Peggy Smith, interim vice-provost, Aboriginal Initiatives, and associate professor, in Lakehead’s Faculty of Natural Resources Management



THIS YEAR we celebrate Canada’s 150th birthday. For Indigenous Peoples, it has been 150 tough years.

The federal government treated indigenous Peoples as wards of the state through the Indian Act, 1876. Federal and provincial governments largely ignored the Peace and Friendship and historic numbered treaties that were signed between the 1700s and 1930s. The historic treaties became the tool to remove Indigenous Peoples from their traditional territories to small parcels of federally-owned reserve lands. And, finally, provincial governments, with their constitutional authority for natural resources, developed the resources within indigenous traditional territories without sharing the benefits with Indigenous Peoples.

With the repatriation of the Canadian Constitution by Pierre Elliot Trudeau in 1982, relationships between Canada and Indigenous Peoples began to change. In section 35 of the Constitution Act, 1982 Aboriginal Peoples were defined as “Indian, Inuit and M?tis,” and a commitment was made to recognize and affirm their aboriginal and treaty rights. But what did that mean?

Beginning in 1990 with the Sparrow case, the Supreme Court of Canada began to answer the question: what does it mean for the Crown (provincial and federal governments) to recognize and affirm aboriginal and treaty rights? Through a series of cases continuing to present day, the court slowly set in place direction to the Crown. From Sparrow to Delgamuukw (1997) to Haida (2004) to Mikisew (2005) and through to the Tsilhqot’in and Grassy Narrows cases in 2014, it has become clear that a key element of the protection of aboriginal and treaty rights is the duty to consult.

While the dictionary defines consultation as simply “discussion,” the court developed principles for meaningful consultation that include: ensuring minimal and justified infringement of aboriginal and treaty rights; providing proper notice and sufficient information about proposed development, conducting reasonable discussion, adequately considering alternatives, providing indigenous people the means to participate in consultation, respecting different values and knowledge systems, and reconciling provincial policies and programs with aboriginal and treaty rights.

However, it is only in a few instances that the court requires the Crown to seek the consent of Aboriginal Peoples before resource development occurs. The court has said that if a First Nation can prove aboriginal title (a unique form of land ownership based on the original occupancy of the land we now call Canada by Indigenous Peoples that continues in the absence of any agreement or treaty with the Crown), and the impact on their aboriginal rights from resource development is extensive, then the Crown may have to seek consent. However, there is only one First Nation in Canada that has proven its aboriginal title in court - the Tsilhqot’in Nation in B.C. There are over 600 First Nations in Canada. Are they being meaningfully consulted? Do all of them have to prove aboriginal title in court before the Crown seeks their consent?

While the Supreme Court would say that aboriginal title exists only in those areas where there are no agreements with the Crown (e.g., B.C., Quebec, Labrador, Ottawa Valley), First Nations claim that when they entered into treaties with the Crown, whether historic or modern-day land claims, they were not giving up their rights to land, but agreeing to share lands and resources. How will we reconcile these conflicting positions and ensure sustainable resource development?

Many think that the United Declaration on the Rights of indigenous Peoples (UNDRIP), which Canada affirmed in principle in 2010 under Harper and fully committed to under Trudeau in 2016, brings a higher standard to resource development, calling for the “free, prior, and informed consent” of Indigenous Peoples “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources” (Article 32.2).

The Truth and Reconciliation Commission has called for Canada to fully adopt and implement UNDRIP. The TRC also called for a new royal proclamation of reconciliation that would embrace nation-to-nation relationships, repudiating doctrines that justified the removal of Indigenous Peoples from their lands and renewing or establishing treaty relationships based on “mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future” (Call for Action #44). Essential to reconciliation will be addressing Indigenous Peoples’ rights to and responsibilities for land and moving from mere consultation to consent.

Peggy Smith, interim vice-provost, Aboriginal Initiatives, and associate professor, in Lakehead’s Faculty of Natural Resources Management, is hosting a free In Conversation Talk on Saturday, May 20 at 2 p.m., in the Waverley Library Auditorium.

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