Treaty 1 First Nations are feeling vindicated after a celebratory press conference this month, wherein the federal government announced its intention to convey the Kapyong Barracks to them with the intent of transforming it, in due course, to an urban reserve. What a saga it was!
Bottom line: the rise of native empowerment just landed squarely in downtown Winnipeg, as the native legal winning streak broke through 250 legal wins on the road to resources. Three of those wins had to do with the Barracks; which parcel will now comprise TLE Settlement lands.
TLE stands for Treaty Land Entitlement: denoting the historical fact that the proper amount of reserve land was never conveyed to the native-side after Treaty 1 was signed at the Lower Fort in August 1871. The author was federal negotiator assigned to settle the missing land matter. That settlement occurred two decades ago; but it took forever to identify a designated parcel.
Canada kept running lawsuits against Treaty 1 First Nations (losing three out of four) throughout a decade of taking its chances in court. It’s clear from all the native wins that the courts were hoping to promote reconciliation, well before the governments were. That’s because politicians at the federal, provincial, and municipal levels were frozen in fear over the prospect of a large urban reserve in the heart of the city.
All that changed with the Trudeau Liberals and their emphasis on promoting reconciliation. While the Liberals can be criticized for sound-bites and platitudes, here they stepped-up and put words into action, after taking stock of a decade of failed litigation during the Harper era.
In mid-April, 2018, federal Minister of Defense, Harjit Sajjan, flanked by Minister of Natural Resources, James Carr, announced at a Treaty 1 signing ceremony that Kapyong Barracks would be conveyed to the native-side in order to become an urban reserve. That would take some time, as the site would first be demolished and then decontaminated by Canada. In fact, the terms of conveyance had not yet been hammered out, as this was an agreement in principle. Nevertheless, in a moving public ceremony, native leaders spoke of reconciliation with Canada.
“We’re breathing life into our treaties. We’re repatriating our land. We’re living in a new Canada.” (Chief Glenn Hudson, Peguis First Nation) “Ten years ago I never would have believed these developments, we’re living in a different country.” (Grand Chief of the Assembly of Manitoba Chiefs, Arlen Dumas)
Minister Carr responded: “We’re on Treaty 1 territory like never before, and we’ve been taught a life-changing lesson. You are our new neighbours and we welcome you to our neighbourhood.” Minister Sajjan added: “The Liberal government is totally invested in renewing the relationship that began in Winnipeg in 2016 with the announcement of the new framework for recognizing Indigenous rights.” He credited Minister Carr for being ‘a tireless advocate’ for this initiative. (author’s notes taken during CBC Winnipeg live coverage).
It’s my view that this conveyance announcement is the most important act of reconciliation to date in the country. It signals a refreshing move away from the official apology phase to actually putting events into motion. Credit should also go to the courts, which have played a vital role in promoting reconciliation throughout this torturous decade of litigation. In this instance, the courts actually set the table for politicians to deliver an outcome in the spirit and intent of their rulings. Even so, there are many more judicial outcomes awaiting this sort of political leadership on the road to resources. Let’s keep the momentum going on reconciliation.
There’s just been a major uplift in the native empowerment movement nationally, as a result of a series of federal announcements that prioritizes Indigenous land-rights. Indeed, this should have been a major news story, yet it went unreported, as mainstream media got swept-up in the furor over Gerald Stanley’s acquittal in the death of Colton Boushie. Instead, here’s what newspapers might have ran as headlines to catch the native upswing:
Natives accorded priority status in future environmental reviews of resource projects,
Natives accorded priority status in Canada’s Oceans Protection Management strategy,
Natives accorded priority status in having the U.N. Declaration apply to Canadian Laws.
Those are made-up headlines, but the following ones are actual and from the same period:
B.C. First Nation wins top-court battle,
PM, Justice Minister meet with Boushies,
Trudeau promises new legal framework for Indigenous people.
These events happened, so all the headlines are true in terms of their import. Looking at the sequence in terms of the rise of native empowerment in the resources sector, it’s abundantly clear that natives are ‘top of mind’ in every political initiative in the country.
Of course, the federal government had readied these announcements and rushed them out the door to show natives that they no longer have to oppose resource projects in order to get Ottawa’s attention. It’s no coincidence that all this happened the same week that Alberta and British Columbia squared-off in a high-stakes contest over the fate of the Kinder Morgan pipeline, which in turn put serious pressure on Ottawa to find a way forward. This is the PMO’s strategy: to encourage empowered natives to stand down in opposition to projects by making them major players in the decision-making nexus. It’s a worthwhile exercise and it deserves the opportunity to be allowed to work, even though its admittedly light in substance and details.
Some of the headlines should be seen as major native empowerment uplifts in their own right. That’s definitely the case with the regulatory reforms proposed by Minister McKenna. She’s presenting a serious paradigm shift, wherein the enhanced profile of native issues throughout the environmental review process has finally been recognized. Natives will soon be feeling vindicated after comprehending where they now fit in on future environmental reviews.
Who would have believed that the National Energy Board would lose its primary status as an energy project regulator? And who would have believed that Traditional Knowledge will now rank equally with hard science in weighing a project’s impacts? Ottawa has finally realized that natives are resource gatekeepers, and as a result it intends to incorporate them into the project review process in recognition of them as the key players that they are.
Likewise, Prime Minister Trudeau’s pledge to develop a legislative framework to recognize Indigenous land rights is another significant native empowerment uplift, in its own right.
Readers who have followed my tracking of the native legal winning-streak will be familiar with my preferred wording – land rights – being the catch all phrase whereby natives typically win in the resources sector since they have constitutionally-protected land rights that the rest of us don’t have. Now, Trudeau wants to codify these rulings into legislation, in order to take the guess-work out of advancing resource projects. This is another worthwhile exercise that clearly deserves the opportunity to be allowed to work. It’s the government’s response to gridlock.
When all these political initiatives are added-up: including the United Nations Declaration (Bill C-262) and another Supreme Court of Canada legal win (#254), they denote a major spike in the rise of native empowerment. In fact, this compressed sequence of events might be the most empowering experience that the native rights movement has had, since it won formal rights recognition in the Canadian Constitution in 1982. All these court rulings are still ‘out there’ tripping up project-after-project. So the government is right to find a way to make things work.
Because when it comes to resources, it’s apparent that nothing moves in Canada without native support. Now this recent sequence of events presents Canadians with the opportunity to fix it.
It’s too bad that mainstream media missed the mark on this; because it’s a pivotal moment for reconciliation on the economic front, where natives can make substantial gains as gatekeepers.
It should be clear by now, that the best area to focus on for realizing reconciliation and mutual economic uplift, is through collaboration on resource projects. So keep the momentum going.
A benchmark event has transpired with First Nations winning an important lawsuit at the Supreme Court of Canada respecting ‘saving’ a wilderness area the size of New Brunswick.
They won on account that the Yukon Territorial Government had tried to do and end-run on their land claim settlements, and overrode the First Nations point of view almost entirely.
Readers who have followed my tracking of the native legal winning streak will be familiar with my preferred wording (land-rights) being the legal concept whereby natives typically win in the resources sector; since they have constitutionally-protected land-rights that the rest of us don’t have. Thus, my message to government and to industry is always the same: realize that natives are resource gatekeepers and work them into the project as the key local players that they are.
In this instance, the Yukon Party (under former Premier Pasloski) proposed to reverse the independent environmental protection measures proposed for the Peel Watershed, wherein, 80% was slated to be kept pristine and 20% to be opened for resource development. The Yukon government wanted to reverse that equation in order to get its resource sector up and running. However, planning for the Peel Watershed had been ongoing for a decade, with the process governed by settled native land claim procedures via an independent land-use commission.
The native-side held fast to its belief that the Peel Watershed was special: “it’s our university, our hospital, indeed there’s lots of activity going on there already. Our traplines, our ancestors, our thousand years of history; that’s where we go to bond and to gain back our spiritual and cultural strength.” (Chief Roberta Joseph speaking Dec 01/17 CBC News) There was a merging of agendas as eco-activists climbed aboard, and a very sophisticated public relations machine rolled-out to stop the reversal process during the litigation lead-up to the final court ruling.
The problem being, the Yukon Party had by then lost a number of other resource sector rulings to the native side; meaning the law respecting the on-going application of modern day land claim settlements was already well-defined. The risk the Yukon Party ran by litigating the Peel Watershed Land Use Plan was that it might well be directed to follow its own defined process.
Perhaps that was why it turned to Bay Street lawyers to argue the case for the subsequent appeals. In court, they freely admitted in argument that the Yukon Government had ‘erred’, ‘didn’t follow the process’, ‘accepted there was a breach of the agreement’, ‘stepped off the judicial path’, ‘failed to express sufficient detail’ and ‘misread the agreement’. That in turn, invited the Supreme Court to weigh-in with a series of reprimands in the final decision:
 By proceeding in this manner, Yukon “usurped the planning process and the role of the Commission” (trial reasons, at para. 198). Its changes did not respect the Chapter 11 process. Respect for this process is especially important where, as here, the planning area includes First Nations’ traditional territories within non-settlement areas. As both the trial judge and Court of Appeal noted, Yukon’s conduct was not becoming of the honour of the Crown. I therefore agree with the courts below that Yukon’s approval of its plan must be quashed. (First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58)
One could be forgiven in thinking that these lands were Crown lands over which Yukon had sole jurisdiction. That would be mistaken, because modern-day land claim settlements imbue the native-side with land-rights to Crown lands (being their traditional lands). Here’s the court on how those Crown lands are to be managed:
 As well, the language … must be read in the broader context of the scheme and objectives of Chapter 11 of the Final Agreements, which establishes a comprehensive process for how the territorial and First Nations governments will collectively govern settlement and non-settlement lands, both of which include traditional territories.
That ‘collectively govern’ requirement is what the Yukon Government lost on, and when the final decision issued last month, the Supreme Court didn’t mince words:
 Yukon must bear the consequences of its failure to diligently advance its interests and exercise its right to propose access and development modifications to the Recommended Plan. It cannot use these proceedings to obtain another opportunity to exercise a right it chose not to exercise at the appropriate time.
Back to Chief Roberta Joseph: “This is the outcome we were hoping for. We wanted a collaborative planning process. It was not our choice, we never wanted to go to court. But we’re prepared to work to protect the Peel Watershed.”
As a strategist, I’m saying it’s hard to believe that cases like this get this far. Yukon will now have to go on bended-knee to try and convince the native-side to open up more of the Peel Watershed to exploration. That will be a very tough assignment. Because, a win like this advances the land-rights legitimacy of the rise of native empowerment right across Canada.
Now at 250 legal wins, it’s the biggest win cycle in Canadian legal history. They’re redrawing the map of Canada one ruling at a time; solidifying their status as Resource Rulers in the process.
First Nations lost an important lawsuit before the Supreme Court of Canada recently on account that their argument was found wanting: freedom of religion based upon traditional beliefs.
Readers who have followed my tracking of the native legal winning streak will be familiar with my preferred wording – ‘Land Rights’ – being the catch all phrase whereby natives typically win in the resources sector; since they have constitutionally-protected land rights that the rest of us don’t have. My message to government and to industry is always the same: realize that natives are resource gatekeepers and work them into the project as the key local players that they are.
In this instance, the Ktunaxa Nation was out to stop a year-round ski-resort proposed for the remote Jumbo Glacier, near Invermere B.C., in the beautiful Purcell Mountains. Planning for this project had been ongoing for two decades: and one of the few breaks it ever got, was when the (closer) Shuswap Nation entered in into a collaborative commercial agreement to support it.
That was the moment when the Ktuxana turned-away, citing (very late in the game) that the glacier was a site of sacred significance according to their traditional beliefs. An Elder had a dream (yet never shared it for a further five years) to the effect that Jumbo Glacier was the afterlife destination for grizzly bears, where their spirits would be free to frolic, which was important to the Ktunaxa given the totemic-status of the grizzly bear in their world-view.
Soon eco-activists climbed aboard, as did civil rights organizations, and a very sophisticated public relations machine rolled-out to stop the resort in the lead-up to the final court ruling. The problem being, by then, the Ktunaxa had publicly adopted a no compromise position in full-on opposition to the project. Here’s how the first (lower court) judge reacted to that position:
 Further, when the Ktuxana did say that no accommodation of the Proposed Resort is possible, it seems that their position was based on the epiphanial reflection of one elder which arose in 2004 but was only communicated to third parties in 2009. The specific belief was not widely held among the Ktuxana. (B.C. Supreme Court 2014)
Undaunted, the Ktunaxa stuck with the freedom of religion argument (as opposed to advancing a land-rights argument) likely because they didn’t use the area (nobody did, not even grizzlies). That’s how remote the glacier is; and why the proponent saw it as a year-round marketing plus.
Then, before the Supreme Court of Canada, lawyers for the native-side invoked the analogy (right-off-the-bat) that the proposed resort was the equivalent of dropping ‘Disney Land on the Temple Mount’. That remark prompted the judges to wonder aloud whether ‘this is about a veto’ and lamented the apparent ‘no middle ground’. (excerpts legal arguments Dec 01/16 author’s notes live webcast) Thus, when the final ruling issued a year later, the Supreme Court didn’t mince words over the brinkmanship that it saw in play throughout the protracted period:
 In point of fact, there was no evidence before the Minister of “specific spiritual practices”. It is true, of course, that the Minister did not offer the ultimate accommodation demanded by the Ktunaxa – complete rejection of the ski resort project. It does not follow, however, that the Crown failed to meet its obligation to consult and accommodate. The s. 35 right to consultation and accommodation is a right to a process, not a right to a particular outcome … While the goal of the process is reconciliation of the Aboriginal and state interest, in some cases this may not be possible. The process is one of “give and take”, and outcomes are not guaranteed. [Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54]
It’s one thing to argue that a site is sacred because one’s traditional beliefs and practices are physically carried out there and can be demonstrated and weighed in evidence; but it’s quite another to say that it’s sacred because of spirit bears, frolicking there. based on dream-theory. The former denotes objective criteria, while the latter is totally subjective. That’s why the ‘land rights’ approach has been successful for native litigators; they put facts and figures in evidence.
But this case offered a polarizing argument that had no evidentiary basis whatsoever. To the point that even the Globe & Mail editors weighed-in with: “The Supreme Court gets religion”:
Government can’t get into deciding where a non-material bear lives. And that means going ahead with a development on traditional Indigenous territory comes down to adequate consultation with the affected Indigenous group, under Section 35 of the Constitution – as it should. (excerpt Globe & Mail editorial Nov 6/17)
As a strategist, one wonders how this case ever got so far? A loss like this one undermines the ‘land rights’ legitimacy of the rise of native empowerment and the overall heft of their legal winning streak. It’s still the biggest win cycle in Canadian legal history: based upon ‘land rights’.
So, what would have possessed the AFN chiefs committee on legislative reform to break-off discussions with the Trudeau Liberals? This rash action comes as the native legal winning streak in the resources sector closes-in on the 250-mark. Maybe they don’t think that they’ve won enough rulings to sit down and have a discussion about getting this country back to work. Success on resource projects is the one sure area that would ‘raise all our boats’ economically.
But that initiative requires real work and, of course, compromise on the road to reconciliation.
And what a time to break-off dialogue. The Prime Minister is besieged with tax controversy and NAFTA priorities. Right wing politicians are circling in Alberta and Ontario hoping to take power.
Any change in the geo-political landscape would likely see this key window of opportunity close. Better to maximize the opportunity at hand and work with the Trudeau Liberals. So why doesn’t the AFN want to participate by making this a priority during the run-up to the next election? Because all bets will be off after that. The AFN’s back-tracking is a seriously flawed strategy.
This news coincided with the Energy East decision to quit the regulatory approval process. If you were to review the massive reporting on that decision, you would not find one paragraph, nor even one sentence, that said that natives had anything to do with the pipeline’s demise. That’s because mainstream-media is running with the agenda of not reporting on the rise of native empowerment. Don’t credit them for killing Energy East; better to blame it on Ottawa!
The four-year saga of native pushback across Manitoba, Ontario, Quebec and New Brunswick, is now being essentially bleached right out of the Energy East narrative by journalists who are overly deferential to corporate Canada. Of course, there’s also no mention of the proponent’s strategic shortcomings in the management of the project (but that’s another story entirely).
So, we now have two concurrent native empowerment news blackouts: mainstream media being in purposeful denial on Energy East; and the AFN walking out on the Liberal’s legislative reform initiative. Amazingly, these so-called ‘strategies’ are playing-out just at the moment that the rise of native empowerment is peaking in the country. One might reasonably expect that the native-side would be going ‘all in’ to score on the open net; instead they’ve turned out to be a bunch of thumb-suckers, showing just how strategically out-of-touch the AFN can be when it comes to the heavy-lifting.
Could it be that the AFN leadership is scared of being accused by the rank-and-file of ‘getting too close’ to official Ottawa? That was the rap that they laid on former National Chief Atleo over his Education Accord with the Harper government. If so, this would mean that the AFN has just self-selected itself out of the national reconciliation process on legislative reform. Unbelievable! Given that the Truth and Reconciliation Commission calls upon both sides to make a proper effort in tuning-up legislative deficiencies that are holding back reconciliation (and resource development). Instead, what are Canadians hearing? It’s the sound of silence; leaving Canadians to wonder just what useful service does this lobby organization provide?
What to make of the so-called ‘split’ of Indian Affairs? Former Prime Minister Harper had changed its name, that is until current Prime Minister Trudeau changed it again: (‘Aboriginal’ under Harper) (‘Indigenous’ under Trudeau). But for some reason, changing the name of the Indian Act is verboten. Passing strange, since the Indian Act is the legal and the administrative basis for the department. Now, it’s about to be split into two ‘new’ separate ministries: one called ‘Indigenous Services’; the other called ‘Crown-Indigenous Relations and Northern Affairs’. That’s a mouthful for the average Canadian. I propose, instead, that Indian Affairs simply be called the ‘Human Resources’ department for natives – which is really what it is.
We all know the hallmarks of human resources departments: parenthood and control, which is why this particular bureaucracy had been around since the beginning of Canada. It has long ago reconciled itself to administration by rote, process over substance. It harbours a lethal legacy of unprofessional complacency. Unsurprisingly, it’s not held in high regard by any sector of industry, government or impacted society that has to deal with it. That’s why I stick with the acronyms INAC1 & INAC2. It’s just more of the same. Twinning this feeble administrative mindset is hardly a progressive move. It smacks of political gamesmanship – more process.
The first announcement from the new ministers is that everyone’s job is safe, at least during the initial period of assessment and consulting. If ever there was a ministry in need of ‘the big broom treatment’ this is the one. So, the job security announcement is obviously intended to squelch brown envelopes flying-out to media, given that there’s no apparent plan guiding next steps. If this is the case, there would indeed be much incentive for bureaucrats to settle scores.
The reason I say this, is because both the government-side and the native-side, had in the preceding two months, announced to great fanfare, their respective marching orders on how they were going to interact. In June, the AFN (& Canada) released its ‘Memorandum of Understanding on Joint Priorities’. Then in July, Canada released its: ‘Ten Principles on Government’s Relationship with Indigenous Peoples’. But neither of these charter documents even hinted at the break-up of the department; not one word about this in the AFN’s 8 points or Canada’s 10 points. That’s 18 points in total of go-forward dialogue mechanisms, but with no mention of the main event. The only conclusion that one can logically come to is that the pending ‘spit’ was not on anyone’s radar. Because it landed out of the blue, the very next month, in August. And it took all involved in those previous ‘charter’ exercises completely by surprise. It’s no wonder that the next six-months is going to involve cross-country consultations to figure out the ministerial repackaging (more likely a year). In the ultimate irony, the native-side never raised a fuss about the lack of prior consultation over this procedural bombshell. (One can only imagine the AFN’s reaction had the Harper government tried to pull this off!)
But in fact, the National Chief said that he was ‘cautiously optimistic’; no doubt embracing the possibility of doubling-up the AFN’s fiscal funding over time to meet the expanded challenges.
Because, that’s where this is all heading: doubling of staff functions, doubling of overheads, doubling of processes – leaving less funding for key program delivery. It all sounds too familiar.
Many articles ago, I called upon the Trudeau government to create a new super-Ministry called ‘Access to Resources’, and to staff it with anybody but INAC and Justice officials. Today that pressing problem is even worse, as the country continues to face massive gridlock in accessing and exporting resources. Thus, I repeat, this is where the political effort should be put, not in repackaging a department that should outright be abolished along with its ‘colonial era’ legislation. Natives have now won 245 legal wins on the road to resources. That is what needs to be addressed. I proposed the solution. But the response has been more ‘Human Resources’!