80% of respondents consider that First Nations people face additional obstacles in the different facets of their lives.
* 70% of those who have an opinion are of the opinion that, currently in Quebec, First Nations are not treated on the same footing as non-Indigenous Quebecers in social structures.
* 91% of respondents believe that the Quebec government has an important role to play in achieving and maintaining equality between First Nations and non-Indigenous Quebecers.
Ontario
June 11, 2020 – Sol Mamakwa, Kiiwetinoong MPP and Indigenous Affairs critic for the NDP is continuing “his year-long fight for the rights of Indigenous people across Ontario.” Bill 76 The United Nations Declaration on the Rights of Indigenous Peoples Act. 2019” is stalled. When asked if he would pass and implement UNDRIP legislation Premier Ford sidestepped the question and stated “there is never one step to do reconciliation.”

Institutional Support

Sept 13, 2020 – The Coalition for the Human Rights of Indigenous People (Indigenous Nations and representative organizations, human rights groups, and faith communities) urge the Minister of Justice to table legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples as soon as Parliament convenes this fall. The federal government, both during and after the 2019 federal election, committed to adopting a bill containing at least the same essential provisions as Bill C-262, a private members bill that was passed by the House of Commons in 2018. To date, the obligation to implement the Declaration has been affirmed nine times in consensus resolutions of the UN General Assembly. No state in the world formally opposes the UN Declaration.

Objections to implementation legislation have focused largely on the UN Declaration’s affirmation that Indigenous peoples have the right to make their own decisions about what happens on their territories including resource development. Free, prior and informed consent is an essential component of Indigenous peoples’ right of self- determination, which includes the jurisdiction to make their own decisions about how their lands will be used and developed. Standards of consent are already part of Canadian law, dating back to the first Peace and Friendship Treaties. In the 2014 Tsilhqot’in Nation decision, the Supreme Court explicitly recognized that the right to grant or withhold consent is part of the inherent title rights of Indigenous peoples.

https://nationtalk.ca/story/bcafn-statement-un-declaration-on-the-rights-of-indigenous-peoples-adoption-of-federal-implementation-legislation-must-not-be-delayed

Aug. 17, 2020 – Although not directly related to UNDRIP, the $2.5 million SSHRC funding over six years to support the Rebuilding First Nations Governance (RFNG) project, an investigation into transforming Indian Act governance, seeks Indigenous alternatives to the stranglehold the Indian Act has over all aspects of Indigenous lives in Canada. RFNG is “an alliance of First Nation communities and tribal councils, and academic researchers and practitioners, committed to working from the community level up to end Indian Act governance and build alternatives that realize the inherent right to self-government as affirmed in the Constitution Act”. The question is “How does the 6-year timeline impact the governments implementation plan for UNDRIP? See additional details in C2A # 43 Federal Government commitment.

Calls to Action

Call to Action # 43Fully adopt and implement UNDRIP as the framework for reconciliation
Call to Action # 44Develop national action plan and strategies to achieve UNDRIP goals

Current Problems and Issues with implementing UNDRIP

The main issues have to do with an ongoing lack of consultation with First Nations, Métis and Inuit people on issues that directly impact Indigenous rights and title, Indigenous laws and traditions and closing socio-economic gaps. Federal, Provincial and Territory governments persist on viewing Indigenous issues through a colonial lens that perpetuates the issues not resolve them.

Federal

The provincial governments of Alberta, Saskatchewan, Manitoba, Ontario, Québec and New Brunswick asked the federal government to postpone tabling Bill C-15 “The UN Declaration” in the House of Commons

Dec. 3, 2020: National Post – On Nov. 27, Indigenous relations ministers from Ontario, Quebec, Alberta, Saskatchewan, Manitoba and New Brunswick sent a joint letter to David Lametti, Minister of Justice and Attorney-General of Canada and Crown-Indigenous Relations Minister Carolyn Bennett that protested the six-week time window they say they were given for input on the draft bill and requested a delay in the tabling of the Bill. “This delay is necessary both to allow for appropriate engagement with provinces, territories, and Indigenous partners on the draft bill, and to allow time for Canada to fully and meaningfully consider and address the legitimate, significant concerns that we have already raised about the draft bill in its current form.”

The letter said the COVID-19 pandemic has hampered their ability to fully study the legislation and consult with stakeholders. “A hasty adoption of ambiguous legislation that could fundamentally change Confederation without the benefit of the widespread and necessary national and provincial consultation and consensus not only risks undermining reconciliation, but will create uncertainty and litigation and risk promoting deeper and broader divisions within our country,” the letter said.

As the Minister of Justice David Lametti pointed out, UNDRIP was adopted by the UN in 2007, endorsed by Canada in 2016 and spent two years being debated in the House of Commons and the Senate after being tabled by MP Romeo Saganash on April 21, 2016. On June 21, 2019, only the 22 unelected Conservative members in the senate killed Bill-262. In that context, the objections of the conservative premiers of the six provinces – Ontario, Québec, Alberta, Saskatchewan, Manitoba and New Brunswick – are raised through the same distorted lens that sees a threat to their economic development agenda of natural resource projects on Indigenous lands. As noted in an earlier post, the conservative mantra is “this land is our land, not yours!”

The letter also pointedly asks for a delay for consultation and review which all the provinces have unilaterally and consistently denied to Indigenous peoples. For example:

ProvinceLegislation and/or Policy decision
AlbertaBill 1 “The Critical Infrastructure Defense Act”; Suspension of Environmental Monitoring and Reporting during COVID
SaskatchewanPillars for Life: Suicide Prevention Strategy”; Métis Nation lawsuit over land use and commercial activities; Aboriginal title; lack of consultation on mining on Métis territory
ManitobaKeeyask Hydro Electric project
OntarioOmnibus Bill 197 “COVID-19 Economic Recovery Act”, Bill C-74 “The People’s Health Care Act”; Ring of Fire consulting, “1492 Land Back Lane” protests while land claim in still in courts; Slashing funding for Legal Aid; Bill 132 “Better for People, Smarter for Business Act, 2019”
QuébecBill 66 – An Act respecting the acceleration of certain infrastructure projects; re-opening mining in Nunavik during pandemic; Hydro-Québec expropriation of Innu lands
New BrunswickPeace and Friendship Treaties lawsuit; Independent police investigation into Indigenous deaths  
Federal government failure to issue adequate compensation to Lac Seul First Nation for flooding their ancestral lands to advance a hydro-electric project

Oct. 28, 2020: Assembly of Manitoba Chiefs (AMC) – Supreme Court of Canada grants intervener status to AMC, along with many others, in the Southwind case. Lac Seul Band launched the suit against the Federal Government for breaching their fiduciary duty when they flooded reserve land to advance a hydro-electric project. This project would see massive profits for the government, while leaving the First Nation of Lac Seul destitute and without reparations or adequate compensation for the devastation of their land and lost opportunity. Lac Seul, however, subsequently appealed the Federal Court of Appel decision stating that the compensation amount should have been calculated based on both significant cultural loss and on the use of the flooded land for hydro profits, meaning that the ordered amount did not accurately reflect the loss suffered.

“The Federal Government owes all First Nations a fiduciary duty which is a long standing obligation to act in the best interests of First Nations. Clearly, profiting on the backs of First Nations to their detriment is not honouring the fiduciary obligation and Lac Seul should be compensated to fullest extent considering any and all losses suffered by the Nation,” said AMC Grand Chief Arlen Dumas. Grand Chief Dumas concluded, “This appeal marks a significant opportunity for Supreme Court to provide clarity on how, in light of the unique Crown-First Nations relationship, equitable compensation can best be assessed when the Federal Government has breached its treaty obligations or fiduciary duty to a First Nation.”

April 23, 2020First Peoples Law -The Supreme Court of Canada granted Lac Seul First Nation’s application for leave to appeal the Federal Court of Appeal’s decision in Southwind v. Canada. The Supreme Court is expected to clarify how equitable compensation is calculated where a First Nation’s reserve lands have been taken or damaged by the Crown in the absence of a valid surrender or expropriation. The decision could directly affect First Nations across Canada dealing with claims relating to the unlawful taking of their reserve lands.

Concerns have also been raised that the Court’s approach is inconsistent with the provisions governing compensation for specific claims under the Specific Claims Tribunal Act, and that going forward, the Crown could rely on the lower court’s interpretation of the ‘appropriation’ provision in Treaty #3, which was arrived at in the absence of a proper evidentiary record setting out the parties’ respective understandings of the terms of the Treaty.

The Supreme Court’s decision is expected to address these issues and provide clarity. In particular, the Court will be asked to consider the application of fiduciary principles in respect of the taking of reserve lands without a surrender or expropriation and the determination of equitable compensation in this context.

Ongoing refusal of federal government to define “Moderate Living” fishery for Mi’kmaw communities

Sept.18, 2020 “Toronto Star – “In its 1999 Marshall decision – borne of a court case against Mi’kmaw fisherman and icon Donald Marshall – the Supreme Court affirmed the right of First Nations to hunt, fish and gather in pursuit of a “moderate livelihood.”” 21 years later, the federal government has failed to define “moderate livelihood. The Sipekne’katik First Nation has therefor created its own self-regulated moderate living” fishery issuing seven licenses Oc. 21, 2020 – Sipekne’katik First Nation awarded an interim injunction “authorizing police to arrest anyone whose interference, blockades or threats keep the community from carrying out its fishery…

Chief Michael Sack has indicated that “The plan…includes conservation measures, regulations for the boats and their safety and compliance officers”. The main concern for the non-Indigenous fisherman is the sale of the lobsters outside of the regulated commercial fishing season; an issue that the band and community will address.

In the meantime, the governments of Canada and Nova Scotia insist that the laws of Canada must be obeyed. The Supreme Court of Canada’s September 17, 1999 decision in the DonaldMarshall case affirmed a treaty right to hunt, fish and gather in pursuit of a ‘moderate livelihood’, arising out of the Peace and Friendship Treaties of 1760 and 1761.The Decision affected 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec. (Government of Canada website, Sept, 2020.

Oct. 1, 2020Kwilmu’kw Maw-klusuaqn Negotiation OfficeMi’kmaw harvesters from the Potlotek Mi’kmaw community will exercise their inherent right to fish for a moderate livelihood under their communities own self-governed fisheries plan. The harvesters will take to the waters of St. Peter’s Bay on the annual celebration of Treaty Day, a date to recognize and honor the treaties signed between the Mi’kmaq and the Crown in the 1700’s. The Netukulimk Livelihood Fisheries Plan is a step towards self-governance. Potlotek has been working collaboratively with the Assembly of Nova Scotia Mi’kmaw Chiefs, Kwilmu’kw Maw-Klusuaqn Negotiation Office (KMKNO), their community harvesters and community members to develop a plan that follows the Mi’kmaw traditional beliefs of Netukulimk, respects conservation, follows safety protocols and allows for a sustainable and responsible fishery.

Netukulimk is the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community. Netukulimk is achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of our environment.

Oct. 20, 2020: Kwilmu’kw Maw-klusuaqn Negotiation Office – Assembly of Nova Scotia Mi’kmaw Chiefs (Assembly) met with Minister Bernadette Jordan, Department of Fisheries and Oceans; Minister Carolyn Bennett, CIR and Minister Marc Miller, ISC to further discuss how the Mi’kmaq will be exercising their right to fish for a moderate livelihood. The Assembly pushed for Canada to accept the Community Netukulimk Livelihood Fishery Management Plans, as these plans have been developed by communities, and have been provided to and accepted by the Assembly. The Mi’kmaq of Nova Scotia are well within their Rights to fish under these Plans and Department of Fisheries and Oceans (DFO) needs to recognize that authority.

Oct. 23, 2020: Kwilmu’kw Maw-klusuaqn Negotiation Office – Representatives of the DFO Conservation and Protection (C&P) officers, who seized traps from Potlotek and Eskasoni authorized harvesters, refused to attend the consultation discussions (between DFO and Assembly of Nova Scotia Mi’kmaw Chiefs) to explain their actions and DFO representatives in attendance said they would not exercise authority over C&P officers. While the Mi’kmaq of Nova Scotia have done their due diligence, bringing all documents, including Community Netukulimk Management Plans, to the table for transparent and fulsome discussions, what is being said by the Minister publicly about working in good faith with the Mi’kmaq, is not the direction that her Negotiations Team is taking. Since the Mi’kmaq of Nova Scotia see the discussions with Canada failing them at a critical moment, the Mi’kmaq are now prioritizing a new way forward.

Dec. 21, 2020 – The Unified Fisheries Conservation Alliance (UFCA), a newly formed alliance of commercial fishery stakeholders, is calling on the Government of Canada to establish clear, lasting, responsible, regulatory oversight for all fisheries – commercial, food, social, and ceremonial. Established in Nov. 2020, the UFCA represents thousands of multi-species commercial fishermen, fishery associations, and associated businesses from across Atlantic Canada and its membership is growing. The UFCA believes that Indigenous and non-Indigenous fishermen can work side by side like they do today in the commercial fishery and recognizes and acknowledges the importance of cooperation with Indigenous communities, and that Indigenous fishermen have a right to fish for commercial, food, social, and ceremonial. “We want to work with the Government of Canada and First Nations to inform and understand viewpoints and ultimately establish regulatory certainty. Our members reject all forms of racism, intolerance, and violence, and believe there is a path to move beyond the controversies and heated rhetoric of recent months, to a positive outcome for all,” said Sproul.

The UFCA includes members from:

  • Bay of Fundy Inshore Fishermen’s Association
  • Brazil Rock 33/34 Fishermen’s Association
  • Coldwater Lobster Association
  • Scotia Fundy Inshore fishermen’s Association
  • Cape Breton Fish Harvester’s Association
  • Eastern Shore Fishermen’s Protective Association
  • Fundy North Fishermen’s Association
  • Guysborough County Inshore Fishermen’s Association
  • Richmond County Inshore Fishermen’s Association
Conservative Party of Canada blocks UNDRIP

June 21, 2019 – On National Indigenous Peoples Day, the conservatives in the Senate effectively killed “Bill C-292 – An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous PeoplesThe Conservative Party in the House of Commons had previously opposed passage of UNDRIP that was nevertheless passed in the House of Commons by a vote of 206 vs 79 (all conservatives)

The UN Declaration, which provides the minimum standards for the survival, dignity and human rights of Indigenous peoples and framework for reconciliation, has been voted on and approved on four occasions by the United Nations General Assembly since its initial introduction on Sept. 13, 2007 where the only opposition was from Canada, the United States, Australia and new Zealand: colonial countries with large Indigenous populations.

April 9, 2019 – Conservative Senators prevented Bill C-262 being sent to Committee for review. Passage of Bill C-262 would establish a legislative framework for future governments to work collaboratively with Indigenous peoples to interpret and apply the global human rights standards set out in the 2007 UN Declaration on the Rights of Indigenous Peoples.

Last year, an overwhelming majority of Members of Parliament voted (206 to 79) to adopt Bill C-262.  No Conservatives supported the bill. The Senate was scheduled to conclude second reading of the Bill yesterday, but a vote to move it to Committee for debate was prevented by two procedural motions by Conservative senators and a question of privilege which interrupted Senate business and left no time to address Bill C-262.

After more than two decades of deliberation in the United Nations, and more than a decade of political debate in Canada, the opportunity to finally move ahead with concrete, meaningful implementation of the UN Declaration must not be squandered by unprincipled stalling tactics,” said Grand Chief Wilton Littlechild, former Commissioner with the Truth and Reconciliation Commission. Our organizations are calling on Conservative leader Andrew Scheer to ensure that Conservative Senators abandon these unprincipled stalling tactics so that consideration of Bill C-262 can proceed.

Sept. 13, 2019 – “The Coalition for the Human Rights of Indigenous Peoples” (www.declarationcoaliton.ca) has stated: The next session of Parliament must build on this foundation by prioritizing the earliest possible adoption of government legislation that fully reflects or exceeds Bill C-262. Key elements would include:

  • Repudiation of colonial laws, policies and doctrines.
  • A commitment to work collaboratively with Indigenous peoples in every aspect of implementation of the Declaration.
  • A process to reform federal laws, policies and regulations to ensure they meet or exceed the minimum standards set out in the Declaration.
  • A commitment to develop a national action plan for collaborative implementation of the Declaration’s provisions.
  • A requirement for regular reporting to Parliament so that there is transparency and accountability for the progress made.

The Declaration is not abstract or merely aspirational. It affirms the minimum standards urgently needed to address and heal the harms inflicted on Indigenous peoples by a long history of racist and discriminatory laws, policies, and practices.

http://nationtalk.ca/story/the-next-session-of-parliament-must-prioritize-protection-and-fulfillment-of-the-human-rights-of-indigenous-peoples

Re-affirmed on Sept. 13, 2020:

https://nationtalk.ca/story/anniversary-of-the-global-adoption-of-the-un-declaration-on-the-rights-of-indigenous-peoples

http://nationtalk.ca/story/ubcic-conservative-senators-jeopardize-crucial-human-rights-legislation-indigenous-peoples

Federal Government ignores Free, Prior and Informed Consent

May 6, 2019: Cision – 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.

Federal and Provincial governments refuse to accept Aboriginal Title

Feb. 2, 2019: Policy Options – 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.” (Policy Options Politique)

https://policyoptions.irpp.org/magazines/february-2019/canadas-prove-it-approach-to-aboriginal-title/

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.”

BC

Government of BC announcement of continued construction of Site C Dam did not address the impacts on Treaty 8 territory or the fact that significant legal challenges remain outstanding

March 3, 2021: First People’s Law – The Site C dam, downstream of the WAC Bennett Dam, capitalizes on the destruction of Treaty 8 territory and the ongoing infringement of treaty rights. It will also cause additional, irreversible impacts on the lands and rights of Indigenous Peoples in Treaty 8 on both sides of the Alberta-BC border.

In July 2020, the BC government revealed there were significant structural problems with the foundation of the Site C dam. The Province commissioned a series of expert reports to assess the safety issues but allowed construction to proceed in the interim. The Province also refused to share the reports with First Nations or the public. Six months later, the BC government announced it had determined, based on the expert reports, that the proposed solutions were adequate and that it intended to move ahead with the project. The announcement did not address the impacts on Treaty 8 territory or the fact that significant legal challenges remain outstanding. It also did little to resolve First Nations’ safety concerns, particularly given BC’s refusal to share the reports until after the decision was issued.

The Indigenous signatories to Treaty 8 entered into treaty to establish a relationship of mutual respect, benefit and peaceful co-existence with incoming settlers. In exchange, the Crown promised, among other things, that the Indigenous treaty parties would be free to hunt and fish after the treaty as they would be if they never entered into it. The Site C dam, which would result in the permanent destruction of significant portions of Treaty 8, is antithetical to this promise.

BC’s decision to forge ahead with the Site C project, even when both treaty rights and public safety is at stake, is further testament to how treaty rights can be undermined when the entity that determines whether a project goes ahead–the provincial government–also has a vested interest in the project proceeding. 

However, BC’s failure to honour its treaty obligations does not mean Site C will proceed. First, courts have confirmed the importance of implementing treaties in a way that respects and protects the Indigenous treaty parties’ rights and territories, including by taking into account the cumulative effects of resource development and justifying any infringement of the treaty. The BC Supreme Court will determine whether the Province has met these obligations in West Moberly First Nations’ treaty infringement action, which is scheduled to be heard over 120 days beginning in March 2022.

In addition, there are signs the Province’s announcement will serve to strengthen First Nations’ commitment to work together in Alberta and BC to ensure their rights are respected. In February, the Treaty 8 First Nations of Alberta issued a Declaration of Indigenous Solidarity calling for the immediate suspension of the Site C project until the Crown’s consultation obligations are fulfilled and until the court has determined West Moberly’s treaty infringement claim. 

https://www.firstpeopleslaw.com/public-education/blog/a-monument-to-indigenous-environmental-racism-bc-doubles-down-on-site-c-dam

First Nations leadership Council has raised concerns with BC’s Bill 41 “The Declaration on the Rights of Indigenous Peoples Act (Declaration Act)” passed on November 26, 2019

Nov. 26, 2020: First Nations Leadership Council (FNLC) – on 1st anniversary of the unanimous passage of Bill 41, the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), on November 26, 2019, the FNLC has stated: “Instead of aligning its actions and laws with the Act, we have seen the Province push forward in recent months with several pieces of legislation, including Bill 22 Mental Health Amendment Act and Bill 17 Clean Energy Amendment Act, without engaging with First Nations Title and Rights holders and without regard to the detrimental impacts these bills stand to have on First Nations and the rejection of these bills that many First Nations publicly provided. The FNLC urges the NDP government to live up to its commitments under the Declaration Act, including ensuring new and existing laws are consistent with the UN Declaration, and fulfilling its election commitment to establish a dedicated Secretariat to oversee the Declaration Act’s implementation.

“We will not stop holding the provincial government to their commitments to align legislation and to build a strong action plan which addresses fundamental and significant issues such as self-determination, lands, territories and resources, economic and fiscal relations, cultural and language, social well-being and racism,” stated Regional Chief Terry Teegee.

We are encouraged by the new majority government’s commitment to ‘improving Indigenous input on provincial policy and legislation’ and to create a dedicated Secretariat to ensure all new legislation and policies are consistent with the UN Declaration in consultation and cooperation with Indigenous leadership. We look forward to actively engaging with Premier Horgan and his new Cabinet to ensure this new Secretariat has a mandate to succeed.”

“As the NDP enters into a new term with a significant majority government, it is critical they make the necessary and overdue advancements that will align provincial policy and legislation with the UN Declaration. They must consult and work closely with First Nations every step of the way, including relying upon Indigenous leadership and guidance when establishing a dedicated Secretariat that will ensure government policies and legislation are consistent with the UN Declaration. 

Coastal Gas Link has RCMP remove Wet’suwet’en women protestors conducting ceremony on traditional lands

Oct. 15, 2020: Coastal GasLink called in the RCMP to remove a group of Wet’suwet’en women and community members who are holding ceremony at a proposed drill site for Coastal Gaslink’s pipeline. Union of BC Indian Chiefs (UBCIC) – UBCIC stands in solidarity with the Indigenous land defenders who are protecting the Wedzin Kwa, the river that sustains and gives life to their Nation, from test drilling. These land defenders are lawfully exercising their right to steward their unceded territories and strengthen their cultural ties to their lands through the sacred responsibility of prayer, smudging, and ceremony. The presence of the RCMP and the threat they represent – surveillance, intimidation, arrest, discrimination, and violence – undermines the authority and self-determination of the Wet’suwet’en Hereditary Chiefs who have full jurisdiction over Wet’suwet’en lands.

Given the forthcoming provincial election and renewed statements from political leaders regarding the importance of reconciliation and advancing Indigenous relations, it is worrisome that systemic violations of fundamental Indigenous and human rights continue to occur over major energy projects such as the CGL pipeline and the Trans Mountain Expansion Project (TMX). Given the ongoing COVID-19 pandemic and the myriad of additional challenges First Nations are facing, the Province can no longer afford to deem industrial projects like the CGL pipeline and the TMX as essential services and adopt a “business as usual” approach. The health and safety of Indigenous communities must be prioritized.

Indigenous land defenders and community members cannot be criminalized and targeted for asserting their Title and Rights and conducting ceremonial and cultural traditions; this stands in acute opposition to the provincial government’s obligations under the Declaration on the Rights of Indigenous Peoples Act.

BC’s Bill 17 – 2020 Clean Energy Amendment Act, 2020 directly threatens Tŝilhqot’in clean energy aspirations as captured in the Tŝilhqot’in Nation Clean Energy Plan.

July 15, 2020: NationTalk -The Tŝilhqot’in Nation has been actively involved in the Ministry of Energy, Mines and Petroleum Resources’ Comprehensive Review of BC Hydro, which contains many progressive ideas which, if intelligently implemented, would have positive impacts on energy policy benefiting all British Columbians. The changes contained in Bill 17 have never been raised during these engagements and these changes diminish the progressive ideas discussed in that review. It is disconcerting to realize that while this government was “consulting” on BC Hydro’s future, Bill 17 was secretly being developed.

Bill 17 would introduce a poorly conceived policy detrimental to regional economies and CleanBC targets, as well as the economic and self-sufficiency aspirations of First Nations in this province. The government’s myopic focus on the single priority of ‘affordability’ has blinded it to the ramifications this Bill has for many other government priorities. On the altar of ‘affordability’ would be sacrificed: Reconciliation, First Nations’ economic and governance aspirations, regional economic development opportunities, the energy self-sufficiency we enjoy in BC, clean energy and the NDP’s much touted environmental goals. 

Open Letter from Union of BC 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.

First Nations Supreme Court challenge to the Trans Mountain Pipeline approval

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.

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

Alberta

Confederacy of Treaty Six First Nations protest against Bill C-15: “The UN Declaration”

April 21, 2021 – The Confederacy of Treaty Six First Nations opposes Bill C -15 An Act Respecting the United Nations Declaration on the rights of Indigenous Peoples. They see the legislation as undermining their sovereign relationship with the government of Canada, Their treaty is with the crown and they object to Canada negotiating with the Assembly of First Nations who do not have a mandate or legal authority to negotiate on behalf of Treaty Nations.

Bill-C15 will have a negative impact on our Treaty Rights” states Grand Chief Watchmaker. Canada is unilaterally attempting to change the international nature of our relationship and place us into a domesticated realm. During a time when discussions ought to be about reconciliation, respect, and sovereignty, we’ve reverted back to the government’s old assimilation and undermining tactics.

The Treaty Peoples started to organize to appear before the Committee to voice our concerns and at that time, the hearings were stopped. This process has been flawed and continues to be flawed.

Governments of Alberta and Canada appealed a lower court decision granting Beaver Lake First Nation a partial advanced cost order allowing them to continue their 10-year court case over their Treaty rights

Jan. 22, 2021: LAC-LA BICHE, AB – The Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nations’ partial advanced cost award. After ten years of litigation, including 5 years where Alberta and Canada unsuccessfully tried to strike its claim, the Beaver Lake Cree could no longer afford the litigation. Recognizing it was undisputed that the Beaver Lake Cree are financially impoverished and that its publicly important, meritorious case deserved to be heard, in 2019, the Alberta Court of Queen’s Bench granted the Beaver Lake Cree a partial advanced cost order that would allow it to continue its case to trial. However, in 2020, during the pandemic, Alberta and Canada successfully appealed the decision.

For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come.

It argued the Alberta Court of Appeal applied the wrong test in determining whether or not the Beaver Lake Cree could genuinely afford the litigation, and that courts are divided on whether affordability means the Nation must exhaust all funds potentially available, including by liquidating assets, or whether other priorities the Nation has for the funds must be considered. The Beaver Lake Cree argued clarity from the Supreme Court was required on how the test for advanced costs applies to a First Nation government charged with managing poverty. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the court must consider that it is not open to a First Nation government to exhaust all the Nation’s available funds in favour of a singular cause.  Rather, affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute. The Nation will argue the partial advanced costs award should be restored so a decision on its novel Treaty Rights case can be rendered.

Government of Alberta’s continued refusal to acknowledge and accept Aboriginal Rights and Title

Sept. 1, 2020: NationTalk – On the day celebrating Alberta’s entry into Confederation 115 years ago, Premier Jason Kenny acknowledged that “Alberta’s history of human habitation dates back more than 10,000 years when the first Indigenous people migrated to Alberta to find a land rich in bounty. Albertans have celebrated years of growth and economic prosperity despite the litany of challenges ranging from the Spanish flu to the Depression to two world wars etc. etc. etc. “Yet, as Albertans have always done – from the protracted fight to wrestle ownership of our own natural resources from the federal government in 1930 to our responsible civic response to slowing the spread of COVID today – we will once again emerge stronger. “This is why I’m proud that our government has officially declared September 1st as Alberta Day to celebrate our great province and all that makes us, as our provincial motto says, strong and free.”

The irony of acknowledging Indigenous “land rich in bounty” with his subsequent statement of “wrestling ownership of our own natural resources” from the federal government” provides a glaring insight into the fundamental i- and so far intractable – issue impacting Indigenous relations in Canada: a failure by all levels of government to acknowledge and accept Aboriginal Rights and Title even after the Supreme Court of Canada declared that Aboriginal title exists in law through the Tsilqot’in Nation decision in June 2014 and Delgamuukw in 1997.  Jason Kenny basically confirmed with his statement that any Aboriginal claim for an economic benefit from the “land rich in bounty” is irrelevant since the provincial government “owns” the natural resources (Doctrine of Discovery and terra nullius). If the 115 years of growth and economic prosperity fuelled by natural resources were for all Albertans why are Indigenous people who originally “owned” those very same natural resources in the first place, the most impoverished.

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.

“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.”

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.

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

  • 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

June 23. 2020 – All temporarily suspended reporting and monitoring requirements will come back into effect on July 15, 2020. The Alberta Energy Regulator’s (AER) decision to end its temporary suspensions follows steps taken by the Government of Alberta, including the repeal of Ministerial Order 219/2020 and Ministerial Order 17/2020.

http://nationtalk.ca/story/aer-temporarily-suspended-requirements-to-resume-july-15

Federal and Provincial governments refuse to accept Aboriginal Title

Feb. 2, 2019: Policy Options – 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.” (Policy Options Politique)

https://policyoptions.irpp.org/magazines/february-2019/canadas-prove-it-approach-to-aboriginal-title/

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.”

Manitoba

Manitoba Conservative government issued permanent licences for Churchill River Diversion, Lake Winnipeg Regulation and Jenpeg Generating Station to Manitoba Hydro that infringe on the Aboriginal and Treaty rights

May 14, 2021: NationTalk – O-Pipon-Na-Piwin Cree Nation, Treaty 5: The Summit of Treaty Five Sovereign Nations comprising of 40 First Nations in Manitoba, Saskatchewan and Ontario will stand with the Treaty 5 First Nations and individual Treaty 5 holders who will be adversely impacted by the issuance of a permanent licence for Churchill River Diversion, Lake Winnipeg Regulation and Jenpeg Generating Station in Manitoba. There are numerous First Nations that are directly impacted.

On May 13, 2021, the Manitoba Conservative government unilaterally made the decision to issue these licences which infringe on the Aboriginal and Treaty rights and will have an adverse cumulative impact on the environment by Hydro development. Once again, inadequate consultations; a legal obligation Manitoba holds, and an absence of meaningful accommodation are echoed among Treaty 5 people. With the increased concerns on the lack of fulfillment of the Treaty provisions, the Summit of Treaty Five Sovereign Nations recently adopted the Declaration on Natural Resources on Treaty Territory, which they vow to uphold.

Chief Clarence Easter, Chemawawin Cree Nation said, “Our history began many centuries before Canada became a country. Our ancestral lineage to this land is sacred and immemorial. Our homelands have never been surrendered, released, or been conquered. Indigenous people allowed access to the land to build this great country. Time is long-overdue for our Treaty partners to respect Indigenous nations power to decide our own fates according to inherent jurisdictions. While this country flaunts the flag of reconciliation, we are once again seeing an erosion of the spirit and intent of the Treaty: to share the land. Having said that, I think it’s a travesty that the province of Manitoba is not following the rule of law on consultation and section 35 of the constitution that recognises our rights regarding hydro development in the north.” Chief Sheldon Kent, Black River First Nation stated, “Regardless of continued opposition to this project and continued demands for fair and adequate consultation, regardless of Canada’s recent adoption in principle of UNDRIP’s standards to provide free prior and informed consent, Manitoba has made the decision to grant a permanent license for the Churchill River Diversion, once again leaving First Nations as an afterthought. We have time and time again honoured our Treaty by sharing the land and resources while the provinces reject our participation and leave us impoverished economically, socially and, without access to lands for ceremony. There is no honour of the Crown when it refuses to work with First Nations as equal partners and, instead commits ongoing cultural genocide by eroding our livelihood and the articles of Treaty.”

Manitoba First Nations protest Bill 57 “Protection of Critical Infrastructure Act”

April 23. 2021: Fisher River Cree Nation, Treaty 5 Territory – Manitoba First Nations protest Bill 57 “Protection of Critical Infrastructure Act” — also called the anti-protest bill. Fisher River Cree Nation, Treaty 5 Territory – The Treaty 5 Nations in Saskatchewan, Manitoba and Ontario will resist all permits, licenses or other land dispositions issued by the governments unless approvals are obtained by First Nations in accordance with the Declaration on Natural Resources on Treaty 5 Territory. Treaty 5 covers most of central and northern Manitoba and extends into the Saskatchewan and Ontario borders. The Declaration on Natural Resources on Treaty 5 Territory was adopted at the Summit of Treaty 5 Sovereign Nations on January 27 & 28, 2021. Chief Sheldon Kent, Black River First Nation stated, “I believe the work permits issued by the governments must cease until the baseline and standards are met according to our expectations and approvals. Land allocation disparities and compensation for loss of use are an ongoing concern especially the lack of access of our own resources. New legislative restrictions put in place by Manitoba exasperates this concern.”

Chief David Crate, Fisher River Cree Nation stated: “There is now a paradigm shift on how we deal with natural resource extractions in our territories and its time we deal with this in the spirit of Treaty Justice, Truth and Reconciliation, and United Nations Declaration on the Rights of Indigenous Peoples. As a mover of the declaration, I am fully aware of the challenges ahead to fulfil our Treaty rights. The government has mitigated on the duty to consult doctrine’s intent and purpose to adequately accommodate the First Nations. Proponents such as Berger, Sunterra Horticulture (Canada) Inc. and Sun Gro Horticulture acquire permits to extract peat moss in our territory but have not met our standards and concerns of the wildlife”.

Supreme Court to hear First Nations constitutional orders are distinct but equal to Euro-Canadian laws

Sept. 21, 2020 – The Assembly of Manitoba Chiefs (AMC) will be intervening at the Supreme Court of Canada (SCC) in a significant and potentially transformational hearing to argue that First Nation constitutional orders are distinct but equal to Euro-Canadian laws. On the surface, the case is about the Greenhouse Gas Pollution Pricing Act, the federal government’s carbon tax, and whether it intrudes on provincial jurisdiction. 

However, neither the federal nor provincial governments acknowledge the existence of First Nations laws.  The AMC, represented by the Public Interest Law Centre (PILC), will argue that the Supreme Court has a unique opportunity to address a much deeper reality.  The Court will address the most fundamental constitutional question of our time – the means of addressing climate change. The AMC will propose an analysis, which must recognize the existence of First Nations constitutional orders. The AMC cautions against the incorporation of First Nations laws within the existing Euro-Canadian federalism analysis to address the constitutional question. Instead, the AMC proposes a return to the relationship as it was originally intended by Treaties – one between equal nations with distinct legal traditions. 

MC Grand Chief Arlen Dumas said, “First Nations people and laws have always been here.  These laws continue to govern First Nations’ relationships with the Creator, Mother Earth and all living beings. They are grounded in mutual respect and underpin the Treaty relationship. Our First Nations laws constitute Canada’s first constitutional order, alongside the French Civil Law and English Common Law. This is a constitutional debate that must acknowledge our nation-to-nation relationships and help frame reconciliation.” 

The AMC contends that this court case exposes an outdated, inaccurate and destructive narrative about Canada. First Nations laws have been recognized by the Supreme Court, however recent lower court decisions have sent contradictory signals about the relationship between Euro-Canadian laws and First Nations laws. This lack of clarity has led to a patchwork of inconsistent decisions.  

“This court case offers an opportunity for a fundamental paradigm shift in the relationship between First Nations and non-First Nations people,” says Joëlle Pastora Sala, PILC attorney, who will argue at the Supreme Court via Zoom from Winnipeg. “We can create a more meaningful implementation of reconciliation – grounded in the spirit and intentions of treaties. Reconciliation, as outlined in the Truth and Reconciliation Commission’s Calls to Action, requires respect for First Nations laws as equal and distinct from Euro-Canadian laws. The Supreme Court has a key role to play in shaping the path forward.”  

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.

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

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

Premier of Manitoba is firmly opposed to implementation of UNDRIP

Mar. 9, 2020: Globe and Mail – Premier Brian Pallister unequivocally states that implementing UNDRIP would compound the havoc experienced by Canadian families and businesses caused by the uncertainty in securing clarity and predictability around Indigenous consultation and environmental approval processes”. In other words, the “new federal government legislation on the United Nations Declaration on the Rights of Indigenous People (UNDRIP) is problematic. He references “thirty-eight” years of progress “on developing a coherent framework for how to respectfully consult and accommodate Indigenous concerns.”

Premier Pallister’s fundamental solution is twofold and is viewed through a colonial lens:

  1. A “well developed legal framework needs to be reaffirmed and reinforced”. i.e. one that excludes Indigenous legal traditions and practices
  2. Free, Prior and Informed Consent “would enshrine in Canadian law renewed public signals that are already encouraging veto-based demands, as well as illegal blockade actions – in defiance of court orders.” (i.e. what we want we get, what you want, you don’t”.

His underlying premise is that UNDRIP will undermine the legal, investment and regulatory cohesion that provide the foundations to advance Canadian society.

April 10, 2020 – Indigenous Bar Association raises the following points to point out the flawed logic of Premier Pallister’s opinion piece:

  • Canadian courts have and continue to cite the UN Declaration to inform domestic law. Over 70 Canadian cases have considered the UN Declaration and its application. It is a longstanding legal principle that Canadian courts will use conventions, declarations, and treaties supported or adopted by Canada internationally as an interpretative aid when defining and enforcing domestic laws
  • Governments as well as industry have frequently recognized that projects grounded on the support of Indigenous Peoples are the pathway to advancing reconciliation and securing the economic certainty that Premier Pallister seems so worried about
    • in 2015 the World Bank adopted standards that incorporate Free Prior and Informed Consent (“FPIC”) for funding decisions of projects impacts Indigenous Peoples;
    • since 2013 the International Council on Mining and Metals has explicitly encouraged approaches grounded on the principle of FPIC;
    • in 2007, the Prospectors and Developers Association of Canada has acknowledged that FPIC may be a necessary requirement in some circumstances
  • None of these organizations or industries seem to have suffered the “devastating loses…cancelled investments [or] immeasurable damage” that Premier Pallister fears
  • All levels of Canadian courts have clearly—and repeatedly—stated that consultation is based on the fact that Indigenous Peoples owned, occupied, and utilized the lands that make up what is now Canada prior to Europeans coming to this country. Any title that Canada—or indeed Manitoba—asserts is premised on this fact of underlying Indigenous rights. 
  • Canada is not adopting the UN Declaration legislation blindly or without thought and deliberation; it is doing so grounded on decades of careful deliberation, rigorous academic study and debate both internationally and domestically, and moreover, in partnership with Indigenous Peoples. Our societies evolve and extend legal protections for everyone, no longer just for a select few. So too must the law evolve — a point that Premier Pallister opinion overlooks.
  • The provinces and territories have made similar arguments to Premier Pallister’s when the duty to consult was confirmed in law in the landmark Supreme Court of Canada decisions in Haida NationTaku River Tlingit, andMikisew Cree.
    • Canada’s highest court responded that the government’s arguments and fears—similar to those espoused by Premier Pallister regarding regulatory standstills, decision paralysis, and economic uncertainty “do not withstand scrutiny” (para 31 of Haida). That was in 2004. The sky did not fall nor did the economy crumble or reconciliation erode when the duty to consult became law. Nor will it now.
  • Arguing that human rights should not be extended to peoples who have actively been suppressed from exercising such rights for so long by the government is deplorable. A provincial leader using the rights of Indigenous peoples as an attack against the federal government is even more reprehensible.

http://nationtalk.ca/story/indigenous-bar-association-challenges-premiers-understanding-of-law

Saskatchewan

Government of Saskatchewan doesn’t recognize Métis Aboriginal title to land and resources

Sept. 16, 2020: Global News – The Métis Nation – Saskatchewan (MN-S) has launched a lawsuit against the province claiming the government is not doing enough to consult with the Métis over issues like land use, and commercial activities like trapping and fishing. The statement of claim…also says the provincial policy on consultation, issued in 2010, doesn’t recognize Métis assertions of Aboriginal title to land and resources. Last year Métis in Saskatchewan and Alberta filed a massive land claim, seeking roughly 122,000 square kilometers in northwest Saskatchewan and northeast Alberta. The claim seeks redress for land lost to the Métis more than a century ago through the scrip system (stripped Métis of most of their land in the 1880’s after the Northwest Rebellion and acknowledged by the Supreme Court of Canada in 2013)

The lawsuit also points to what it says is a lack of consultation by the province when issuing mineral interests within land claimed by the Métis. The “2010 First Nations and Métis Consultation Policy Framework” allows the government to determine if consultation should be triggered and how much is merited. The MN-S is asking the Court of Queen’s Bench for Saskatchewan for several declarations, including that the 2010 policy is invalid and that the province’s continued reliance on it avoids duty to consult and is dishonourable.

Ontario

The Ontario government has allowed up to 4,000 mining claims in Grassy Narrow territory ignoring the “the land declaration that Grassy Narrows enacted in 2018 to ban industrial or mining activities on their territories?”

April 12-13, 2021: Toronto Star – The Ontario government has allowed up to 4,000 mining claims in Grassy Narrow territory ignoring the “the land declaration that Grassy Narrows enacted in 2018 to ban industrial or mining activities on their territories?” Since the land declaration “the area covered by mineral claims has expanded fourfold, spreading across forest, rivers and lakes…Grassy Narrows leaders and community leaders are troubled that the Ontario government seems to be rolling out the red carpet to mining prospectors while dragging its feet in investigating and excavating the two alleged toxic mercury dump sites near a paper mill property downstream in Dryden, Ontario.

The mining claims fall within the boundary of a proposed Indigenous Protected and Conserved Area that Grassy Narrows has been working with the federal government to setup. Trillium Gold, a BC-based mining company has proposed what would be the “the largest mining exploration project by far in its territory”. The establishment of an IPCA is aimed to safeguard Indigenous rights – including the right to exercise free, prior and informed consent – while maintaining biodiversity and securing a space where communities can practice indigenous ways of life. The chief called for an immediate freeze on claim staking and mining exploration on the territory until the crisis is over. (COVID-19 pandemic)

Canada and Ontario have been collaborating behind First Nations’ backs for the last year

April 5, 2021: NationTalk– Attawapiskat, Fort Albany, and Neskantaga First Nations in the James Bay lowlands have declared a moratorium on April 1 on any development in or to facilitate access to the Ring of Fire mining area in accordance with:

  • Our Indigenous Laws including the Natural Laws of the Creator; 
  • Our Inherent Rights (arising from the reality that we have always have been “in here” in this place in the world); 
  • Treaty No. 9 between our First Nations and the Crown; 
  • International laws including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its requirements for free, prior and informed consent, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and customary laws that protect our right to self-determination, require environmental due diligence, and prohibit destruction of our ability to survive in our environments; and 
  • Canadian domestic laws that adopted and intend to implement UNDRIP (such as the federal Bill C-15); the federal Impact Assessment Act (IAA); Canada’s Constitution including section 35 affirming our Aboriginal and Treaty Rights, and the Charter section 7 being the right to life, liberty and security of the person.

This MORATORIUM is declared from this date and shall stand intact unless and until Canada and Ontario act in accordance with their obligations under the laws stated above, in respect of the Ring of Fire, and agree to a Regional Impact Assessment (RIA).

This MORATORIUM is declared because Canada, through the Impact Assessment Agency of Canada (IAAC) has breached the honour of the Crown, all the laws stated above, and the project of reconciliation and decolonization by acting with duplicity behind our backs in collaboration with Ontario, to render the RIA little but political puffery, with mere token First Nation “involvement”, narrow in its focus and weak in its result. Specifically:

Shortly after the IAA came into force in 2019, some First Nations and others requested an RIA under it for the Ring of Fire;

  • Due to these requests, and given that the Ring of Fire begs for an RIA anyway – it is by definition a regional area for which much large scale mining and infrastructure development is sought – Canada agreed that a RIA would be held;
  • First Nations have expressed our expectation of equal partnership in the RIA, and have been requesting since early 2020 to have the RIA, including planning, not commence until after the pandemic and the crises it has caused in the First Nation communities are over, to ensure that First Nations could engage in this process safely and in accordance with our Laws and Customs;
  • Canada agreed to such suspensions of time, and gave assurances that First Nations would have meaningful involvement at all stages of the RIA, including planning;
  • First Nations have put Canada on notice since late 2020 that they intend to develop a proposal for a First Nations – led, comprehensive and meaningful RIA that does not allow Crown governments to use it as a mere window dressing, box-ticking exercise;
  • Despite Canada knowing of First Nations’ intent and agreeing to time to develop this proposal after the pandemic crisis had ended, Canada now informs us it effectively had no intent of paying any attention to any such proposal; and that Canada and Ontario have been collaborating behind First Nations’ backs for the last year to agree on the terms of reference for the RIA which they will show us in April “for comment”, and in which First Nations have nothing but token involvement.

https://nationtalk.ca/story/first-nations-declare-moratorium-on-ring-of-fire-development

Thunder Bay Community Economic Development Commission (CEDC) Mining Readiness Strategy consultations with First Nations lacking on mines proposed in northwestern Ontario

Feb. 18, 2021: WindSpeaker – “It must be acknowledged that the 15 proposed mining projects that are planned for the next decade are on the ancestral, inherent, customary, traditional lands of many First Nations in Northwestern Ontario and that their free, prior, informed consent will be required before any development proceeds.” — Jason Rasevych, president of the Anishnawbe Business Professional Association (ABPA).

Rasevych points out the CEDC consulted with 25 organizations while preparing its strategy report. Yet only one Indigenous organization, the Nishnawbe Aski Development Fund, was asked for its input. “Too often, First Nation’s socio-economic interests are an afterthought, resulting in delays in mine permitting, regulatory processes and ultimately the social license of Indigenous peoples,” he said. “It must be acknowledged that the 15 proposed mining projects that are planned for the next decade are on the ancestral, inherent, customary, traditional lands of many First Nations in Northwestern Ontario and that their free, prior, informed consent will be required before any development proceeds.

“There is also constitutionally protected rights and Treaties that must be honoured to respect the Indigenous peoples that have lived off the land since time immemorial.”

Rasevych was disappointed that First Nations, tribal councils and even the ABPA were not sought out to provide advice….Without that consultation with First Nations, said Rasevych, these projects could be faced with lengthy delays and possibly even litigation.

Rasevych was disappointed that First Nations, tribal councils and even the ABPA were not sought out to provide advice. “We would have thought we’d be a no-brainer to be a part of this study,” said Rasevych of his association, which was founded in 2019. Besides consulting with Indigenous communities, Rasevych said it is vital that any mining projects also include opportunities for Indigenous people to have active roles with their development. “First Nations require direct economic benefits in mining, and many are seeking a greater role in ownership of mines, power generation, and transmission projects to supply not only the mining site but also close the loop on legacy issues and their First Nation’s community needs,” he said.

Five First Nations in Northern Ontario asked the Impact Assessment Agency of Canada (OAC) to extend the Ring of Fire consultation period due to COVID-19. The IAC gave them a one-week extension.

Dec. 17, 2020: CBC – Five First Nations in Northern Ontario – Neskantaga, Attawapiskat, Fort Albany, Kashechewan and Weenusk First Nations – sent a letter on Dec. 10, 2020 to the federal Impact Assessment Agency demanding more time for the consultation process announced on Nov. 12, 2020 with a deadline of Jan. 21, 2020. They wanted the date pushed back because of capacity issues related to the ongoing effects of the COVID-19 pandemic including an ongoing water crisis and forced evacuations. In the letter, the chiefs wrote, “we do not want the [regional assessment] to start off on a track that is short and leads to dead ends; that does not make full use of the opportunity presented here and ends up being mere window dressing.”

The government’s response was to extend the deadline by eight days until Jan. 29, 2020.

But that didn’t fit Chief Moonias’ definition of meaningful consultation. “You have consultation before you start your project. You have to get permission from the nation before you start the project, that’s how we understand good faith consultation anyways … there’ll be no development in our nation’s territory unless we say so,” he said.

York University professor and Ring of Fire expert Dayna Scott, who has worked on research projects with Neskantaga in recent years, said, “if communities without the capacity to participate right now are going to just be sidelined or excluded and the planning is all going to continue ahead, then it seems that the government just wants to continue with that usual sort of same old approach that non-Indigenous interests can drive the future of the far north.” The York professor added, “but it’s a problem. It shows the audacity of both levels of government here that they think it’s okay to just push these First Nations to the side and continue on with their planning for a region that’s exclusively occupied by Indigenous people.”

Federal government failure to issue adequate compensation to Lac Seul First Nation for flooding their ancestral lands to advance a hydro-electric project

Oct. 28, 2020: Assembly of Manitoba Chiefs (AMC) – Supreme Court of Canada grants intervener status to AMC, along with many others, in the Southwind case. Lac Seul Band launched the suit against the Federal Government for breaching their fiduciary duty when they flooded reserve land to advance a hydro-electric project. This project would see massive profits for the government, while leaving the First Nation of Lac Seul destitute and without reparations or adequate compensation for the devastation of their land and lost opportunity. Lac Seul, however, subsequently appealed the Federal Court of Appel decision stating that the compensation amount should have been calculated based on both significant cultural loss and on the use of the flooded land for hydro profits, meaning that the ordered amount did not accurately reflect the loss suffered.

“The Federal Government owes all First Nations a fiduciary duty which is a long standing obligation to act in the best interests of First Nations. Clearly, profiting on the backs of First Nations to their detriment is not honouring the fiduciary obligation and Lac Seul should be compensated to fullest extent considering any and all losses suffered by the Nation,” said AMC Grand Chief Arlen Dumas. Grand Chief Dumas concluded, “This appeal marks a significant opportunity for Supreme Court to provide clarity on how, in light of the unique Crown-First Nations relationship, equitable compensation can best be assessed when the Federal Government has breached its treaty obligations or fiduciary duty to a First Nation.”

April 23, 2020First Peoples Law -The Supreme Court of Canada granted Lac Seul First Nation’s application for leave to appeal the Federal Court of Appeal’s decision in Southwind v. Canada. The Supreme Court is expected to clarify how equitable compensation is calculated where a First Nation’s reserve lands have been taken or damaged by the Crown in the absence of a valid surrender or expropriation. The decision could directly affect First Nations across Canada dealing with claims relating to the unlawful taking of their reserve lands.

Concerns have also been raised that the Court’s approach is inconsistent with the provisions governing compensation for specific claims under the Specific Claims Tribunal Act, and that going forward, the Crown could rely on the lower court’s interpretation of the ‘appropriation’ provision in Treaty #3, which was arrived at in the absence of a proper evidentiary record setting out the parties’ respective understandings of the terms of the Treaty.

The Supreme Court’s decision is expected to address these issues and provide clarity. In particular, the Court will be asked to consider the application of fiduciary principles in respect of the taking of reserve lands without a surrender or expropriation and the determination of equitable compensation in this context.

Haudenosaunee Land Protectors protest housing development at 1492 Land Back Lane on un-ceded territory that is still part of an unsettled land claim

Sept. 17, 2020 – EyeOpener – Protesters have occupied so-called Mackenzie Meadows, bordering the town of Caledonia and the Six Nations reserve, since July 19 in opposition to the housing development of the neighbourhood by Foxgate Developments Inc. The site is under the sovereignty of the Haudenosaunee First Nation as one of their last unceded territories under the 200-year-old Haldimand Proclamation. Today, it has become an encampment for protestors, featuring art such as a shipping container spray painted with the site’s unofficial title: 1492 Land Back Lane. ‘

Sept. 12, 2020: Toronto Star – The Ontario Provincial Police (OPP) armed with a court injunction arrested 26 people including 2 journalists and an Indigenous academic researcher.

Oct, 22, 2020: Toronto Star – Ontario court issues a permanent injunction in favour of Foxgate and Haldimand County against the Haudenosaunee protesters. The Haudenosaunee Confederacy Chiefs Council, Six Nations traditional government, does not recognize the jurisdiction or authority of the Six Nations’ Elected Council, the colonial construct of The Indian Act The Six Nations Elected Council has been fighting for resolution to existing land claims on the Haldimand Tract since1980 managing to resolve one out of 29 submitted claims between 1980 -1995. Given the failure of the Claims process the band took the federal and provincial governments to court that has been languishing in the court system with a trial date scheduled for 2022. This is where Haldimand County believes the protesters should seek resolution. The reality is that there should be no development until the land claim is resolved. If the Haudenosaunee can wait over 200 years and especially over the last 40 years, they can wait a few years themselves.

March 30, 2021 – The Ontario Provincial Police (OPP) spent $16.3 million in just half a year policing the 1492 Land Back Lane protests. Funds covered salaries, round-the-clock overtime, food, hotels, travel costs, supplies, equipment, building rentals and other related expenses between July 2020 and January 2021.

Ontario’s Omnibus Bill 197 “COVID-19 Economic Recovery Act” rejected by Matawa Chiefs Council and Mushkegowuk Council for overriding Aboriginal 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. 

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.”

August 28, 2020 – The Matawa Chiefs Council, who represent 9 First Nations, issued this statement today rejecting the Ontario Crown’s tactics to unlawfully access the wealth of the north. The Ontario government has used the cover of COVID-19 to make legislative, regulatory and policy changes that attempt to diminish the obligations of Ontario to honour the constitutionally-protected Inherent Aboriginal and Treaty Rights of First Nations across Ontario.

Sept. 7. 2020: Law Times – Environmental groups and First Nations are challenging the Ontario Government’s changes to environmental legislation contained in Bill 197 The COVID-19 Economic Recovery Act. The amendments are a violation of s. 35 of the Charter, which recognizes and affirms existing Aboriginal and Treaty rights. 

Jan. 14, 2021: NationTalk – Following the declaration of a second state of emergency on Jan. 12, 2021 due to the COVID-19 crisis, the Matawa Chiefs Council are issuing a public statement that the Matawa Chiefs Council reject the Ontario government-imposed deadline of Thursday January 14, 2021 for comments related to Ontario’s proposed revisions of the Far North Act, 2010 and demand that the Premier of Ontario and the Minister of Natural Resources and Forestry Hon. John Yakabuski halt the inappropriate and continued attempts of the Ontario government to proceed with engagement activities on legislation impacting the Inherent Aboriginal and Treaty Rights of First Nations at this time. The land Ontario refers to as the Far North is predominantly land subject to the James Bay Treaty # 9 (1905-06 and 1929-30).   

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.

June 9, 2020: CBC – Nine faculty members at York University’s Osgoode Hall Law School are calling on the provincial government to press pause on mineral staking and permitting processes on Indigenous territory in light of the COVID-19 pandemic. In a letter addressed to Greg Rickford, the province’s minister of energy, northern development and mines state that continued exploration is putting an undue burden on remote northern communities, and making it too difficult for meaningful consultation to take place.

“We didn’t think it’s lawful the way they’re proceeding with mining as usual in the context of a global pandemic,” said Dayna Scott, an associate professor at the school and in the faculty of urban and environmental change at York, and the primary author of the letter. “And that’s in particular because many of the remote Indigenous communities that we work with in Ontario are expressing extreme difficulty in managing the sort of day-to-day work that needs to be done in governing their communities in the context of the pandemic.”

Government of Ontario appeals Robinson-Huron and Superior Treaties Superior Court decision around Annuities claims

Jan. 22, 2019: CBC – The Government of Ontario appealed 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 but the Government of Canada does not.

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/

April 28, 2021: Wawa News – the Ontario Court of Appeal concluded its hearing of the Government of Ontario’s appeal of the Stage 1 decision in the Robinson Treaties annuities case. The Court of Appeal has reserved its decision on the Stage 1 appeal, which it will likely release in the months following its hearing of the Stage 2 appeal.

Quebec

Montreal Economic Institute (MEI), endorses the results of an Ipsos poll they commissioned indicating 55% of Quebecers are opposed to UNDRIP and any special status for Indigenous people in the province

Dec. 9, 2020: Montreal Economic Institute – With the federal government tabling a bill last week aiming to make the United Nations Declaration on the Rights of Indigenous Peoples applicable to Canada, a clear majority of Quebecers are opposed to them having special or additional rights, compared to what all Quebecers enjoy. According to an Ipsos poll commissioned by the MEI, 55% of Quebecers think Indigenous people should have the same rights as them, no more and no less.

  • 65% of Quebecers intending to vote for the Coalition avenir Québec (CAQ) think that Indigenous people should not have any special rights. Only among Québec Solidaire (QS) voters does a plurality of people favour special rights for Indigenous people (44%).
  • 50% of CAQ voters think it is either the provincial or the federal government that should have the final word in cases of economic projects on land claimed by First Nations. Only 28% of them think that Indigenous people should have a veto right or blocking power in these matters. In contrast, 60% of QS voters think the final word should belong to Indigenous people.
  • 72% of CAQ voters think Indigenous governments should either have the powers and level of autonomy associated with municipal governments or no more than they have now. Conversely, only 5% of them think that Indigenous people should have powers comparable to those of the federal government.

“While people are not currently aware of the potential scope of the UN’s Declaration, an obvious result of this poll is that a clear majority of Quebecers is opposed to the effects of its application in Canada,” continues Mr. Kelly-Gagnon. “This Declaration will likely grant First Nations a de facto veto right over many important economic projects. There’s Hydro-Québec’s project to export electricity to Massachusetts, for instance, among many others. Yet it is only a minority of Quebecers who think that Indigenous people alone should make these decisions that affect all Quebecers,” concludes Michel Kelly-Gagnon, President and CEO of the MEI.

The Montreal Economic Institute who commissioned the poll are a right wing conservative thinktank. The poll results align with their own over-all economic agenda in  promoting and safeguarding the economic interest of Quebec’s business elite certainly not in righting the historical economic wrongs inflicted on Indigenous peoples by the very institutions – like Hydro Québec – that the Institute supports.

Oct. 6, 2020: Canadian Press – The Hydro-Québec project to export electricity to the United States referenced by MEI is currently being challenged by the Innu of Quebec who have filed a lawsuit against Hydro-Quebec seeking $4 billion in compensation for the ecological and cultural damage caused by the damming of the upper Churchill River in the early 1970s. “The massive hydroelectric project led to the creation of the Smallwood Reservoir, which flooded 6,500 square kilometres of traditional Innu territory, destroying fishing and hunting grounds, caribou habitat and ancestral graves, Grand Chief Etienne Rich, Innu Nation of Labrador said – “all without any compensation”.

Is it any wonder that MEI opposes UNDRIP!

The Anicinape Nation in Quebec is calling for a complete moratorium on moose hunting on its un-ceded ancestral territory

Oct. 8, 2020 – The Anicinape Nation is calling for a complete moratorium on moose hunting on its unceded ancestral territory. Faced with the Quebec government’s refusal to authorize this moratorium, roadblocks have been erected in the La Vérendrye wildlife reserve to prevent hunters from passing through. Yesterday, the Quebec Superior Court granted a provisional injunction to the Petawaga zec, part of the La Vérendrye wildlife reserve. The Anicinape Nation holds ancestral rights, including an unextinguished ancestral title, on the entire territory of the wildlife reserve.

Moose hunting is at the heart of the culture and identity of the Anicinape Nation and all First Nations in Quebec. The protection of moose is a collective duty to ensure the vitality and sustainability of culture and traditions. Government leniency in this file has direct impacts on the rights of the Anicinapek, which are enshrined in the Canadian Constitution and protected by Canadian and international law.

Nov. 17, 2020 – The Minister Responsible for Indigenous Affairs – Minister Ian Lafrenière met with the chiefs of the Algonquin communities and the Grand Chief of the Tribal Council of the Anishinabeg Algonquin Nation, Verna Polson. All parties agreed to immediately begin a negotiation process to find lasting solutions to avoid a repeat of the situation experienced in the fall, during the moose hunting season, in the La Vérendrye Wildlife Reserve.  it was agreed that the random draw for hunting, conducted by the Sépaq, would be postponed until March 2021 and that there would be no pressure applied during the negotiations

Innu Nation of Labrador files lawsuit against Hydro-Québec for damages resulting from Churchill Falls project

Oct. 6, 2020: Canadian Press – Labrador has filed a lawsuit against Hydro-Quebec seeking $4 billion in compensation for the ecological and cultural damage caused by the damming of the upper Churchill River in the early 1970s. They call the Churchill River’s large watershed Nitassinan. The river itself is called Mishtashipu. The Innu never ceded their land to European settlers and no treaties were signed, lawyer Nancy Kleer said.

Senior Innu leaders said Tuesday the provincially owned utility illegally took land from the Indigenous group without consultation in the late 1960s as construction started on the Churchill Falls hydroelectric project in central Labrador. “Hydro-Quebec has made billions of dollars from that contract, (but) it has not paid us a single penny for the damage to our land or damage to our lives, and to our people,” Grand Chief Etienne Rich told a news conference in St. John’s. “We are extremely disappointed in Hydro-Quebec’s refusal to take responsibility for what they have done to our people and our land. 

The massive hydroelectric project led to the creation of the Smallwood Reservoir, which flooded 6,500 square kilometres of traditional Innu territory, destroying fishing and hunting grounds, caribou habitat and ancestral graves, Rich said. The deal to build the Churchill Falls hydroelectric project was signed between Newfoundland and Quebec in 1969, and the project was completed in 1974.

“They have Aboriginal title to this land,” Kleer said, noting that a formal land claim process started in the 1990s.

As well, Kleer said officials from Hydro-Quebec have for decades refused to negotiate any kind of settlement with the Innu. She said the $4 billion claim is based on calculations suggesting Hydro-Quebec has earned $80 billion in profit from the project, with another $70 billion expected by the time the power contract with Newfoundland and Labrador expires in 2041.

WEMOTACI, QC, Dec. 3, 2020 – Five First Nations in Québec, the Innu of Pessamit, the Atikamekw of Wemotaci, and the Anishnabeg of Pikogan, Lac Simon and Kitcisakik, have joined the Innu Nation of Labrador to oppose Hydro-Quebec’s massive new power transmission corridor to the United States. In two separate briefs addressed to the Canada Energy Regulator (CER), the six Indigenous Nations expressed their opposition to the construction and operation, by Hydro-Québec, of a transmission line dedicated to the export of electricity to New England. The CER has the power to block the project if it does not comply with constitutional requirements. The First Nations and Innu “denounce the administrative strategies… to circumvent the framework provided by the Constitution Act of 1982, contravene its own Environment Quality Act, ignore the jurisprudence established by the Supreme Court, and flout Canada’s international commitments”.

The projects that Hydro-Québec has built on the lands of our First Nations have enabled Québec to industrialize and have provided the majority of its citizens with a better quality of life. However, the indicators of well-being for First Nations communities continue to be comparable to those of least developed countries – a reality that has created and sustained a system in which there are two classes of citizens. To add insult to injury, Hydro-Québec now expects to sell electricity produced on our lands to the United States, and to thereby improve the well-being of American citizens, without even thinking of compensating us for the damage it has caused to our ancestral lands since the beginning of the 20th century. This will not happen without our consent!

March 30, 2021 – The Penobscot Nation of Maine has joined the Innu of Labrador and 5 Québec First Nations and the Innu of Québec to call on President Biden and Prime Minister Trudeau to block Hydro-Québec’s plan to build a transmission line to Massachusetts. Their letter calls for a halt to initiatives that would see the state-owned utility make billions of dollars in profits without consulting or compensating the First Nations on whose ancestral territories its electricity is produced and through which it will be transportedhttps://www.prnewswire.com/news-releases/canada-and-us-first-nations-unite-against-hydro-quebec-301258762.html

Quebec’s Bill 66 ignores economic issues identified by First Nations groups

Sept. 23. 2020: Assembly of First Nations Quebec-Labrador (AFNQL) – AFNQL deplores the complete lack of consideration for the realities of First Nations as presented by the First Nations leaders. The new version of the defunct Bill 61 confirms Quebec’s lack of consideration, even indifference, for economic recovery that is First Nations specific.

“First Nations issues must be part of the public debate and they deserve to be heard as part of the study of the Bill, especially with regard to economic issues where First Nations are light years away from Quebec. And yet, a good part of the wealth comes from the ancestral territories of our nations,” said Ghislain Picard, Chief of the AFNQL, in reaction to the tabling of Bill 66. He also specified “that the message before the parliamentary committee in June and the letter of last August focused on First Nations economic recovery simply fell on deaf ears”.

Premier Francis Legault is opposed to UNDRIP implementation after committing to support it in a Sept. 14, 2018 letter to Ghislain Picard, Chief of the Assembly of First Nations Quebec-Labrador

Aug. 17, 2020: NationTalk – Premier François Legault indicated that, on the one hand, the Indigenous Nations must be recognized, but on the other hand, there is a risk of “giving” them a veto over Québec’s development. The Assembly of First Nations Quebec and Labrador proposes to begin discussions between the provincial government and First Nations right now on the recognition of Nations as well as on the scope of the Aboriginal and treaty rights of all First Nations.

“Premier Legault must first realize that this is not about “giving” rights, but about recognizing rights. The colonial regime has left its mark. The Premier of Quebec must also admit that any recognition of Nations without specifying the rights it implies would be meaningless. In a recent survey, the Quebec population shows an openness, a willingness to better understand First Nations issues. Is the Legault government ready to follow the path indicated by the population? is the Legault government ready to undertake a deep and sincere reflection on the relationship it wants to develop with First Nations? Will it instead continue to be inspired by principles dating back to the colonial era?

Government of Quebec infringing on First Nations Aboriginal treaty rights by failing to consult on re-opening mining in Nunavik without consideration of the impacts on Inuit 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.

New Brunswick

Premier Blaine Higgs cancelled all tax revenue sharing agreements with New Brunswick First Nations that had been in place for over 25 years

April 13, 2021: Wolastoqey Chiefs Premier Blaine Higgs cancelled all tax revenue sharing agreements with New Brunswick First Nations that had been in place for over 25 tears. These agreements were established to offset the ongoing significant gap “in the per capita funding federal and provincial governments provide for education and social services for First Nations reserves’ throughout Canada compared to funding levels off-reserve for similar services.

“With the recent court decision siding with the Wolastoqey on the matter of these tax agreements giving us faith that the justice system here isn’t totally broken, this decision by the Premier to find an alternative door out of these agreements shows that this government is, in fact totally broken,” said Chief Bernard. “This settler government has little interest in a meaningful relationship with the original peoples of this territory beyond how much more money it can leech from our resources, be it natural or financial.”

Background on Higgs’ history on tax-sharing agreements:

  • In 2014, without consulting Premier David Alward or his cabinet colleagues, he issued a notice to cancel tax sharing agreements with First Nations days before a provincial election call citing his view that helping minorities was unfair to the majority he represents.
  • In 2020, he engineered his carbon tax in such a way that several million was taken away from First Nations despite designing special measures so that the provincial government lost no revenue and that the natural gas distributor lost no revenue from the carbon tax.
  • In 2020, he overruled his own minister of Aboriginal affairs to block an inquiry into systemic racism and in response dumped that minister from cabinet and relegated the portfolio to a part-time job.
  • In 2021, despite an ongoing court proceeding he proactively telephoned several reporters to speak against the tax-sharing agreements and issued a statement trying to defend his position.
  • In 2021, the courts ruled his plan to use the carbon tax as an excuse to take money from First Nation initiatives to boost their economies, reduce poverty and fund social services was against the law. Government has refused to comment on this decision until now.

“The fact that the Premier made a point to suggest that First Nations don’t pay taxes but access the same programs as the rest of the province and perpetuate this racist stereotype is frightening,” Bernard said. “It is well documented that First Nations aren’t able to access health, education or other social support on a level equal to non- Indigenous Canadians.”

To add insult to injury, Chief Bernard said she and other Chiefs received an invitation from the finance minister with only two-hours’ notice to be briefed after the fact on today’s announcement

April 16, 2021: Wolastoqey Chiefs – Higgs and Dunn seem to be aggrieved that First Nations are competing and our economic development efforts are paying off,’’ said Madawaska First Nation Chief Patricia Bernard. “Only in Blaine Higgs’ New Brunswick are you penalized for being successful at selling gas.’’

Tobique Chief Ross Perley said the Higgs government is engaged in a “divide and conquer’’ tactic by singling out reserve that do higher volumes of business. “Higgs is attempting to shame us in the eyes of our fellow New Brunswickers, and then haul us before him to negotiate,’’ Chief Perley said. “He isn’t a king and he is a few centuries late if he thinks humiliation will work on us.’’

Six Wolastoqey Nations’s lawsuit in New Brunswick to recognize their Aboriginal title to lands from Peace and Friendship Treaties

Oct. 5. 2020: NationTalk – The six Wolastoqey Communities in New Brunswick – Matawaskiye (Madawaska), Neqotkuk (Tobique), Wotstak (Woodstock), Pilick (Kingsclear), Sitansisk (St. Mary’s) and Welamukotuk (Oromocto) – announced they will be filing a lawsuit seeking the Court’s recognition of the Wolastoqey Nation’s title to lands in New Brunswick. Between 1725 and 1778, the Wolastoqey Nation negotiated and entered into Treaties with the Crown, known as the Peace and Friendship Treaties. The Crown did not honour the Treaties, and took Wolastoqey lands without consent, and pushed the Wolastoqey people into six small communities along the river. They have carved up the land and given it to private landowners, and kept for themselves all benefits in the form of taxes, royalties, leases and fees.

They have acted as if they have sole jurisdiction over the land and this is simply legally not the case,” said Chief Tim Paul of Wotstak. “You cannot give away something that is not yours to give. Yet for nearly 300 years, ignoring agreements signed nation to nation in black and white, this is what the governments of that time and the succeeding governments of New Brunswick and Canada have done.” “Meanwhile, many of our people live in poverty,” continued Chief Gabriel Atwin of Pilick. “Canada and New Brunswick and the preceding governments had a fiduciary duty to protect our lands. They did not honour those duties. And our people have suffered because of that breach. Even to this day they refuse to recognize what they have done and we are filing this lawsuit to ask the courts to recognize what the Crown has done.”

Nova Scotia

Assembly of Nova Scotia Mi’kmaw Chiefs is demanding that the Nova Scotia government stop all exploratory and drilling permits in the Pleasantville

June 9, 2021: The Assembly of Nova Scotia Mi’kmaw Chiefs are demanding that all work by Atlantic Gold be stopped in Pleasantfield, Nova Scotia and that no further exploratory or drilling permits be approved by Nova Scotia Lands & Forestry or the Nova Scotia Department of Energy and Mines for this area. The Kwilmu’kw Maw-klusuaqn Negotiation Office has told the Province and Atlantic Gold that Lake Rossignol and the surrounding landscape has tremendous cultural significance to the Mi’kmaq, and that no work – exploratory or otherwise – should take place in this area.

“This area is far too sensitive – for numerous cultural and archaeological reasons – for any work to be done here,” said Chief Deborah Robinson, Governance Lead for the Assembly of Nova Scotia Mi’kmaw Chiefs. “We are opposed to any work being conducted in the Pleasantfield area.” The Mi’kmaq are concerned that any exploratory work in this area could open the door for future developments in the Pleasantfield area and, have stressed that this is unacceptable.

With support from Mi’kmaw organizations, the Assembly has been working to see the Mersey area is listed as an Indigenous Protected and Conserved Area. The Mi’kmaw communities in the area, the Assembly and Kwilmu’kw Maw-klusuaqn Negotiation Office have been clear that no work should occur in an area of such high cultural importance to the Mi’kmaw Nation.

“Our ancestors spent a lot of time along the shores of Lake Rossignol, and along the Mersey River which is well documented in our stories and in archaeological records,” said Keptin Jeff Purdy, Mi’kmaq Grand Council. “We continue to have many significant cultural connections to this area today and this is why we want to see this area protected.”

Ongoing refusal of federal government to define “Moderate Living” fishery for Mi’kmaw communities

Sept.18, 2020 “Toronto Star – “In its 1999 Marshall decision – borne of a court case against Mi’kmaw fisherman and icon Donald Marshall – the Supreme Court affirmed the right of First Nations to hunt, fish and gather in pursuit of a “moderate livelihood.”” 21 years later, the federal government has failed to define “moderate livelihood. The Sipekne’katik First Nation has therefor created its own self-regulated moderate living” fishery issuing seven licenses Oc. 21, 2020 – Sipekne’katik First Nation awarded an interim injunction “authorizing police to arrest anyone whose interference, blockades or threats keep the community from carrying out its fishery…

Chief Michael Sack has indicated that “The plan…includes conservation measures, regulations for the boats and their safety and compliance officers”. The main concern for the non-Indigenous fisherman is the sale of the lobsters outside of the regulated commercial fishing season; an issue that the band and community will address.

In the meantime, the governments of Canada and Nova Scotia insist that the laws of Canada must be obeyed. The Supreme Court of Canada’s September 17, 1999 decision in the DonaldMarshall case affirmed a treaty right to hunt, fish and gather in pursuit of a ‘moderate livelihood’, arising out of the Peace and Friendship Treaties of 1760 and 1761.The Decision affected 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec. (Government of Canada website, Sept, 2020.

Oct. 1, 2020Kwilmu’kw Maw-klusuaqn Negotiation OfficeMi’kmaw harvesters from the Potlotek Mi’kmaw community will exercise their inherent right to fish for a moderate livelihood under their communities own self-governed fisheries plan. The harvesters will take to the waters of St. Peter’s Bay on the annual celebration of Treaty Day, a date to recognize and honor the treaties signed between the Mi’kmaq and the Crown in the 1700’s. The Netukulimk Livelihood Fisheries Plan is a step towards self-governance. Potlotek has been working collaboratively with the Assembly of Nova Scotia Mi’kmaw Chiefs, Kwilmu’kw Maw-Klusuaqn Negotiation Office (KMKNO), their community harvesters and community members to develop a plan that follows the Mi’kmaw traditional beliefs of Netukulimk, respects conservation, follows safety protocols and allows for a sustainable and responsible fishery.

Netukulimk is the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community. Netukulimk is achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of our environment.

Oct. 20, 2020: Kwilmu’kw Maw-klusuaqn Negotiation Office – Assembly of Nova Scotia Mi’kmaw Chiefs (Assembly) met with Minister Bernadette Jordan, Department of Fisheries and Oceans; Minister Carolyn Bennett, CIR and Minister Marc Miller, ISC to further discuss how the Mi’kmaq will be exercising their right to fish for a moderate livelihood. The Assembly pushed for Canada to accept the Community Netukulimk Livelihood Fishery Management Plans, as these plans have been developed by communities, and have been provided to and accepted by the Assembly. The Mi’kmaq of Nova Scotia are well within their Rights to fish under these Plans and Department of Fisheries and Oceans (DFO) needs to recognize that authority.

Oct. 23, 2020: Kwilmu’kw Maw-klusuaqn Negotiation Office – Representatives of the DFO Conservation and Protection (C&P) officers, who seized traps from Potlotek and Eskasoni authorized harvesters, refused to attend the consultation discussions (between DFO and Assembly of Nova Scotia Mi’kmaw Chiefs) to explain their actions and DFO representatives in attendance said they would not exercise authority over C&P officers. While the Mi’kmaq of Nova Scotia have done their due diligence, bringing all documents, including Community Netukulimk Management Plans, to the table for transparent and fulsome discussions, what is being said by the Minister publicly about working in good faith with the Mi’kmaq, is not the direction that her Negotiations Team is taking. Since the Mi’kmaq of Nova Scotia see the discussions with Canada failing them at a critical moment, the Mi’kmaq are now prioritizing a new way forward.

Dec. 21, 2020 – The Unified Fisheries Conservation Alliance (UFCA), a newly formed alliance of commercial fishery stakeholders, is calling on the Government of Canada to establish clear, lasting, responsible, regulatory oversight for all fisheries – commercial, food, social, and ceremonial. Established in Nov. 2020, the UFCA represents thousands of multi-species commercial fishermen, fishery associations, and associated businesses from across Atlantic Canada and its membership is growing. The UFCA believes that Indigenous and non-Indigenous fishermen can work side by side like they do today in the commercial fishery and recognizes and acknowledges the importance of cooperation with Indigenous communities, and that Indigenous fishermen have a right to fish for commercial, food, social, and ceremonial. “We want to work with the Government of Canada and First Nations to inform and understand viewpoints and ultimately establish regulatory certainty. Our members reject all forms of racism, intolerance, and violence, and believe there is a path to move beyond the controversies and heated rhetoric of recent months, to a positive outcome for all,” said Sproul.

The UFCA includes members from:

  • Bay of Fundy Inshore Fishermen’s Association
  • Brazil Rock 33/34 Fishermen’s Association
  • Coldwater Lobster Association
  • Scotia Fundy Inshore fishermen’s Association
  • Cape Breton Fish Harvester’s Association
  • Eastern Shore Fishermen’s Protective Association
  • Fundy North Fishermen’s Association
  • Guysborough County Inshore Fishermen’s Association
  • Richmond County Inshore Fishermen’s Association

Feb. 3, 2021: Global News – The Sipekne’katik First Nation has filed a court action against the Attorney General of Nova Scotia to challenge a provincial regulation on purchasing fish products, saying it’s unconstitutional. This regulation orders that any fish products sold in Nova Scotia must be caught and registered under a commercial licence with the Department of Fisheries. The court action asks the court to declare that prohibitions against buying fish from Mi’kmaq, fishing outside of DFO’s commercial licence regime, and prohibiting Mi’kmaq to moderately fish outside of the commercial season, are unconstitutional and contrary to Treaty Rights.

Feb. 16, 2021: Potlotek First NationThe Assembly of Nova Scotia Mi’kmaw Chiefs have worked with the community of Potlotek in the launch of their Netukulimk Livelihood Fishery Plan and now, in their action against Regulation 19 of the Fish Buyers Licensing and Enforcement Regulations. 

Mar. 3, 2021: Department of Fisheries – Introduced a path forward for Moderate Livelihood Fishing Plans (MLFP)based on three key principles: implementation of First Nations Treaty rights, conservation and sustainability of fish stocks, and transparent and stable management of the fishery. The Sipekne’katik First Nation and the Assembly of Nova Scotia Mi’kmaw Chiefs reject the plan

https://nationtalk.ca/story/statement-minister-jordan-issues-statement-on-a-new-path-for-first-nations-to-fish-in-pursuit-of-a-moderate-livelihood

The Chronicle Herald – The plan dictates that “all MFLPs must be under the regulatory authority of the federal and provincial governments; any future moderate livelihood fishery has to take place within the existing commercial season; and fishery will be conducted under licences issued by her department

Mar. 30, 2021: APTN – Mi’kmaw lobster harvesters in Nova Scotia have launched legal action against Canada’s attorney general, RCMP, the Department of Fisheries and Oceans (DFO), and 29 non-Indigenous fishers including the Bay of Fundy Inshore Fishermen’s Association (BFIFA) for the events around the launch of thev Moderate Living Fishery in September 2020

June 4, 2021 – Potlotek’s authorized harvesters will be able to fish and sell, pursuant to their Right and according to their Netukulimk Livelihood Fishery Community Plan, with the cooperation of Department of Fisheries and Oceans Canada (DFO). Chief Wilbert Marshall, Potlotek First Nation. “We built a solid Plan, that laid out our tagging and reporting structures, and are developing Enforcement Protocols with DFO’s Conservation and Protection branch. We went through all the formal processes and consulted on every part of what our harvesters wanted to do.”

Yukon
Yukon First Nations have been waiting decades for Regional Land Use Plans to balance “conservation values, First Nations’ rights and industrial pursuits”. In the meantime approval is granted to industrial projects to proceed

Mar. 1, 2021: The Narwhal – Two Yukon First Nations are renewing calls for a regional land use plan to be completed before any new development on their traditional territories is considered, including a mineral exploration project right next door to Tombstone Territorial Park.

Tr’ondëk Hwëch’in First Nation and the First Nation of Na-Cho Nyäk Dun recently sent letters to the Yukon Environmental and Socio-economic Assessment Board stating that approving the quartz exploration project, called Antimony Creek, without a land use plan for the Dawson region would violate their rights.

Regional land use plans determine what can and cannot occur in a particular region, essentially balancing conservation values, First Nations’ rights and industrial pursuits. These plans are created by independent commissions and signed off on by the Yukon government and affected First Nations. Creating them is a requirement under the Umbrella Final Agreement, which was signed by 11 First Nations in 1990 and paved the way for their self-governance. However, most First Nations have been waiting decades for these plans.

Antimony Creek is on Tr’ondëk Hwëch’in and Na-Cho Nyäk Dun territory and about 2.5 kilometres away from Tombstone, the territory’s flagship park that boasts towering, jagged peaks and abundant wildlife. 

The project is in an area of great importance to Tr’ondëk Hwëch’in, whose citizens frequently harvest plants and wildlife for cultural and subsistence purposes. Traditional gravesites and heritage travelling routes are a short distance away from the project area. 

Ryanwood Exploration Inc. didn’t return a request for comment. In its permit application, the company said First Nations haven’t been engaged, “but discussions will be conducted.” even though they plan up to 300 holes will be drilled per year, with some burrowing 10,000 metres into the earth, to find what appears to be gold and silver deposits. The 10-year project involves the construction of an access road, a network of trails and a drill pad. The company is proposing up to 883 round-trip helicopter flights on an annual basis to transport workers and supplies. According to GeoYukon, a Yukon government mapping tool, the project area covers roughly 86 square kilometres… Sue Thomas, a spokesperson for Yukon’s Department of Energy, Mines and Resources, told The Narwhal in an email land use planning doesn’t negate tenure holders’ ability to develop their mineral claims.  

“Development and/or exploration projects, like any other industrial and non-industrial uses, are allowed to continue while the planning process is underway,” she said.

Northwest Territories

Yellowknives Dene First Nation seeks $1B Remediation project to clean up toxic waste left behind by Gian Mine that operated in their territory without permission or any compensation for environmental damages

Feb. 3, 3021: CBC – The Giant Mine operated from 1948 to 2006, displacing the Yellowknives Dene First Nation (YNDFN) from the western part of Yellowknife Bay, affecting their harvesting rights. The mine contaminated the water and led to long-term negative social impacts among the YKDFN. The YKDFN and the federal government agreed to set up a formal process to discuss an apology and compensation for the First Nation for a mine that operated on its land without its consent for several decades. The clean-up of the mine is expected to cost up to $1 billion, including initial care and maintenance and active remediation. Remediation work at the former gold mine is imminent and the YKDFN have demanded that it be the only eligible bidder on contracts that include water treatment, long-term environmental consulting and monitoring of the project.

Chiefs Edward Sangris, Dettah chief of the YNDFN and Ernest Betsina, Ndilo Chief of YNDFN met virtually with Crown-Indigenous Relations Minister Carolyn Bennett, Northern Affairs Minister Daniel Vandal, and Northwest Territories MP Michael McLeod on Jan. 29.

“They must now put their good words into action,” said Sangris. Betsina said the chiefs want to ensure people who were impacted the most by the toxic legacy of Giant Mine are the ones who will benefit from the remediation project.

May 11, 2021: CBC – The Yellowknives Dene First Nation says the federal government’s response to the Giant Mine petition “reflects some progress,” but when it comes to remediation contracts, the response “falls short.” They say the response fails to reflect over three months of discussions between the Yellowknives Dene and government representatives.

It also points out that the $45.8 million in contracts were not for remediation-related work but for the care and maintenance of the site. As well, the First Nation says it had to enter highly-competitive processes to win the contracts and that the contacts “were not set aside for our benefit.”

The First Nation says it also partnered with established companies to win the contacts and that “considerable” financial benefits will flow to its joint venture partners.

“We are left to wonder why the government invested in us to fulfil these work packages, but selected a procurement approach which effectively prevents us from being able to participate in a substantive and meaningful way,” the release says.

Dene petition and Government Response: