Blog

In the Media: Coldwater et al. v Canada (Attorney General) et al., 2020 FCA 34

Image retrieved from: CBC News <https://www.cbc.ca/news/canada/calgary/tmx-construction-1.5381915>

Tansi Nîtôtemtik,

Background and Timeline

As discussed earlier in the week, the Federal Court of Appeal (“FCA”) denied the TMX project in 2018 with the Tsleil-Waututh Nation v Canada (Attorney General) decision (TWN 2018).[1] One of the grounds for quashing the project was the failure of the federal government to discharge their duty to consult with Indigenous communities.[2] While the consultation framework in TWN 2018 was deemed sufficient, its depth and meaningfulness at Phase III of the accommodation framework failed to meet the threshold.[3]  As a result, the matter was “remitted back to the Governor in Council in order for [the] flaws to be addressed and for re-decision.”[4] The Court in TWN 2018 did not require that “the consultation process begin anew.”[5] Rather, it required that the shortcomings of the accommodation process be identified and addressed.[6]

Once remitted, the Governor in Council approved the TMX project in 2019 after the deficiencies identified in TWN 2018 were addressed, saying “[The] efforts were sufficient to meet the duty to consult and, considering the benefits and detriments of the Project, the Project [i]s in the public interest and should be approved.”[7] In response, six parties who had been “granted leave under section 55 of the NEB Act to apply for judicial review” [8] brought applications before the Federal Court of Appeal. Two applicants discontinued their applications, leaving the remaining four:  Coldwater Indian Band; Squamish First Nation; Tsleil-Waututh First Nation; and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose (Collectively, “Ts’elxwéyeqw”).[9]

The Federal Court of Appeal

At issue in the Coldwater First Nation case was whether the “flaws identified in TWN 2018 were adequately remedied by the new consultation process.”[10] The FCA reiterated that the focus was to be on the reasonableness of the Governor in Council’s decision and not their own opinion as to whether the consultation process should have been longer or more in depth.[11] As such: “The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation; the evidence before the Court and the circumstances that bear upon a reasonableness review.”[12]

In cases where deep consultation is required, the SCC in Haida Nation stated:

While precise requirements will vary with the circumstances, the consultation required…may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact the had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.[13]

The actual content of the duty to consult depends on the circumstances of each case.[14]

Indigenous Perspective

The applicants alleged the renewed consultation in which they had each been involved had not adequately addressed the shortcomings identified in TWN 2018 and the Crown had failed to fulfill its duty to consult.[15] They argued that Canada had not approached the consultations with an open mind and the outcome had been pre-determined by nature of the fact that currently “Canada own[s] Trans Mountain.”[16]

The Reasonableness of the Governor in Council’s Decision

The FCA concluded the Governor in Council’s decision was reasonable; they agreed the flaws identified in TWN 2018 had been addressed and “that reasonable and meaningful consultation had taken place.”[17] Furthermore, the FCA found the Governor in Council considered Canada’s accommodation anew and not within the constraints of its prior decision.[18]

Following the decision in TWN 2018, Canada took several steps in carrying out the re-initiated consultation process. First, they retained Justice Iacobucci, a former Supreme Court Justice and “recognized expert with extensive experience in Indigenous matters.”[19] His role in the process was to oversee the consultation process and provide guidance.[20] Furthermore, Canada provided a detailed Crown Consultation and Accommodation Report (CCAR) to the Governor in Council which was “publicly disclosed, including to Indigenous groups.”[21] The CCAR provided a “detailed summary of new accommodation measures and initiatives that would avoid or mitigate the effects of Indigenous interests…”[22] Furthermore, it highlighted:

The impacts the Project had on Indigenous interests and concerns, conclusions made by the NEB, the perspectives and views of the Indigenous peoples, Canada’s analysis of the impact on Indigenous rights and interests and future steps that will mitigate the impact and address the concerns.[23]

The FCA concluded that there “was no basis for interfering with the Governor in Council’s second authorization of the Project.”[24] Furthermore, the applications put forward for judicial review by the Indigenous communities were dismissed.[25]

The Indigenous Applicants’ Submissions Reviewed by the Federal Court of Appeal

Upon review, the FCA in this case determined that:

Each of the applicants’ submissions failed for one or more of five reasons:

• They raise matters that could have been raised before this Court in TWN 2018 but were not and, accordingly, the applicants are estopped from raising them now;
• They raise matters that were raised before this Court in TWN 2018 and that were dealt with by the Court;
• They raise matters outside of the scope of the issues the Leave Order permitted to be raised;
• They have no merit on their own terms; and
• They, alone or in combination with other matters, do not take away from the overall reasonableness of the Governor in Council’s decision that the duty to consult had been adequately met and that, overall, the Project is in the public interest.[26]

Coldwater Indian Band

In TWN 2018, the Coldwater Indian Band was concerned about the impact the TMX route would have on the aquifer that provides their drinking water.[27] They argued that they would need at least two years from the time at which the monitoring wells were installed to accurately determine a baseline.[28] The Coldwater Indian Band submitted that Canada’s duty to consult would not be discharged if the Project was approved before the hydrogeological study was completed.[29]

The FCA found that consultation is an ongoing issue and would be triggered when decisions regarding the Project’s route are determined and when the hydrogeological study results are ready.[30] The FCA found that the Court in TWN 2018 addressed the concerns regarding the hydrogeological study and as a result, the Coldwater Indian Band “is barred from litigating the issue again.”[31] The FCA found that the Governor in Council’s determination that the Coldwater Indian Band was adequately consulted and accommodated was reasonable.[32]

Squamish First Nation

The Squamish First Nation was primarily concerned with the risk of spills and the consequences of a spill on their rights and interests.[33] The Squamish First Nation argued that the renewed consultation process did not address or resolve the identified shortcomings in TWN 2018 and thus it was unreasonable for the Governor in Council to approve the TMX project. [34] The FCA determined Canada meaningfully engaged in consultation and accommodation during the renewed consultation.[35]

During the re-initiated consultation, Canada exchanged scientific information regarding bitumen spills and proposed eight accommodation measures to respond to concerns expressed by the Squamish First Nation.[36] Furthermore, Canada agreed to “collaborate with Squamish [First Nation] and Tsleil-Waututh [First Nation], and their expert, on the joint diluted bitumen study.”[37] The FCA concluded that the Squamish First Nation “had and exercised th[e] opportunity…to discuss the assessment of impacts of the Project on Squamish [First Nation].”[38]

Tsleil-Waututh First Nation

In TWN 2018, the Court determined that “Canada’s initial consultation with Tsleil-Waututh [First Nation] was inadequate” as Canada’s response to concerns were “generic and vague and…devoid of “concrete measures.””[39] The FCA considered four concerns raised by the Tsleil-Waututh First Nation, who urged that Canada “did not approach the re-initiated consultation with an open mind” arguing:[40]

1. Canada made “consultative errors” in relation to Tsleil-Waututh’s concerns about Project-related marine shipping impacts;
2. Canada took an incorrect and unreasonable approach to accommodation;
3. Canada withheld necessary information until the end of the consultation process; and
4. Canada’s mandate was unreasonably constrained.[41]

The FCA determined that “Canada engaged in meaningful dialogue with Tsleil-Waututh [First Nation] respecting its concerns about Project-related marine shipping impacts.”[42] Furthermore, the re-initiated consultation process was “consistent with the honour of the Crown and led to the development of responsive accommodation measures.”[43] In addition, the FCA stated that Canada’s approach to accommodation was reasonable.[44] In reaching this decision, the FCA mentioned the eight accommodation measures presented by Canada to the Tsleil-Waututh First Nation, addressing the specific flaws stated in TWN 2018 and acknowledging other concerns.[45]

In terms of concern number three, the FCA determined that there was no evidence of misconduct or withholding of information by Canada.[46] As for concern number four, Canada’s mandate for the re-initiated consultation was “to work with Indigenous groups to understand impacts and seek to identify potential accommodations for the Project, where appropriate.”[47] The FCA determined that the multiple discussions and exchanges of information were consistent with the mandate that was “appropriately defined” in TWN 2018.[48] Ultimately, Canada’s efforts amounted to adequate consultation and “responsive accommodation measures.”[49]

Ts’elxwéyeqw

Ts’elxwéyeqw represents the seven Ts’elxwéyeqw (Stó:lō) villages of Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, and Yakweakwioose.[50] In TWN 2018, Canada’s consultation with the Ts’elxwéyeqw was insufficient and six shortcomings were identified.[51] In the current FCA decision, Ts’elxwéyeqw put forward four additional contentions:

1. Canada failed to adequately engage with the ICA and the 89 recommendations;
2. Canada’s accommodation measures are generic, conceptual, not specific, and rely heavily on future commitments;
3. Canada failed to re-initiate consultations in a timely manner and then truncated their execution; and
4. Canada failed to consider the infringement of its established fishing right.[52]

The FCA answered each of the above contentions and held that Canada had taken appropriate steps to remedy the shortcomings identified in TWN 2018.[53] They concluded that Ts’elxwéyeqw “did not show that Canada failed to meet its duty to consult and accommodate during the re-initiated consultations.”[54]

Conclusion

The TMX project has had a tension-filled history and timeline and this decision is no different. Media coverage in the coming weeks and months will reveal the consequences stemming from the recent judicial development in Coldwater First Nation.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Tsleil-Waututh Nation v Canada (Attorney Genera), 2018 FCA 153 [TWN 2018]

[2] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 2 [Coldwater First Nation].

[3] TWN 2018, supra note 1.

[4] Coldwater First Nation, supra note 2 at para 3.

[5] Ibid at para 14.

[6] Ibid.

[7] Ibid at para 15.

[8] Ibid at para 4.

[9] Ibid.

[10] Ibid at para 16.

[11] Ibid at para 29.

[12] Ibid.

[13] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 44.

[14] Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 24.

[15] Coldwater First Nation, supra note 2 at paras 7, 20.

[16] Ibid at para 21.

[17] Ibid at para 64.

[18] Ibid at para 67.

[19] Ibid at para 70.

[20] Ibid.

[21] Ibid at paras 71-72.

[22] Ibid.

[23] Ibid at para 72.

[24] Ibid at para 10.

[25] Ibid.

[26] Ibid at para 87

[27] Ibid at para 89.

[28] Ibid at para 92.

[29] Ibid.

[30] Ibid at paras 94-97.

[31] Ibid at para 105.

[32] Ibid at para 112.

[33] Ibid at para 113.

[34] Ibid at paras 115, 117.

[35] Ibid at para 118.

[36] Ibid at paras 118-127.

[37] Ibid at para 129.

[38] Ibid at para 149.

[39] Ibid at para 152

[40] Ibid at para 154.

[41] Ibid at para 157.

[42] Ibid at para 161.

[43] Ibid.

[44] Ibid at para 173.

[45] Ibid at paras 175-176.

[46] Ibid at para 191.

[47] Ibid at para 193.

[48] Ibid.

[49] Ibid at para 196.

[50] Ibid at para 5.

[51] Ibid at para 197.

[52] Ibid at para 205.

[53] Ibid at para 254.

[54] Ibid.

Indigenous Community Concerns with TMX Development

Image retrieved from: The Tyee

Tansi Nîtôtemtik,

This week we have been highlighting Indigenous groups who support the Trans Mountain Pipeline Expansion Project (TMX). However, there are also a number of Indigenous groups who do not support the TMX. Today, we will consider their concerns and the general protests surrounding the project.

In 2013, Kinder Morgan made an application to the National Energy Board (NEB) to expand the Trans Mountain Pipeline.[1] In November 2014, a protest blocked crews from drilling and surveying in a conservation area on Burnaby Mountain.[2] More than 100 people were arrested, and most of the charges were later dropped.[3]

In 2018, after the federal government had approved the pipeline, the Federal Court of Appeal overturned the approval due to a lack of consultation, specifically with affected First Nations.[4] Some of the concerns that have been expressed in connection to the TMX include concerns that it will inhibit Canada’s ability to meet its environmental obligations under the Paris Agreement, and concerns over the impact a potential spill would have on drinking water, salmon and coastal wildlife, and communities along the pipeline’s route.[5]

One nation opposed to the pipeline expansion is the Squamish First Nation. The Squamish First Nation “is a Coastal Salish Nation whose territory includes Burrard Inlet, English Bay, Howe Sound, the Squamish Valley and north to Whistler.”[6] The TMX would pass through Squamish territory. The Squamish First Nation relies on the marine and aquatic environment and they are concerned about the impact the TMX will have on it.[7] Of particular concern is the survival of the Southern Resident Killer Whale, “a species of cultural and spiritual significance to the Nation.”[8] The Squamish First Nation asserts that the duty to consult in this case is more onerous because TMX is so close to the marine environment they rely on.[9]

A second community opposed to the project is the Coldwater Indian Band, which is a member of the Nlaka’pamux First Nation. While the majority of the TMX expansion is set to follow the path of the original pipeline, the TMX would diverge from the original route in the Coldwater River valley, the home of the Coldwater Indian Band.[10] The proposed route runs along a part of the Coldwater reserve which acts as the “recharge zone of an aquifer that is the sole source of drinking water for 90% of Coldwater residents.”[11] Further, the Kwinshatin and Skugam creeks, which feed the aquifer and the Coldwater river, have spiritual significance to the Coldwater people.[12] They are used for spiritual bathing and for sweat lodges.[13]

A third nation opposed to the TMX pipeline is Tsleil-Waututh First Nation. Tsleil-Waututh First Nation has a deep cultural and spiritual connection to the Burrard Inlet, an area to be impacted by the TMX.[14] The TMX would increase the amount of marine traffic in the area where the Tsleil-Waututh First Nation traditionally harvests.[15] Further, the Tsleil-Waututh First Nation have a cultural relationship with the Southern Resident Killer Whales, a species that may be impacted by the TMX development.[16] The Tsleil-Waututh First Nation has noted that they do not believe the federal government has met their duty to consult.[17]

In arguments before the Federal Court of Appeal in Coldwater et al. v Canada (Attorney General) et al., counsel for the Tsleil-Waututh First Nation argued that Canada “barged ahead” with the TMX project even though issues brought forward by First Nations have not yet been addressed.[18] Counsel for the Coldwater Indian Band argued that the decision to approve the TMX “cannot be honourable and cannot be in the public interest.”[19] Recently, the Federal Court of Appeal dismissed the appeal.[20] First Nations groups involved in the case have since expressed their disappointment with the decision. Squamish Nation elected councillor Khelsilem Tl'aḵwasik̓a̱n stated: “We’ll continue to fight to enforce our jurisdiction within our territories.”[21] Rueben George, a spokesperson for the Sacred Trust Initiative of the Tsleil-Waututh Nation, stated: “Reconciliation stopped today… this government is incapable of making sound decisions for our future generations.”[22] Parties in the case are now left with the option of appealing to the Supreme Court of Canada.[23] We will be providing an in depth discussion on the case tomorrow. 

It is important to understand the concerns raised by Indigenous communities opposed to the pipeline. In this time of reconciliation, following the release of the Truth and Reconciliation’s Final Report, it is essential that Indigenous concerns over projects impacting their land, culture, and spirituality are heard and effectively addressed. Improper consultation works directly against reconciliation and perpetuates the detrimental impact of colonialism. 

Until Next Time,

Team ReconciliAction YEG

--- 

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] CBC News, “Timeline: Key dates in the history of the Trans Mountain pipeline”, (3 October 2018) CBC News, online: <https://www.cbc.ca/news/canada/calgary/timeline-key-dates-history-trans-mountain-pipeline-1.4849370> [CBC News].

[2] Ibid.

[3] Ibid.

[4] The Council of Canadians Acting for Social Justice, “Trans Mountain Pipeline”, The Council of Canadians Acting for Social Justice, online: <https://canadians.org/trans-mountain> [The Council of Canadians Acting for Social Justice].

[5] Ibid; Pull Together, “Meet the Nations Fighting TMX”, Pull Together, online: <https://pull-together.ca/about-copy/> [Pull Together].

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ian Gill, “At the TMX Pipeline Hearing, the Sham of ‘Consultation’ Laid Bare” (19 December 2019) The Tyee, online: <https://thetyee.ca/Analysis/2019/12/19/TMX-Pipeline-Hearing/>.

[19] Ibid.

[20] Federal Court of Appeal, 2020 FCA 34 Summary, online (PDF): <https://www.fca-caf.gc.ca/fca-caf/pdf/Coldwater-v-Canada-2020-FCA-34-summary-FINAL.pdf>. 

[21] Andrew MacLeod, “First Nations Vow to Fight on after Trans Mountain Defeat” (4 Feb 2020), online: <https://thetyee.ca/News/2020/02/04/First-Nations-Vow-Fight-Trans-Mountain-Federal-Court-Defeat/>.

[22] Ibid.

[23] Supra note 20.

Indigenous Ownership in the TMX and the Potential for Poverty Alleviation in Indigenous Communities

Tansi Nîtôtemtik,

"We still have issues in the communities about poverty and water and housing," said President of the Indian Resource Counsel Stephen Buffalo about the benefits of Indigenous ownership of the Trans Mountain project.

Image retrieved from: <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

This week, ReconciliAction YEG has been covering topics in the Trans Mountain Pipeline Project. Today’s topic discusses the question of how Indigenous ownership of a stake in the Trans Mountain Pipeline, which transports oil and other products from Edmonton to the Vancouver area, could contribute to the alleviation of poverty in Indigenous communities.

Three main interest groups are looking to own a stake in the pipeline project: “Project Reconciliation based in Calgary, the Iron Coalition led by chiefs in the Edmonton area, and the Western Indigenous Pipeline Group based out of [British Columbia].”[1] The groups are hoping to take advantage of the opportunity for First Nations across the country to collectively purchase a 51 per cent stake in the Trans Mountain Pipeline.[2] At a Calgary summit held by the National Coalition of Chiefs in November of 2019, the main topic was poverty on reserves and how to tackle the problem.[3] One possible answer is to empower Indigenous communities to increase their financial stake in Canadian energy products.[4]

Delbert Wapass, the founder of Project Reconciliation, says Indigenous ownership in the pipeline would help empower communities to be self-sufficient for generations into the future and that in the past, Indigenous groups have been “economically starved out of any large opportunities.”[5] Wapass comments, “We are always a recipient of – rather than controlling our own destiny. We don’t want to be dependant (sic) on government.”[6] Other Indigenous leaders have said an ownership stake could additionally ensure the environment is protected through Indigenous monitoring of the pipeline.[7] Ownership in the pipeline could contribute to the alleviation of poverty by providing an economic return in the form of wealth generation that can “pave the way for true reconciliation through self-determined generational wealth, poverty elimination and future projects” such as sustainable infrastructure projects.[8] Additionally, ownership stake in the pipeline would allow key decisions to be made by Indigenous communities, such as implementing the program of the First Nations Fisheries Council which would connect First Nations communities to employment opportunities across the marine sector.[9]

Before Indigenous ownership in the pipeline becomes a reality, two main hurdles must be overcome. First, the federal government must take steps to engage Indigenous groups in negotiating ownership. While Prime Minister Justin Trudeau has stated in the past that the government would be open to Indigenous ownership of the pipeline and has discussed assembling a “committee of experts to advise about the possibility of selling a financial stake of the project to First Nations,”[10] it is only recently that they have taken steps in the right direction. On February 10, 2020, Finance Minister Bill Morneau announced the beginning of a new set of consultations with Indigenous groups.[11] The consultations will determine if and how Indigenous groups might take part in the ownership of the Trans Mountain Pipeline and its expansion project.[12] With up to 129 communities to be consulted over the next several weeks, there is a need to ensure they have a chance for meaningful economic participation in the pipeline.[13] The second hurdle is that Indigenous groups must be committed to working together towards a common purpose or else risk the federal government selling the project to someone else.[14] One Indigenous group, the Iron Coalition, has concerns about making a bid on the pipeline too soon and warns that the ownership of the pipeline is “too important to get wrong.”[15] An Indigenous ownership stake in the Trans Mountain Pipeline Project has the potential to be “a significant step along the spectrum from managing poverty to managing wealth” and stands to positively redefine the relationship between Canada and Indigenous communities as it relates to major resource development.[16]

Ultimately, Indigenous ownership in the Trans Mountain Pipeline Project could be an important step towards Reconciliation between Canada and Indigenous Peoples. The return on investment would provide a key source of wealth that would allow Indigenous Peoples to gain autonomy by reducing their reliance on financial support from the government and thereby contributing to the assertion of their inherent rights to self-determination and self-governance. Recent developments in the Trans Mountain Pipeline Project indicate that the coming weeks will prove to be crucial as the federal government proceeds with the promised consultations and the Indigenous interest groups work to unite towards the common goal of ownership in the Trans Mountain Pipeline.

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here 

Be sure to stay up to date on other happenings with ReconciliAction YEG: 

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Kyle Bakx, “Indigenous groups urged to unite or risk losing out on Trans Mountain pipeline ownership” (07 November 2019), online: CBC News <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

[2] Jill Croteau, “First Nation chiefs work to defeat on-reserve poverty, pitch pipeline investment at Calgary summit” (04 November 2019), online: Global News <globalnews.ca/news/6126288/first-nation-chiefs-poverty-pipeline-calgary/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Delbert Wapass, Wallace Fox & Shane Gottfriedson, “Opinion: Native ownership of Trans Mountain pipeline would replace First Nation poverty with prosperity” (last updated 06 May 2019), online: The Province <theprovince.com/opinion/op-ed/opinion-native-ownership-of-trans-mountain-pipeline-would-replace-first-nation-poverty-with-prosperity>.

[8] Ibid.

[9] Ibid.

[10] Supra note 2.

[11] The Canadian Press, “Trans Mountain pipeline Indigenous ownership talks launched by federal government” (10 February 2020), online: Global News <globalnews.ca/news/6531738/trans-mountain-pipeline-indigenous-ownership-consultations/>.

[12] Ibid.

[13] Ibid.

[14] Supra note 1.

[15] Tony Alexis & Paul Poscente, “The Trans Mountain pipeline – and Indigenous ownership – is too important to get wrong” (25 July 2019), online: The Globe and Mail <www.theglobeandmail.com/opinion/article-the-trans-mountain-pipeline-and-indigenous-ownership-is-too/>.

[16] Ibid.

Indigenous Groups Seeking a Stake in the TMX

"Someone is going to own the pipeline. Indigenous ownership will put Reconciliation into action." 

– Delbert Welpass, Executive Chair and Founder of Project Reconciliation

Tansi Nîtôtemtik,

There are a number of different Indigenous groups who have been making plans to bring a bid forward to buy the Trans Mountain Pipeline Expansion Project (TMX). It appears that the federal government is interested in working with Indigenous groups on this. In March 2019, Finance Minister Bill Morneau confirmed that the federal government was working with Indigenous groups regarding their participation in the TMX, noting that the federal government intends the TMX to be moved back into the private sector.[1]

"We've said that we will consider Indigenous equity participation as being an important part of the economic advantage for those groups in the project."

— Bill Morneau, Minister of Finance 

Project Reconciliation

"Someone is going to own the pipeline. Indigenous ownership will put Reconciliation into action."

— Delbert Wapass, Executive Chair and Founder of Project Reconciliation

Project Reconciliation, also called Reconciliation Pipeline, “is an Indigenous-led organization that wants to buy a majority interest in the Reconciliation pipeline by raising funds through equity markets at no cost to taxpayers.”[2] This initiative is comprised of Indigenous groups in British Columbia, Alberta, and Saskatchewan.[3] They are seeking a 51% stake in the TMX and plan to create a “Sovereign Wealth and Reconciliation Fund that will generate long-term revenues for Indigenous communities across the West.”[4] Project Reconciliation is seeking to ensure that “the benefits that flow from resources found on traditional lands will flow directly to Indigenous peoples—to fight poverty, improve infrastructure, and fund clean energy projects that help transition to a low carbon economy.”[5] Project Reconciliation has identified 340 Indigenous communities (205 in British Columbia, 75 in Saskatchewan, and 56 in Alberta) who are able to join this initiative to own a part of the TMX.[6]

For more information on this project, click here.[7]

Iron Coalition

“Having Indigenous ownership in the Trans Mountain pipeline is an opportunity to bring positive and lasting economic change into our communities.”

— Chief Billy Morin, Enoch Cree Nation

The Iron Coalition is an Alberta based group seeking ownership of the TMX with the intention of bringing “economic benefit directly back into their communities.”[8] The Iron Coalition has been mandated by the Assembly of Treaty Chiefs and is offering all First Nations and Metis communities in Alberta a chance to join them and have equal ownership of the TMX.[9] The Iron Coalition states that it is different from similar groups because they are not profiting from TMX ownership.[10]

Learn more about the Iron Coalition here.[11]

The Indian Resource Council

“It’s an opportunity to find ways that some of our communities can get out of poverty.”

— Stephen Buffalo, Indian Resource Council CEO

The Indian Resource Council (IRC), founded in 1987, is comprised of over 130 First Nations across Canada that have, or have the potential to have, oil and gas production on their land.[12] The majority of the members are in western Canada.[13] In January 2019, the IRC met to discuss potential ownership of the TMX.[14] The IRC is hoping to see the TMX as 100% Indigenous owned and operated.[15] This will bring more economic opportunity to the IRC members. Stephen Buffalo, CEO of the IRC, noted that their “end game is not to own a pipeline, it’s Indigenous ownership (of resources).”[16]

Learn more about the Indian Resource Council here.[17]

The Western Indigenous Pipeline Group

“The pipeline is a piece of infrastructure that we want to acquire so we can have a better tomorrow.”

—  Chief Michael LeBourdais, Whispering Pines/Clinton Indian Band and Director of the Western Indigenous Pipeline Group

The Western Indigenous Pipeline Group is comprised of 55 First Nations who live along the pipeline route.[18] They are seeking a 51% stake in the TMX.[19] Michael LeBourdais, Chief of the Whispering Pines/Clinton Indian Band and Director of the Western Indigenous Pipeline Group, says that this group is unique because the 55 bands in the group are actually situated along the TMX route.[20] He notes that because the First Nations in the Western Indigenous Pipeline Group are along the pipeline route, they are “the ones that are most familiar with how the pipeline operates.”[21]

As of right now, the Western Indigenous Pipeline Group does not have their own website.

It is promising that the federal government is seriously considering Indigenous ownership of the TMX. The TMX offers Indigenous groups the opportunity to benefit financially from the resources on their land and is a promising step towards reconciliation. Tomorrow, we will be considering the ways that Indigenous ownership of the TMX can benefit Indigenous communities. Going forward, it is important that the different Indigenous groups seeking a stake in the TMX work together to ensure that the largest number of people possible are able to benefit from the initiative. It is also important to note that there are many other Indigenous groups who do not support the TMX. We will also be discussing these perspectives later this week.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] CBC News, “Finance minister says government consulting with Indigenous groups on Trans Mountain pipeline” (26 March 2019) CBC News, online: <https://www.cbc.ca/news/canada/calgary/government-indigenous-groups-trans-mountain-pipeline-1.5071409>.

[2] Reconciliation Pipeline, “About Us” Reconciliation Pipeline, online: <https://www.reconciliationpipeline.ca/about_us>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Reconciliation Pipeline, “Who Can Own” Reconciliation Pipeline, online: <https://www.reconciliationpipeline.ca/who_can_own>.

[7] Reconciliation Pipeline, “Home” Reconciliation Pipeline, online: <https://www.reconciliationpipeline.ca/>.

[8] Iron Coalition, “About” Iron Coalition, online: <https://ironcoalition.com/> [Iron Coalition].

[9] Ibid.

[10] Iron Coalition, “FAQ” Iron Coalition, online: <https://ironcoalition.com/faq/>.

[11] Iron Coalition, supra note 1.

[12] Indian Resource Council, “About” Indian Resource Council, online: <http://irccanada.ca/about/> [Indian Resource Council].

[13] Ibid.

[14] Tamara Pimentel, “IRC First Nations meet outside Calgary to discuss buying Trans Mountain pipeline project” APTN News, online: <https://aptnnews.ca/2019/01/17/irc-first-nations-meet-outside-calgary-to-discuss-buying-trans-mountain-pipeline-project/>.

[15] Ibid.

[16] Ibid.

[17] Indian Resource Council, supra note 12.

[18] Mark Strashok, “Coalition of Indigenous bands looking to buy 51% stake in TMX pipeline” (14 October 2019) City News, online: <https://edmonton.citynews.ca/2019/10/14/coalition-of-indigenous-bands-looking-to-buy-51-stake-in-tmx-pipeline/>.

[19] Ibid.

[20] Ibid.

[21] Ibid.

A Brief History of the Trans Mountain Pipeline Expansion Project

 

 Image by Brian Zinchuk for Pipeline News.

Tansi Nîtôtemtik,

In May, 2018, the Government of Canada purchased the Trans Mountain Pipeline Expansion Project (TMX) and its related assets from Kinder Morgan for $4.5 billion.[1] While the Government of Canada intends to put the pipeline back into the private sector, the TMX is presently under government control. With an expected “$46 billion in government revenues…in the first 20 years of operation,” the TMX is “Canada’s rise to the challenge of delivering oil extracted with stringent regulatory oversight and environmental protection to meet the world’s energy needs.”[2]

A large part of the construction of the TMX is the imperative consultation with Indigenous groups. Minister Morneau, Canada’s Finance Minister, said that these consultations are being guided by four main principles:

1. The potentially impacted Indigenous communities would have an opportunity for meaningful economic participation in the project;
2. Indigenous groups’ participation could help the economic development of their communities, in keeping with the spirit of reconciliation;
3. The government invested in the TMX to benefit all Canadians; and
4. The project would be built and operated on a commercial basis.[3]

The Duty to Consult

The duty to consult is a constitutional duty[4] imposed on the Crown when “the Crown proposes action that may adversely affect Indigenous rights or title.”[5] Consultation is a legal obligation, even where Indigenous rights are asserted but not yet proven.[6] Failure to engage in meaningful consultation with Indigenous groups could lead to the quashing of the project, as was demonstrated in the Federal Court of Appeal’s 2018 case of Tsleil-Waututh Nation v Canada (Attorney General) (“TWN 2018”).[7] One of the two reasons for quashing the TMX was the Crown’s failure to appropriately discharge its duty to  consult with affected Indigenous groups.[8] In particular, “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada” in Phase III of the consultation framework.[9] Canada “failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”[10]

Two weeks ago, the Federal Court of Appeal, in Coldwater First Nation v Canada (Attorney General), approved the TMX expansion.[11] This is a major development in the TMX story and we will be addressing this decision in a spotlight post this Friday on the blog.

History of the Duty to Consult

Particulars of the duty to consult are set out in the 2004 Supreme Court of Canada (SCC) decision of Haida Nation v British Columbia (Minister of Forests).[12] In that case, it was recognized that the government’s “duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.”[13] The case also outlined that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[14]

In Delgamuukw, [former] Chief Justice Lamer explained the nature and scope of the duty to consult:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to title…In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.[15]

In cases where deep consultation is required, the SCC in Haida Nation stated:

While precise requirements will vary with the circumstances, the consultation required…may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact the had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.[16]

Furthermore, consultation is to be done “with good faith to provide meaningful consultation appropriate to the circumstances,”[17] and must be responsive to Indigenous concerns.[18] These components of consultation play a large role in the current TMX proposal as there are “120 Indigenous in communities in Alberta and BC along the Trans Mountain pipeline’s corridor,” each with unique interests and rights affected.[19]

Indigenous Concerns

Many Indigenous groups have strongly opposed the TMX expansion. While the “[former] Natural Resources Minister Amarjeet Sohi… met with 65 Indigenous groups across 46 meetings,” many Indigenous groups remain unsatisfied.[20] Chief Leah George-Wilson for the UBCIC stated that:

Tsleil-Waututh again engaged in consultation in good faith, but it was clear that the federal government had already made up their mind as the owners of the project.[21]

There are many concerns that Indigenous groups have with the TMX expansion. For instance, the Coldwater First Nation “sits on an aquifer of potable water that they can drink without treatment.” A groundwater specialist determined that should the expansion proceed, it would cut through this aquifer, leading to concerns that a spill is imminent.[22]  For Chief Spahan of the Coldwater First Nation, a spill “is not a matter of if…but when.”[23]

Further still, Merle Alexander, “who represents the Shxw’owhamel First Nation near Hope, British Columbia” was once in favour of the pipeline but is now opposed to its expansion.[24] The biggest concern for this Indigenous community is that “an oil spill would destroy its sacred burial and archeological sites as well as the community’s sole source of water.”[25]

Conclusion

The TMX Project has been a continuous development over the last number of years and is a topic that is constantly evolving. Indigenous communities are being affected by the proposed project and new developments stemming from the 2020 Federal Court of Appeal decision will be numerous.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Robyn Finley, “Radically Refining Roles: Proposed Indigenous Ownership of the Trans Mountain Pipeline” (18 November 2019) Burnet, Duckworth & Palmer LLP Energy Newsletter, online: <www.bdplaw.com/publications/> [Finley].

[2] Ibid.

[3] Ibid.

[4] See R v Kapp, 2008 SCC 41 at para 6.

[5]  Finley, supra note 1

[6] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida Nation].

[7] “Trans Mountain Expansion Project” Major Projects Management Office of the Government of Canada, online: <www.mpmo.gc.ca/measures/256>; Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [TWN 2018].

[8] TWN 2018, ibid at para 6.

[9] Ibid.

[10] Ibid.

[11] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34.

[12] Supra note 5.

[13] Ibid at para 16.

[14] Supra note 6.

[15] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 168.

[16] Haida Nation, supra note 6 at para 44.

[17] Ibid at para 41.

[18] Tsleil-Waututh Nation, supra note 7 at para 6.

[19] Ibid.

[20] “With Trans Mountain Expansion Greenlit Again, Indigenous Leaders Vow to Fight On” (18 June 2019) Global News, online: <www.globalnews.ca/>.

[21] Ibid.

[22] Nick Purdon & Leonardo Palleja, “Trans Mountain Pipeline: Why Some First Nations Want to Stop It – and Others Want to Own It” (5 October 2019) CBC News, online: <www.cbc.ca/news/>.

[23] Ibid.

[24] Camille Bains, “6 First Nations Launch New Court Challenge to Trans Mountain Pipeline” (9 July 2019) CBC, online: <www.cbc.ca/news/>.

[25] Ibid.

Spotlight: Natan Obed

Image retrieved from: The Walrus

Tansi Nîtôtemtik,

Today’s spotlight post is on Natan Obed, Inuit Tapiriit Kanatami (ITK) President and Canadian National Inuit Leader. Born in Labrador, Obed spent his teen years in the United States.[1] His mother was white American and his father was Inuk.[2] His parents met at the residential school where his mother was a dorm mother.[3] Because of his “mixed” upbringing, many questioned his identity as Inuk.[4] Regardless of the skepticism, Obed did not allow any of these judgments to hinder his ability to lead. In 2015, Natan Obed ran for president for the ITK. [5] The ITK is “the national representational organization protecting and advancing the rights and interests of Inuit in Canada.”[6]

Natan Obed was forty-two when he ran in the election.[7] As the youngest of the three candidates, many felt that he reflected “a new generation of Inuit in Canada” and that he was best-suited to lead a population of which the majority are under twenty-five.”[8] Others doubted his ability to lead, stating that he was not “Inuk enough.” [9] Of particular concern for some in the community was the fact that Obed was not fluent in Inuktitut, the “Inuit language as spoken in Nunuvut.”[10] This has not deterred Obed. In fact, he urges that individuals being perceived as not “Inuk enough” based on their lack of fluency in the language is “not reflective of where we’re at.”[11] According to Obed, “there’s so many young Inuit now that are not completely fluent in Inuktitut, that have grown up with one parent who’s Inuk and one parent who has grown up outside of it.”[12]

Natan Obed is a modern representation of the Inuit community. He has used his media knowledge to “convey a modern, nuanced idea of what it means to be Inuk – a picture that includes the effects of colonialism across generations and supersedes long-held stereotypes.”[13] He hopes that going forward, the Inuit Peoples will be able to “continue to implement self-determination.”[14] He is also focused on reducing violence in Inuit communities and ensuring that traditions are passed down from generation to generation.[15] Furthermore, he hopes to be “celebrating classes of Inuit people who are doing amazing work.”[16]

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Samia Madwar, “Becoming Natan Obed” (12 November 2019) The Walrus, online: www.thewalrus.ca/becoming-natan-bed/ [Madwar].

[2] CBC Radio, “’I am Inuk’: Natan Obed on his Complicated Childhood, Challenging Questions and the Future of the Inuit” (5 April 2019) CBC, online: www.cbc.ca/radio/unreserved/> [CBC Radio].

[3] Ibid.

[4] Ibid.

[5] Madwar, supra note 1.

[6] Inuit Tapiriit Kanatami, online: <www.itk.ca>.

[7] Ibid.

[8] Madwar, supra note 1.

[9] Ibid.

[10] Inuktut Tusaalanga, “What is Inuktut?”, online: <www.tusaalanga.ca/node/2502/>.

[11] CBC Radio, supra note 2.

[12] Ibid.

[13] Madwar, supra note 1.

[14] CBC Radio, supra note 2.

[15] Ibid.

[16] Ibid.

Inuit Tapiriit Kanatami

Image retrieved from: https://www.itk.ca/

Tansi Nîtôtemtik,

Today, we want to introduce you to Inuit Tapiriit Kanatami [ITK], an Inuit organization that represents and works with the 4 Inuit regions in Canada collectively known as Inuit Nunangat: Inuvialuit Settlement Region (NW Territories), Nunavut, Nunavik (Northern Quebec), and Nunatsiavut (Northern Labrador).

About Inuit Tapiriit Kanatami

ITK’s vision is to see “Canadian Inuit prospering through unity and self-determination,” and their mission is to “[s]erve as a national voice protecting and advancing the rights and interests of [the 65,000] Inuit in Canada.”[1]

The ITK was founded in 1971 in Toronto, during a meeting by 7 Inuit community leaders, out of a “shared concern … about the status of land and resource ownership in Inuit Nunangat” and industrial encroachment “from projects such as the then proposed Mackenzie Valley pipeline in the Northwest Territories and the James Bay project in Northern Québec.”[2] It was “agreed that forming a national Inuit organization was necessary to voice their concerns about these and related issues.”[3] Throughout its history, ITK has been active in land claims and has “played a leading role in the broader recognition of Indigenous rights in Canada”, even overseeing the Inuit Committee on National Issues, which successfully lobbied for the reinstatement of Section 35 of the Constitution Act, 1985 after it was removed in 1981.[4]

While initially called “Inuit Tapiriit Canada,” the organization’s name was changed to “Inuit Tapiriit Kanatami” (which translates as “Inuit are united in Canada”) in 2001 “to reflect the settlement of land claims agreements in all Inuit regions following the Labrador Inuit Association’s signing of an Agreement-in-Principal for the Labrador land claims agreement.”[5] The current president is Natan Obed.[6]

ITK’s Work

The ITK works on a variety of projects in support of Canada’s Inuit communities. Here are a few highlights:

Community-Based Food Initiatives

ITK’s Nuluaq Project works to map community-based initiatives combatting food insecurity throughout Inuit Nunangat.[7] 11 organizations, 12 projects, and 15 communities across the 4 regions are involved with the project. Initiative types range from: country food knowledge sharing programs, food banks, community and soup kitchens, greenhouses, community freezer programs, hunter support programs, and commercial hunts.[8]

National Inuit Youth Counsel

ITK established the National Youth Council (NIYC) in 1993 in order “to provide guidance and input into issues of interest for Inuit youth in Canada.” The NIYC is made up of 7 representatives (6 voting members and 1 president) who are each “tasked with voicing the concerns and ideas of Inuit youth from their respective regions,” while the president (currently held by Crystal Martin-Lapenskie) serves “as the National voice of Inuit youth.”[9]

Climate Action

ITK recognizes that “[t]he world is looking to [their] homeland as a symbol of the planet’s changing climate.”[10] They also recognize that, to Inuit, climate change is “more than symbolic,” and that “[n]o one has more at stake when it comes to addressing climate change than Inuit.”[11] In response to the dire need to take climate action, ITK has established a National Climate Change Strategy.[12] The strategy focuses on 5 priority areas: (1) knowledge and capacity building; (2) health, well-being and the environment; (3) food systems; (4) infrastructure; and (5) energy.[13]

To learn more about the ITK and their projects, you can visit their website here.[14]

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] “Who We Are”, Inuit Tapiriit Kanatami, online: <https://www.itk.ca/national-voice-for-communities-in-the-canadian-arctic/>.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] See tomorrow’s post for an spotlight on Natan Obed.

[7] See <https://www.itk.ca/nuluaq-mapping-project/>. A map of projects is available here: <https://www.itk.ca/nuluaq-mapping-project/itk-food-security-map-canada/>.

[8] <https://www.itk.ca/nuluaq-mapping-project/itk-food-security-canada-glance/>.

[9] “National Inuit Youth Council”, Inuit Tapiriit Kanatami, online: <https://www.itk.ca/niyc/>.

[10] <https://www.itk.ca/national-inuit-climate-change-strategy/vision-and-purpose/>

[11] Ibid.

[12] See: <https://www.itk.ca/national-inuit-climate-change-strategy/resources/>

[13] <https://www.itk.ca/national-inuit-climate-change-strategy/>

[14] Inuit Tapiriit Kanatami, online: <https://www.itk.ca>.

Inuit People and Nunavut’s Unique Governance Model

Image retrieved from: Nunavut Legislative Assembly

Tansi Nîtôtemtik,

The territory of Nunavut turned 20 years old in 2019. In pushing for the development of Nunavut, a central goal of the Inuit was to have a government “numerically dominated by Inuit” which would also be “[operated] by Inuit cultural principles.”[1] Traditional Inuit law was customary and unwritten – according to elder Mariano Aupilaarjuk “the maligait [laws] of the Inuit are not on paper. They are inside people’s heads and they will not disappear.”[2] Like other Indigenous Peoples, the Inuit have faced colonial pressures to give up their traditional legal system. While the creation of Nunavut was meant to safeguard Inuit culture and control in the territory, questions remain among some Inuit people if the institutions of Nunavut meet their needs.

The governance of the territory is unique because “there are two Nunavuts… 1) the Nunavut Settlement Area governed by Nunavut Tunngavik Inc. [NTI] for the benefit of Inuit beneficiaries only; and 2) the territory of Nunavut, governed by the Government of Nunavut” for the benefit of all people in the territory.[3] This unique governance model was born after intense negotiations between the federal government and Inuit leaders – culminating in the royal assent of the Nunavut Act[4] and the Nunavut Land Claims Agreement Act [NLCA Act].[5] These two acts form the basis for governance of Canada’s Eastern Arctic.

After Nunavut’s creation, the NTI was established to govern the implementation of the NLCA Act on behalf of the Inuit. According to NTI, the organization “coordinates and manages Inuit responsibilities and ensures that the federal and territorial governments fulfill their obligations” to the Inuit people.[6] NTI monitors wildlife in the territory and the historic land claim of the Inuit people – approximately 350,000 square kilometers.[7] Funding for the organization is received through compensation from the land claim agreement and from resource royalties.[8]

By contrast, the Government of Nunavut gets its jurisdiction from the Nunavut Act. The Government operates like any other bureaucratic government in Canada, possessing institutional organs and departments such as health, education, culture, language, and intergovernmental affairs.[9] While local MLAs are elected to the Nunavut Legislative Assembly, there are no political parties and the premier and cabinet are elected from the MLAs through a system of “consensus government” (a similar system operates in the Northwest Territories).[10] While Inuit culture and Inuit MLAs are predominate in the Legislative Assembly,[11] there has been criticism from some Inuit that there are not enough Inuit workers in the Government bureaucracy and that the Government is not doing enough to better the life of everyday Inuit.[12]

For this reason, relations between the Government of Nunavut and the NTI have been “strenuous.”[13] Malachi Arreak, an Inuit negotiator in the original negotiations with Canada, believes that if more self-government had been granted to the Inuit in the original negotiations, then many of the problems in contemporary Nunavut would be less serious.[14] NTI President Aluki Kotriek has given support for exploring greater Inuit self-government, stating: “If the territorial public government isn’t meetings the needs of the Inuit, is there another way in which we can do that?”[15]

However, on January 21, 2020, the Government of Nunavut and NTI signed a renewed protocol which gave a “renewed commitment to implementation of the Nunavut Agreement and [to] working together to benefit Nunavut Inuit.”[16] While some Inuit people may see problems with their current governance structure and representation of Inuit people in it, it seems like Nunavut’s unique governance model is stable for the foreseeable future.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Graham White, “Governance in Nunavut: Capacity vs culture?” (2009) 43:2 Journal of Canadian Studies 58 [White].

[2] Mariano Aupilaarjuk, “Tirigusuusiit and Maligait” in Jarich Oosten, Frédéric Laugrand & Wim Rasing, eds, Interviewing Inuit Elders: Perspectives on Traditional Law, Volume 2 (Iqaluit: Nunavut Arctic College, 1999) at 14.

[3] Francis Lévesque, “Revisiting Inuit Qaujimajatuqangit: Inuit knowledge, culture, language and values in Nunavut institutions since 1999” (2014) 38:1-2 Études/Inuit/Studies 120 [Lévesque].

[4] SC 1993, c 28.

[5] SC 1993, c 29.

[6] “About NTI,” Nunavut Tunngavik Incorporated, online: <tunngavik.com/about/>.

[7] Lindsay Jones, “As Nunavut turns 20, Inuit rethink their own governance,” Maclean’s (12 December 2018), online: <macleans.ca/politics/as-nunavut-turns-20-inuit-rethink-their-own-governance/> [Jones].

[8] Ibid.

[9] Lévesque supra note 3 at 120.

[10] White supra note 1 at 64.

[11] Ibid

[12] Jones supra note 7.

[13] Lévesque supra note 3 at 120.

[14] Jones supra note 7.

[15] Ibid.

[16] Nunavut Tunngavik Incorporated, Press Release, “Government of Nunavut and Nunavut Tunngavik Incorporated Sign Renewed Protocol” (20 January 2020), online: <tunngavik.com/news/media-advisory-government-of-nunavut-and-nunavut-tunngavik-incorporated-sign-renewed-protocol/>.

Key Challenges for Inuit Communities

Image retrieved from: <https://cmajnews.com/2018/05/30/language-barriers-restricting-access-to-health-care-for-indigenous-populations-cmaj-109-5613/

Tansi Nîtôtemtik,

Yesterday, we opened our week-long focus on Inuit governance by laying out the history of Nunavut, the traditional land of the Inuit people of Canada and a territory founded on the principle of Inuit self-governance. Today, we turn to consider the unique challenges faced by Inuit communities and their governance.

Canada’s Inuit population is spread across four northern regions in Canada: Nunavut, Inuvialuit (in the Northwest Territories), Nunavik (in northern Quebec), and Nunatsiavut (in northern Labrador) – collectively known as “Inuit Nunangat.” Living in such northern parts of Canada comes with unique issues and challenges for Inuit communities. Such challenges include food insecurity, a lack of infrastructure and services, and language barriers.

Food Insecurity

Food insecurity has become a crisis for Canada’s Inuit population. Food security “exists when a person does not have physical or economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life. This can range from not having the ability to afford a balanced diet, to not being able to eat culturally acceptable foods, to missing meals or not eating for days at a time.”[1] Almost 70% of Inuit homes in Nunavut are food insecure – this is 8 times higher than the Canadian average. It is also higher than any other region in Inuit Nunangat. Nunatsiavut, for example, reports food security in 46% of Inuit homes, while the number is 43% in Inuvialuit.[2]

Such food insecurity is largely a result of extraordinarily high food prices in the north. The Facebook group “Feeding My Family” documents just how high prices can be.[3] Some food is subsidized though the federal Nutrition North program,[4] but in reality this does little to help families.[5] Traditional and sustainable hunting of caribou, seals, or whales is essential for combatting food insecurity, but the investments required to access country food are also high, and hunting practices are still strongly campaigned against by non-Inuit persons.

Infrastructure & Services

Northern communities do not have access to the same infrastructure and services the rest of Canada enjoys. This creates limitations for community development and economic opportunities for communities.

According to the Inuit advocacy organization Inuit Tapiriit Kanatami, no Inuit communities are connected to the North American power grid. Rather, Inuit communities rely heavily on diesel fuel for electricity, heating and transportation to basic resources.[6]

Effective transportation is also lacking in the north. While some road networks are developed, all-season road access between communities is limited[7] and geography creates high average travel distances.[8] Transportation by plane is heavily relied upon by most communities, especially for transporting goods and supplies, but the long-distance travel creates prohibitive prices for products.[9] Marine transportation is more cost-effective and relied upon for natural resource development, but is not accessible for land-locked communities, and existing infrastructure is “often barebones and rudimentary.”[10]

Provision of key services such as healthcare is also limited due to the geographical isolation of the north. Most Inuit peoples have no choice but to fly south in order to access healthcare.[11] Educational infrastructure is also limited, with few high schools and colleges across the regions, although “land claim agreements across the regions of interest provide important frameworks for the development of post-secondary support services” in certain communities.[12]

Finally, there is a “particularly acute” shortage of “affordable, adequate, and suitable housing” for Inuit populations in the north.[13] Water distribution, meanwhile, relies heavily on trucking rather than piping,[14] while telecommunications and internet access is highly dependent on satellite transport facilities.[15]

Language Barriers

The isolation faced by Canada’s Inuit goes beyond the geographical. Inuit communities and Inuk individuals have trouble accessing what services are available in their native dialects of Inuktitut. This language barrier ultimately bars participation in, and understanding of, the judicial and medical systems.[16]

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] “Background on Food Insecurity”, Inuit Tapiriit Kanatami, online: <https://www.itk.ca/nuluaq-mapping-project/inuit-food-insecurity-canada-background/>

[2] See Nunavut Food Security Coalition, “Rates”, online: <https://www.nunavutfoodsecurity.ca/Rates>.

[3] Feeding My Family, online: <https://www.facebook.com/groups/239422122837039/>.

[4] Nutrition North Canada, online: <https://www.nutritionnorthcanada.gc.ca/eng/1415385762263/1415385790537>

[5] See e.g., Katie Pedersen, Greg Sadler, and David Common, “Why millions of dollars in federal grocery subsidies haven’t lessened food insecurity in the North”, CBC News (29 March 2019), online: <https://www.cbc.ca/news/business/north-food-prices-nutrition-north-marketplace-1.5074520>

[6] “National Inuit Climate Change Strategy Priorities”, Inuit Tapiriit Kanatami, online: <https://www.itk.ca/national-inuit-climate-change-strategy/priorities/>

[7] Centre for the North at the Conference Board of Canada, “Study on Addressing the Infrastructure Needs of Northern Aboriginal Communities” (December 2014) at 18-19, online: <http://www.naedb-cndea.com/reports/northern-infrastructure-report.pdf> [“CNCBC Study”].

[8] Ibid at 21.

[9] Ibid at 22.

[10] Ibid at 24.

[11] See e.g., CBC News, “Health care often inaccessible to Inuit: report”, (3 December 2008), online: <https://www.cbc.ca/news/canada/health-care-often-inaccessible-to-inuit-report-1.759107>.

[12] “CNCBC Study”, supra note 7 at 40.

[13] Ibid at 42.

[14] Ibid at 45.

[15] Ibid at 33.

[16] See e.g., Catou MacKinnon, “Language barrier makes court baffling for many Inuit, justice workers say”, CBC News (20 November 2018), online: <https://www.cbc.ca/news/canada/montreal/inuit-language-barrier-court-1.4912044>; Paul Webster, “Language barriers restricting access to health care for Indigenous populations”, CMAJ News (30 May 2018), online: <https://cmajnews.com/2018/05/30/language-barriers-restricting-access-to-health-care-for-indigenous-populations-cmaj-109-5613/>.

A Brief History of Nunavut and the Inuit People

"Out of my Way" by Elsie Anaginak Klengenberg

Retrieved from: https://www.tunngavik.com/documents/publications/2004-00-00-A-Plain-Language-Guide-to-the-Nunavut-Land-Claims-Agreement-English.pdf

Tansi Nîtôtemtik,

This week, we are exploring Inuit self-governance and the unique elements of governance based in Inuit land claims in Canada. Today in particular, we provide a brief history of Nunavut and its Inuit people.

Nunavut was created in 1999 after the division of the Northwest Territories into two areas. Nunavut means “our land” in Inuktut, the Inuktitut dialect spoken by the Inuit in Nunavut.[1] Nunavut is the traditional lands of the Inuit and the population of Nunavut is approximately 85% Inuit.[2] The creation of Nunavut meant that the Inuit gained control over their own institutions.[3] The creation of Nunavut as a separate territory occurred through the Nunavut Land Claims Agreement and set the foundation for Inuit self-governance.

The Nunavut Land Claims Agreement is the largest land claim agreement in Canada. It began in the 1970s with a study on where the Inuit lived, currently and throughout history.[4] The study also considered how the Inuit lived and where they travelled and hunted.[5] These findings were essential to establishing where the borders of Nunavut would eventually be drawn. The negotiations for the Nunavut Land Claims Agreement spanned over 20 years and during all that time, Inuit negotiators always had the primary goal of self-government and establishing a separate territory.[6] The final agreement was ratified in 1992 and became law in Canada in 1993.[7]

“A key goal of the Agreement is to encourage self-reliance. This includes the cultural and social well-being of Inuit.”[8] While Nunavut still has a public government, the Agreement allows for Inuit control over a number of matters. The Agreement created boards which allow for the joint management of “all lands, waters and wildlife resources.”[9]

The Nunavut Land Claims Agreement was a major change in Canadian history and set the stage for Inuit moving forward. The Agreement allowed for self-government, but it is important to note that the Agreement “should not be seen as a gift.”[10] It is a contract that gives Inuit the rights and benefits set out in the Nunavut Land Claims Agreement.[11]

Until Next Time,

Team ReconciliAction YEG

--- 

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Government of Canada, “Nunavut – September 2003”, Government of Canada (15 September 2010), online: <https://www.aadnc-aandc.gc.ca/eng/1100100016496/1100100016497>.

[2] Ibid.

[3] CBC Digital Archives, “The Creation of Nunavut”, CBC News, online: <https://www.cbc.ca/archives/topic/the-creation-of-nunavut>.

[4] Indigenous Corporate Training Inc., “Nunavut Land Claims Agreement Turns Twenty – 10 Fast Facts” (9 July 2013), online: <https://www.ictinc.ca/blog/nunavut-land-claims-agreement-turns-twenty-10-fast-facts>.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Nunavut Tunngavik Incorporated, “A Plain Language Guide to the Nunavut Land Claims Agreement” (2004), pdf: <https://www.tunngavik.com/documents/publications/2004-00-00-A-Plain-Language-Guide-to-the-Nunavut-Land-Claims-Agreement-English.pdf>.

[9] Ibid.

[10] Ibid.

[11] Ibid.

In the Media: Sharing Indigenous Cultural Practices in Schools does not Violate s. 2(a) of the Charter (Servatius v. Alberni School District No. 70)

Image from: The Globe and Mail 

Tansi Nîtôtemtik,

In a recent decision, the British Columbia Supreme Court found that an Indigenous smudging ceremony conducted at a BC elementary school was an effort to teach children about Indigenous beliefs and did not violate the Charter of Rights and Freedoms (Charter).[1] In the application, Candice Servatius argued that her children experienced mental distress from exposure to Indigenous ceremonies at their school.[2] Servatius and her children are evangelical Christians and, as such, it is against their religious beliefs to participate in “religious, spiritual, or supernatural ceremonies” that are not part of their faith.[3] Servatius brought the claim that the Indigenous ceremonies violated her children’s rights under s. 2(a) of the Charter. 

Section 2(a) of the Charter protects freedoms of conscience and religion. “The purpose of s. 2(a) is to prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.”[4]

Justice Douglas Thompson found that when Indigenous spiritual events are held in schools, the “School District is not professing or favouring Indigenous beliefs.”[5] Rather, these are ways to teach students about Indigenous culture. Notably, Justice Thompson outlined that state neutrality would not be compromised if the class learned about Indigenous beliefs through a textbook, watching films, or travelled on a field trip to see traditional Indigenous ceremonies.[6] As such, it does not compromise state neutrality for traditional practices to be shared in the classroom.[7]

British Columbia Supreme Court documents indicate that approximately one third of the students in the Port Alberni School District, where this ceremony took place, are Indigenous.[8] The School District has taken steps to increase awareness of Indigenous culture in response to the high proportion of Indigenous students.[9] The Nuu-chah-nulth Tribal Council represents 14 First Nations in the area of the Port Alberni School District. The Council intervened in the case to ensure that children continue to be able to learn about their culture in schools. It is important that children are exposed to culture in school, with studies indicating a correlation between student success and learning about culture. This was of particular concern in this case, given that many of the students in the School District are learning about their own culture. As such, sharing of culture in school can make school a more welcoming place for Indigenous students.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Justine Hunter, “Smudging ceremony in school did not violate freedom of religion: BC Supreme Court”, The Globe and Mail (9 January 2020), online: <https://www.theglobeandmail.com/canada/british-columbia/article-smudging-ceremony-in-school-did-not-violate-freedom-of-religion-bc/>.

[2] Ibid.

[3] Ibid.

[4] Servatius v. Alberni School District No. 70, 2020 BCSC 15 at para 66 [Servatius].

[5] Ibid at paras 85, 97.

[6] Ibid at para 85.

[7] Ibid.

[8] Srushti Gangdev, “School smudging demonstration didn’t violate Christian family’s Charter rights: BC Supreme Court”, Global News (8 January 2020), online: <https://globalnews.ca/news/6384798/smudging-demonstration-charter-rights-bc-supreme-court/>.

[9] Ibid.

Recent Developments and Ongoing Challenges in Métis Self-Governance

Prime Minister Justin Trudeau and President Clément Chartier of the Métis National Council at the signing of the Canada-Métis Nation Accord in Ottawa on April 13, 2017.

Image from: https://www.rcaanc-cirnac.gc.ca/fra/1499711968320/1529105436687?wbdisable=true

Tansi Nîtôtemtik,

This week, ReconciliAction YEG highlighted topics in Métis governance. We have discussed how the Métis emerged as a distinct Indigenous nation and often asserted their right to remain a free people through political organization.[1] Political action is a deeply personal experience and source of empowerment for the Métis Nation as a whole, and continues to serve as a way to protect ka ishi pimaatishiyaahk (“our way of life”).[2] Today’s post delves into recent judicial and political developments and discusses the ongoing challenges in Métis self-governance and self-determination.

Case Law

Decisions out of the Supreme Court of Canada over the last 20 years recognizing and defining the relationship between the federal government and the Métis Nation laid the groundwork for recent progress in the Métis self-government agenda. Most significant are the three cases which have paved the way for current and future government-to-government negotiations, namely: R v Powley,[3] Manitoba Métis Federation Inc v Canada (Attorney General);[4] and Daniels v Canada (Indian Affairs and Northern Development).[5] While we did not have time to cover each of these cases in detail, useful summaries of the case law and information about their significance for Métis rights and governance can be found at the following links: R v Powley,[6] Manitoba Métis Federation Inc.,[7] and Daniels.[8] Together, the three cases achieved the following: confirmed that the Métis hold constitutionally protected rights;[9] pronounced that the Crown has historically failed to carry out its promises to the Métis and to protect Métis constitutional rights;[10] and clarified the federal government’s responsibility to the Métis under the constitution.[11]

 

Report of Ministerial Special Representative on Reconciliation with the Métis

In July of 2016, Ministerial Special Representative Thomas Isaac released the Report A Matter of National and Constitutional Import: Report of Minister’s Special Representative on Reconciliation with Métis: Section 35 Métis Rights and the Manitoba Metis Federation Decision.[12] The Report called “for a fundamental change in the mindsets of federal and provincial governments when dealing with Métis people and the Métis Nation.”[13] The central message is that “these governments and administrations have to start respecting the Métis as section 35 rights holders and to realign their attitudes and actions with this reality.”[14] The developments in case law on Métis rights along with the findings in the Special Representative’s Report played a role in the Canada-Métis Nation Accord which followed less than a year after the release of the Report. You can find the Special Representative’s Report here.[15]

 

The Canada-Métis Nation Accord

On April 13, 2017, the historic Canada-Métis Nation Accord was signed at the inaugural Métis-Nation Crown Summit in Ottawa.[16] The Accord was groundbreaking for both its recognition of the historical struggle of the Métis to remain ka tipemishoshik (the free people) and for the clear path it charted towards a “reconciliation between the Métis Nation and Canada through the implementation of Métis section 35 rights and the resolution of outstanding grievances.”[17] In facilitating the new relationship between Canada and the Métis National Council, the Accord created a permanent bilateral mechanism consisting of annual meetings between Métis leaders and the prime minister and provides for bilateral and quarterly meetings between Métis cabinet members and departmental officials.[18] Significantly, the accord “brings to an end 150 years of state denial regarding Métis constitutional rights and acknowledges the need to politically negotiate these rights on a government-to-government basis.”[19] The accord also confirms Canada’s commitment to a renewed relationship with the Métis National Council’s Governing Members in order to “further Métis self-government, while respecting Métis rights and ending the status quo.”[20]

The signing of the Accord represented “the culmination of the collective efforts of the Métis over the past century and a half to bring to life their inherent right to self-government and to force Canada’s hand in acknowledging and implementing this right”[21] and set the stage for the  self-government agreements to follow two years later.

You can find the Canada-Métis Nation Accord here.[22]

The Canada-Métis Self-Government Agreements

On June 27, 2019, the federal government signed the first ever Métis self-governance agreements with the Métis Nation of Alberta, the Métis Nation – Saskatchewan, and the Provisional Council of the Métis Nation Ontario.[23] You can view the unsigned version of the self-government agreement between Canada and the Métis Nation of Alberta here.[24]

The deals stipulate annual fiscal transfers from the federal government, which are not open to renegotiation.[25] For Métis Nation of Alberta President Audrey Poitras the signing of the agreements represents the realization of 90 years of perseverance and struggle to see Louis Riel’s vision for Métis self-governance and independence become reality.[26] The agreements recognize Métis jurisdiction in core governance areas such as citizenship, leadership selection and government operations. The agreements also lay the groundwork for “negotiating additional areas of jurisdiction in the future.”[27] The coming days and months will demonstrate how each of the respective Métis Nation governments acts on their rights to self-government as they create their constitutions and begin the process of negotiating with Canada for additional areas of jurisdiction in achieving their ultimate goal of independence. To stay up to date on developments in self-governance in the Métis Nation of Alberta, please visit their website here.[28]

Métis Governments Moving Forward

Recently, the Métis Governments of Alberta, Ontario and Saskatchewan held a tri-council meeting in Edmonton, Alberta from January 14 to 16, 2020.[29] This was the first time elected representatives of the respective nations have assembled together since the signing of the self-government agreements with Canada in June of 2019.[30] The Tri-council delegates passed a resolution calling for more transparency and accountability from the Métis National Council as well as affirming that self-government and rights-related discussions and negotiations must be prioritized between Canada and Métis Governments.[31] A joint declaration was also passed, ensuring both the future collaboration of the governments in their negotiations with Canada and the continued development of the relationship of Métis Governments at the national level.[32] You can view the Joint Declaration here[33] and the Resolution here.[34]

Whatever lies ahead for the future of Canada-Métis Nation relations as the Métis assert their rights to self-government and self-determination, the Métis Nation’s ability to adapt to the circumstances at hand and to develop governance structures and processes necessary to meet the changing political and social climate will promise to play an important role in ensuring Canada fulfills its promise of reconciliation. 

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Kelly Saunders & Janique Dubois, Métis Politics and Governance in Canada (Vancouver: UBC Press, 2019) at 125, 147 [Saunders & Dubois].

[2] Ibid at 147.

[3] 2003 SCC 43, online: CanLII <www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html?autocompleteStr=r%20v%20powley&autocompletePos=1> [R v Powley].

[4] 2013 SCC 14, online: CanLII <www.canlii.org/en/ca/scc/doc/2013/2013scc14/2013scc14.html?autocompleteStr=manitoba%20metis%20&autocompletePos=1> [Manitoba Métis Federation Inc].

[5] 2016 SCC 12, online: CanLII <www.canlii.org/en/ca/scc/doc/2016/2016scc12/2016scc12.html?autocompleteStr=daniels%20&autocompletePos=1> [Daniels].

[6] Jean Teillet, “R v Powley : A Summary of the Supreme Court of Canada Reasons for Judgment” (last visited 4 February 2020), online (pdf): Métis Nation of Alberta <www.albertametisgov.com/wp-content/uploads/2017/11/Summary-of-R-v-Powley.pdf>.

[7] Jean Teillet & Jason Madden “Manitoba Métis Federation v Canada (Attorney General): Understanding the Supreme Court of Canada’s Decision” (last visited 6 February 2020) online (pdf): Métis Nation of Alberta

, <www.albertametisgov.com/wp-content/uploads/2017/11/Summary-of-MMF-v-Canada.pdf>.

[8] Jason Madden et al, “Another Chapter in the Pursuit of Reconciliation and Redress: A Summary of Daniels v Canada at the Supreme Court of Canada (last visited 6 February 2020) online (pdf): Métis Nation of Alberta <www.albertametisgov.com/wp-content/uploads/2017/11/Summary-of-Daniels-v-Canada.pdf>.

[9] R v Powley, supra note 3.

[10] Manitoba Métis Federation Inc, supra note 4.

[11] Daniels, supra note 5.

[12] (14 June 2016), online (pdf): Manitoba Métis Federation <www.mmf.mb.ca/docs/isaac_report/isaac_report.pdf>.

[13] President Clément Chartier, “Métis Nation Welcomes Report of Ministerial Special Representative on Canada-Métis Nation Reconciliation” (21 July 2016), online: Métis Nation <www.metisnation.ca/index.php/news/metis-nation-welcomes-report-of-ministerial-special-representative-on-canada-metis-nation-reconciliation>.

[14] Ibid.

[15] Supra note 12.

[16] Justin Trudeau, Prime Minister of Canada, News Release, “The Prime Minister of Canada and President of the Métis National Council welcome the Signing of the Canada-Métis Nation Accord” (13 April 2017), online: <pm.gc.ca/en/news/news-releases/2017/04/13/prime-minister-canada-and-president-metis-national-council-welcome>.

[17] Saunders & Dubois, supra note 1 at 124-125.

[18] Ibid at 124-125.

[19] Ibid at 126.

[20] Ibid.

[21] Ibid at 125.

[22] Canada-Métis Nation Accord, (13 April 2017), online (pdf): Métis Nation <www.metisnation.ca/wp-content/uploads/2017/04/Canada-Métis-Nation-AccordEn.pdf>.

[23] Gloria Galloway, “Federal government signs first-ever Métis self-governance agreements” (27 June 2019), online: The Globe and Mail <www.theglobeandmail.com/politics/article-federal-government-signs-first-ever-metis-self-governance-agreements/>.

[24] Métis Government Recognition and Self-Government Agreement between Métis Nation of Alberta and Canada (unsigned), online (pdf): Métis Nation of Alberta <albertametis.com/wp-content/uploads/2019/06/2019-06-27-MNA-MGRSA-FINAL-to-be-posted-on-website.pdf>.

[25] Galloway, supra note 23.

[26] Ibid.

[27] Crown-Indigenous Relations and Northern Affairs, News Release, “Historic self-government agreements signed with the Métis Nation of Alberta, the Métis Nation of Ontario and the Métis Nation-Saskatchewan” (27 June 2019), online: Government of Canada <www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2019/06/historic-self-government-agreements-signed-with-the-metis-nation-of-alberta-the-metis-nation-of-ontario-and-the-metis-nation-saskatchewan.html>.

[28] Métis Nation of Alberta, (last visited 6 February 2020), online: <albertametis.com>.

[29] “Métis Governments Moving Forward” (17 January 2020), online: Métis Nation of Alberta <albertametis.com/2020/01/metis-governments-moving-forward/>.

[30] Ibid.

[31] Ibid.

[32] Ibid

[33] Joint Declaration: Métis Nation of Alberta Provincial Council, Métis Nation, Saskatchewan Provincial Métis Council, Provisional Council of the Métis Nation of Ontario, (16 January 2020), online: Métis Nation of Alberta <albertametis.com/wp-content/uploads/2020/01/JOINT-DECLARATION-MNA-MNS-MNO.pdf>.

[34] Resolution of Métis National Council: Métis Nation of Alberta Provincial Council, Métis Nation, Saskatchewan Provincial Métis Council, Provisional Council of the Métis Nation of Ontario, (16 January 2020), online: Métis Nation of Alberta <albertametis.com/wp-content/uploads/2020/01/MNC-RESOLUTION-by-MNA-MNS-MNO.pdf>.

Overview of the Métis Settlements Act and What it Means for Métis

Image by: The Alberta Native News

Tansi Nîtôtemtik,

The 1938 Métis Population Betterment Act was a provincial Act and the predecessor to the Métis Settlements Act (the “Act”).[1]^;[2];[3] The Betterment Act created Settlement Associations which set the foundation for self-government in the eight Métis communities.[4] These eight communities were “the only recognized Métis land base in Canada”[5] and was comprised of the following settlements:

1. Paddle Prairie
2. Peavine
3. Gift Lake
4. East Prairie
5. Buffalo Lake
6. Kikino
7. Elizabeth
8. Fishing Lake[6]

The purpose of the Métis Population Betterment Act was to “plot out lands for allocation to the Métis” and continue cooperation between the “Métis and Royal representatives toward the improvement of quality of life for the Métis.”[7]

Introduction of the Métis Settlements Act

In 1985, the “Alberta Legislature unanimously endorsed a resolution to transfer lands to the Métis Settlements and establish new legislation which provided Métis Settlements with greater local autonomy.”[8] In 1989, the Alberta-Métis Settlements Accord was signed. The Métis Settlements Act was introduced in 1990.[9] With the Act came the introduction of the Métis Settlements General Council (MSGC) which protects the interests of the eight Métis Settlements.[10] The MSGC is the “central governing authority of the Métis Settlements.”[11] It was established “to have a land-base in order to provide for the preservation and enhancement of Métis culture and identity, as well as to enable the Métis to attain self-government.”[12]

 

Why is the Métis Settlements Act Important?

The Métis Settlements Act allowed for the “legal transfer of title to Métis, local municipal and traditional style self-government, and establish[ed] eight settlement corporations and the Métis Settlements General Council as legal entities.”[13] This transfer of title provided Métis Settlements with “greater local autonomy” and the ability to self-govern.[14]

The Act also established the Métis Settlements Appeals Tribunal. This allows for disputes regarding membership, land use and resource matters on settlements to be dealt with formally.[15] Furthermore, the Act provided for joint management of “oil, gas and other subsurface resources on the settlements” with the province. Lastly, Métis settlements and interests became legislatively recognized and protected in the Alberta Constitution in 1990 as a result of the Métis Settlements Act.

Long-Term Governance

In 2013, the Premier of Alberta, the Minister of Indigenous Relations, and the President of the MSGC (created by the Métis Settlements Act) signed the Long-Term Governance and Funding Arrangements.[16] The 10-year arrangements provided “$85 million from Alberta and $28.5 million from the MSGC”[17] for initiatives dealing with:

• Strengthening the Settlements’ governance, accountability and sustainability
• Increasing education, employment and economic opportunities
• Improving infrastructure and essential services
• Creating safe and healthy communities, including dedicating an RCMP officer for each of the eight Métis Settlements
• Enhancing the productive relationship between the Government of Alberta and the Métis Settlements.[18]

The Métis Settlements Act has brought with it many changes in the relationship between Métis Settlements and the provincial government. The legal transfer of title has provided Métis with control over their land. This is particularly important to note when various project proposals envision the use of said lands. While Métis autonomy is not as prominent as it should be, the transfer of legal rights is a step in the right direction.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] An Act Respecting the Métis Population of the Province, SA 1938(2), c 6.

[2] René R Gadacz, “Métis Settlements” (18 December 2006, last edited 27 October 2014) Canadian Enclyclopedia, online: www.canadianencyclopedia.ca/en/article/metis-settlements> [Canadian Encyclopedia].

[3] Métis Settlements Act, RSA 2000, c M-14.

[4] Ibid.

[5] Walker, supra note 1.

[6] Canadian Encyclopedia, supra note 2.

[7] Collective Rights of the Métis, “Métis Population Betterment Act,” online: <www.meticollectiverightscassiy.weebly.com/metis-populaton-betterment-act.html/>.

[8] Government of Alberta, “About Métis Settlements,” online: www.alberta.ca/about-metis-settlements.aspx [Government of Alberta].

[9] The Canadian Encyclopedia, supra note 2.

[10] Government of Alberta, supra note 7.

[11] Métis Settlements of Alberta, online: <www.msgc.ca/about-us/>

[12] Ibid.

[13] Government of Alberta, supra note 7.

[14] Canadian Encyclopedia, supra note 2.

[15] Ibid.

[16] Government of Alberta, supra note 7..

[17] Ibid.

[18] Ibid.

The Principles of Métis Governance: Asserting the Right to Remain ka tipaymishooyahk (“We who own ourselves”)

Image from: Edmonton Journal

Tansi Nîtôtemtik,

Today we turn to discuss the principles underlying Métis governance and highlight how the interaction of these principles has supported the Métis Nations’ right to remain ka tipaymishooyahk (“We who own ourselves”). The Métis mobilized through political organization and its mechanisms in asserting this right and achieving self-determination and self-government.[1] The creation of local, provincial, and national organizations, and the accompanying governance structures stemming from these grassroots movements, has resulted in what has become collectively referred to as nootr goovarnimaan di Michif (“Our Métis government”).[2] Recently, Kelly Saunders and Janique Dubois have argued that the Métis governance structure and its adaptation over time demonstrates a commitment to five unifying principles for the Métis: freedom, kinship, democracy, the rule of law, and provisionality.[3]

Ki tipemishoonaan (“We Are Free”)

Freedom and autonomy are values that have been associated with the Métis from the beginning.[4] Alexander Ross, one of Canada’s earliest historians, noted in 1856, “[The Métis] cherish freedom as they cherish life.”[5] Freedom has both an individual dimension, rooted in the happiness and pride of each person, as well as a collective dimension, rooted in the ethos of kinship.[6] Safeguarding freedom from both perspectives has been and continues to be achieved through political action.[7] Freedom continues as a fundamental principle in present-day assertions of Métis governance, as exemplified in the constitutions of current Métis governing bodies, such as the Constitution of the Métis Nation British Columbia.[8] The Métis Nation of Alberta is currently in the process of drafting its constitution; you can follow its development here.[9]

Miyeu Waahkootoowin (“Being Related in a Good Way”)

The principle of kinship connection created by engaging in meaningful relationships with the collective is an expression of freedom.[10] The basic aim of kinship is to foster good relations in the pursuit of common goals.[11] Waahkootoowin also carries with it a social obligation that binds the Métis together, with the family unit at the heart of the kinship relations.[12] Family relationships were not always tied to bloodline relations, sometimes arising from the sharing of activities, such as fur trading.[13] Scholars have connected the Métis waahkootoowin with the Cree wahkohtowin,[14] which was previously covered in detail on this blog. To learn more about wahkohtowin, please see our blog posts from October of 2019 here.[15] Miyeu waahkootoowin continues through several avenues: by invocation in Métis ceremony and assembly; by informing governance activities; and by finding expression in Métis laws and practices.[16] The value of miyeu waahkootoowin to the Métis people was expressed well by President David Chartrand at the Manitoba Métis Federation Annual General Assembly in 2015. He wrote, “Strengthen the individual… You strengthen the family. Strengthen the family… You strengthen the community. Strengthen the community… You strengthen the nation.”[17] 

Ka Niikaaniichik (“Those Who Lead Us”)

Democracy is essential to the assertion of freedom and to fostering waahkootoowin. Saunders and Dubois identify three types of democratic processes used by the Métis in selecting political leadership: deliberative, direct, and representative.[18] Deliberative democracy occurred through the body of the Assembly, which acted as a vehicle for collective decision-making.[19] Chiefs were democratically elected, ensuring their legitimization and imbued their decision with binding power on the kinship groups subject to them.[20] Contemporary assemblies continue to be crucial for bringing Métis citizens together to express their views and propose ideas.[21] Direct democracy occurred through the means of the election process to select political leaders.[22] This form of democracy played an important role beginning with the early provisional governments.[23] It also historically occurred through the selection of captains during the buffalo hunt. Today, direct democracy through the election process remains the means of selecting leaders at local, regional and provincial levels.[24] Representative democracy occurred through the delegation of decision-making power to selected representatives.[25] Historically, representative democracy was used to determine council members, who were assigned responsibility for the management of daily affairs during the buffalo hunt.[26] Elected representatives continue to represent contemporary Métis citizens at many different levels, including at the community and provincial levels.[27] Regional representatives in turn make up the executive decision-making body of each respective provincial Métis government.[28] Together, the three forms of democracy enhance the political legitimacy of Métis governance practices and contribute to balancing a power among key components of Métis society.[29]

The Rule of Law in Lii Lway di Michif (“Métis Laws”)

Métis laws were an expression of Métis constitutionalism and outlined a “comprehensive system of rules, processes, and institutions by which the Métis agree[d] to live together.”[30] Early expressions of the law, such as the ‘Laws of the Prairie’ were not written but solidified through practice.[31] Later legal mechanisms demonstrate that the Métis situated their actions within the rule of law, “incorporating not only the laws passed by the provisional governments and councils in Manitoba and Saskatchewan but also the petitions, treaties, and resolutions that the Métis regularly engaged in as part of their political activities.[32] The conception of the rule of law that persists today is a conviction in Métis leaders of the responsibility for the welfare of others stemming from accountability within the collective.[33] The rule of law is currently upheld in Métis government through the following processes: the division of powers; ensuring Métis citizen participation in legislative affairs; and ensuring that provincially elected executive bodies exercise their responsibility according to the applicable bylaws and constitution.[34]

Aen Ishi Wiichayaamitooyahk (“How We Live Together”)

The process of forming governing bodies in response to specific events or needs, known as provisional governments, was seen first in the recurring buffalo hunts. The process of forming and disbanding forms of provisional government continued in response to the need for political mobilization as the Métis asserted and defended their right to self-government.[35] While the governments established in these circumstances were temporal in nature, Saunders and Dubois argue that provisionality is not a function of time but of purpose, with the ultimate purpose of the Métis Nation being self-determination.[36] Over time, the political tactics, governance structures and practices have changed to adapt to the needs of the new time and place, but they are linked to one another “across time and space through the commitment to maintain aen ishi wiichayaamitooyahk (how we live together)…”[37]

Taken together, the principles of freedom, kinship, democracy, rule of law, and provisionality form the foundation of Métis governance structures as they work together to protect what the Métis describe as ka ishi pimaatishiyaahk (“our way of life”).[38] The principles find continued expression as the Métis work towards the ultimate objective of self-determination and self-government.

Yours Truly,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Kelly Saunders & Janique Dubois, Métis Politics and Governance in Canada (Vancouver: UBC Press, 2019) at 37.

[2] Ibid at 149.

[3] Ibid at 37.

[4] Ibid at 39.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] See Métis Nation British Columbia, “Constitution” (revised September 2008), online (pdf): <www.metisportals.ca/cons/wp-content/uploads/2009/02/constitution_metis_nation_bc.pdf>  f

[9] “A Métis Nation of Alberta Constitution” (last visited 03 February 2020), online: Alberta Métis Government <www.albertametisgov.com/metis-nation-alberta-constitution/>.

[10] Supra note 1 at 42.

[11] Ibid at 43.

[12] Ibid at 42.

[13] Ibid.

[14] Brenda Macdougall, One of the Family: Métis Culture in Nineteenth-Century Northwestern Saskatchewan (Vancouver: UBC Press, 2010).

[15] See ReconciliAction YEG, beginning at “Wahkohtowin in Ceremony” (07 October 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/10/index.html>.

[16] Supra note 1 at 44.

[17] David Chartrand, President’s Report: 47^th MMF Annual General Assembly (Winnipeg: Manitoba Métis Federation, 2015) at 8, online (pdf): <www.mmf.mb.ca/docs/aga/President_Report_2015.pdf>.

[18] Supra note 1 at 45.

[19] Ibid.

[20] Ibid.

[21] Ibid at 46.

[22] Ibid at 47.

[23] Ibid.

[24] Kelly L Saunders, “No Other Weapon: Métis Political Organization and Governance in Canada” in Christopher Adams, Gregg Dahl & Ian Peach (eds) Métis in Canada: History, Identity, Law and Politics (Edmonton: University of Alberta Press, 2013) 339.

[25] Supra note 1 at 48.

[26] Ibid.

[27] Ibid at 50.

[28] Ibid.

[29] Ibid at 51-52.

[30] Ibid at 53.

[31] Ibid at 52.

[32] Ibid at 53.

[33] Ibid.

[34] Ibid at 55.

[35] Ibid at 57.

[36] Ibid.

[37] Ibid at 58.

[38] Ibid.

A Brief History of Métis Governance and Political Organization

Image by: Gérard DuBois

Tansi Nîtôtemtik,

Section 35(2) of the Constitution Act, 1982 recognizes the “aboriginal people of Canada” as being Indian, Inuit, and Métis peoples.[1] Since the emphasis of this year’s ReconciliAction YEG project is on Indigenous Governance, it is necessary and important to consider it from Inuit and Métis perspectives. Over the next two weeks we will discuss Métis and Inuit topics in governance. Today, we introduce Métis Governance through a brief history of Métis political organizing.

The Métis peoples are diverse, but unique Métis culture has arisen from European and Indigenous components. However, Métis culture is and always has been “more than the sum of its elements; it [is] an entirely distinct culture.”[2]

Shortly after people with mixed European-Indigenous ancestry arose, the first forms of Métis political organization formed. Métis families began organizing buffalo hunts in the late 1700s and “during these hunts, [the family units] would be transformed into hunting brigades led by the heads of each family unit.”[3] Laws were “adopted ‘for the general good’ of the community and typically forbade activities such as running of the buffalo before the general order had been giving, hunting on the Sabbath, and lagging behind the hunting brigades without the express permission of those in charge.”[4] While early Métis governance was centered on buffalo hunting, laws were also set in place for other important endeavours, like protecting the community.[5]

Late Nineteenth Century: Quest for Recognition

Métis people began to settle, including in the Red River settlement along the banks of the Red and Assiniboine rivers. At the same time, shortly after Confederation, the federal government sought to open the Prairies to European immigration. The federal government did not consult with the Métis on the intended incursions onto their land.[6]

In response, the Red River Métis “organized a common response with other residents” to combat incursion by the federal government.[7] Louis Riel headed this provisional government which “dispatched a delegation of Red River representatives to Ottawa to negotiate the terms of the area's entry into Canada” – this activism led to the creation of the province of Manitoba in 1870.[8] However, little of the land ended up in Métis hands and incursions by Canada led many Métis to leave the area.[9]

In 1884, Louis Riel went to Batoche, in present day Saskatchewan, to set up a provisional government for the Métis “and negotiate with the federal government.”[10] The federal government reacted with military force and the battles (known as the Northwest Rebellion) ended with Métis forces defeated and Louis Riel tried and hung for treason.[11]

After the Northwest Rebellion: Red Power and Métis Nationalism

Despite persecution and military defeat, Métis peoples continued to organize politically. In 1887, “a group of former supporters and allies of Riel formed the Union nationale métisse Saint-Joseph du Manitoba” which was dedicated to preserving Métis culture and traditions.[12] By the 1930s, provincial Métis organizations formed first in Alberta, and then in Saskatchewan and Manitoba.

By the 1960s, there were increased efforts at Indigenous activism, leading this period of time to be later known as the “red power” era. During this time, Ontario and British Columbia Métis organizations also formed.[13] In 1971, Métis peoples and non-status Indians collaborated to form the Native Council of Canada (NCC).[14] The NCC was influential in gaining constitutional recognition of Métis people through s 35 of the Constitution Act, 1982. Further, in 1983, the Métis National Council, the current Canada-wide Métis political organization, formed.[15]

Thus, Métis governance and political organization has existed as long as Métis people have existed. “Since the era of the buffalo hunt,” Métis leaders have created political organizations, and while the structure of these organizations have evolved, they remain influential.[16]

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Canada, Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, vol 4 (Ottawa: Supply and Services Canada, 1996) at 204 [RCAP].

[3] Kelly Saunders & Janique Dubois, Métis Politics and Governance in Canada (Vancouver: UBC Press, 2019) at 20 [Saunders & Dubois].

[4] Ibid.

[5] Ibid at 20-21.

[6] RCAP supra note 2 at 207.

[7] Ibid.

[8] Ibid at 207-208.

[9] Ibid at 210.

[10] Ibid at 211.

[11] Ibid at 212.

[12] Saunders & Dubois supra note 3 at 30.

[13] Ibid at 33.

[14] Ibid at 34.

[15] Ibid.

[16] Ibid at 35.

Spotlight: Institute on Governance

Image from https://iog.ca/services/indigenous-governance/ 

Tansi Nîtôtemtik,

 

The Institute on Governance (“IOG”) was established in 1990.[1] It is an “independent, Canada-based, not-for-profit public interest institution” that has “advanced better understanding and practice of good governance in Canada.”[2] Their goal is to “advance better governance in the public interest” by “exploring, developing and promoting the principles, standards and practices which underlie good governance in the public sphere.”[3] Not only has this organization had a significant impact in the Canadian context, it has had success in 35 other countries including Iraq, China and Botswana.[4]

Unique to this organization is their network of expertise. The Institute on Governance has a network of leaders versed on governance but in both private and public spheres, global expertise in government and Indigenous areas.[5] Such an expansive array of expertise allows public purpose organizations and non-profits to improve their governance. The IOG is able to go through policies, advise on and assess current governance practices.[6]

The team of consultants working for the IOG has “over 20 years experience exploring and developing innovative approaches to responsible and responsive governance and public sector leadership in Canada.”[7] The IOG works with a vast array of clients in Canada and abroad including, but not limited to: governments, communities, universities, and private and public organizations.[8] Some examples of clients who have used the IOG include: Health Canada, Global Affairs Canada, Indigenous and Norther Affairs Canada, Standards Council of Canada and many more.

The IOG has been a constant supporter in “supporting Indigenous governance, self-determination, community wellbeing, and renewed nation-to-nation relationships.”[9] The IOG has worked with numerous organizations such as the Fist Nations Health Authority in British Columbia, the First Nations Financial Management Board, and National Indigenous Organizations (NIOs) on the 2017 Nation-to-Nation dialogues.[10] In promoting and encouraging Indigenous governance, the IOG takes a “collaborative, multi-disciplinary approach to relationship-building, and supporting Indigenous-led paths to self-determination.”[11] This approach is to support Indigenous governance and move away from the Indian Act.[12]

Of particular note, the IOG and the First Nations Financial Management Board, along with input from a national Advisory Group of Indigenous and governance leaders, completed the “First Nations Governance Project’s Phase I Governance Report.[13] They recognized that there was a need for First Nations governance initiatives that are “grounded in UNDRIP and must reflect First Nations’ aspirations towards self-determination.”[14] Further to the Report was the creation of the “UNDRIP-responsive Self-Determination and Governance (SDG) Framework.”[15] This Framework “provide[d] support for the expectations of First Nations by recognizing that supporting communities in transitioning out of the Indian Act requires many things.[16]  The list includes, among other factors, the following:

• The advancement of a renewed relationship based on effective and meaningful Crown-Indigenous engagement principles.
• That all First Nations must be able to see themselves – including their unique cultural, historic and regional situations – in any self-determination and governance path.[17]

There is a need for education and access to information relating to Indigenous governance and this organization is working to help fill that gap. They are actively involved in helping a variety of bodies improve upon their governance practices. As this organization continues to expand its reach, it is our hope that Indigenous governance will be commonplace and in effect to its fullest potential.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Institute on Governance, “About the IOG,” online: <www.iog.ca/about/>.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Institute on Governance, “What we Do,” online: <www.iog.ca/about/what-we-do/>.

[6] Ibid.

[7] Institute on Governance, “Team,” online: <www.iog.ca/about/team/>.

[8] Ibid.

[9] Institute on Governance, “Indigenous Governance and Self-Determination,” online: <www.iog.ca/services/indigenous-governance/>.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Institute on Governance, “First Nations Governance Project,” online: <www.iog.ca/services/indigenous-governance/fmb-and-iog-release-the-first-nations-governance-phase-1-report/>.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

Questioning the Presumptions of Sovereignty in Canada

Tansi Nîtôtemtik,

“[H]ow did the Crown acquire absolute sovereignty over Indigenous peoples? Was it through surrender following a conquest? … Did the Indigenous peoples simply cede all their rights in perpetuity because they were… “uneducated savages”? This does not hold up to even the most minimal scrutiny…”

– Joshua Nichols

Over the last three weeks, we have provided an overview of the historical trajectory of the topic of Indigenous governance. In the next two weeks, we will turn to look at topics in Inuit and Métis governance. In our intro post, “Intro to Indigenous Governance: Sovereignty vs Self-Determination vs Self-Governance”^[1], we provided the basic idea behind each of the concepts of sovereignty, self-determination, and self-governance in order to lay the groundwork for our forthcoming discussions. We hope that over the last three weeks we have illustrated how the underlying beliefs behind these concepts have played a key role in Crown-Indigenous relations in the past and will continue to do so into the future as they are continuously navigated and redefined on the path to Reconciliation. As the years go on following the release of the TRC Report in 2015, Indigenous scholars are urging Canada to re-think presumptions regarding the constructs we use to define and limit Indigenous rights. In today’s post, we wrap up our historical review by both dialoguing with our intro post’s definition of sovereignty and highlighting how the University of Alberta Faculty of Law’s Joshua Nichols challenges the presumptions of Crown sovereignty in his article: “Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty”.^[2]

 

Three weeks ago, our intro post defined sovereignty as the natural or inherent right to “define, sustain, and perpetuate identities” and as an “absolute power over people, land, water, and natural resources.”^[3] As we have illustrated, early Crown-Indigenous relations demonstrated the Crown’s recognition of Indigenous sovereignty.^[4] Despite the promise of these early recognitions, it is now clear that the Crown never intended to recognize the existence of any independent or sovereign status of the “Indians” with whom they made treaties and agreements.^[5] In his article, Sui Generis Sovereignties, Joshua Nichols argues the theory of sovereignty in Canada is based on the Westphalian model which is that “absolute title to lands cannot exist at the same time in different persons or in different governments.”^[6] The presumption of the Westphalian model determined the bounds of “what is natural and obvious and separates that from what is untenable and inconceivable. This same line remains fixed within the Canadian jurisprudence on treaty interpretation.”^[7] On this basis, Nichols questions the presumption of Crown sovereignty and the ability of the Crown to assert the same over Indigenous Peoples in the first place.^[8] He suggests that Crown absolute sovereignty is a “legal fiction” which was “unilaterally imposed over a pre-existing system of divisible sovereignty” and which has resulted in judges reading legal documents on the “assumption that absolute and unquestionable sovereignty was always in place.”^[9] A contextual and historical inquiry calls into question this presumption and the ability of the Crown to assert sovereignty over Indigenous Peoples at all.^[10] Nichols calls on the Supreme Court of Canada to “fully and explicitly reject the continued use of the doctrine of discovery via its unilateral, unquestioning and absolute interpretation of section 91(24),” saying that the “court must face the fact that this provision cannot be read as an unquestionable grant of absolute sovereignty due to the simple fact that the imperial Crown could not give the dominion what it did not have.”^[11] Instead, it should be recognized that the Crown’s sovereignty is sui generis in nature and should be predicated on a “shared constitutional order that includes Aboriginal peoples as self-determining peoples.”^[12] Recognition of the Crown’s sui generis sovereignty includes at a minimum that “section 91(24) is interpreted as a “treaty power” that continues the pre-existing power-sharing relationship between the imperial Crown and Aboriginal peoples, and, second, that sections 25 and 35 of the Constitution Act, 1982 serve to extend clear jurisdictional lines into the Canadian constitutional order…”^[13]

This brief overview of Joshua Nichols’s article has sought to illustrate that while important progress has been made in recognizing and developing concepts around Indigenous sovereignty, self-determination, and self-governance, it is essential to also question the basic assumptions underlying these concepts in the first place.

Yours Truly,

Team ReconciliAction YEG

--- 

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] ReconciliAction YEG, “Intro to Indigenous Governance: Sovereignty vs Self-Determination vs Self-Governance” (20 January 2020), online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/intro-to-indigenous-governance-sovereignty-vs-self-determination-vs-self-governance.html>.

[2] Joshua Nichols, “Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty” in Oonagh E Fitzgerald, Valerie Hughes & Mark Jewett (eds) Reflections on Canada’s Past, Present and Future in International Law/Réflexions sur le passé; le présent et l’avenir du Canada en droit international (McGill-Queen’s University Press, CIGI Press, 2018) 131 [“Sui Generis Sovereignties”].

[3] Supra note 1.

[4] See ReconciliAction YEG, “The Royal Proclamation of 1763” (22 January 2020), online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/the-royal-proclamation-of-1763.html>; see also, ReconciliAction YEG, “Indigenous Sovereignty and the Treaties of Albany and Niagara”, online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/indigenous-sovereignty-and-the-treaties-of-albany-and-niagara.html>.

[5] Sui Generis Sovereignties, supra note 2 at 132.

[6] Ibid at 131.

[7] Ibid at 132.

[8] Ibid at 134-139.

[9] Ibid at 137.

[10] Ibid at 137-138.

[11] Ibid at 138.

[12] Ibid at 139.

[13] Nichols at 138-139.

Bill C-262 & Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples

Image from the Government of Canada 

Tansi Nîtôtemtik,

In 2015, NDP MP Romeo Saganash tabled Bill C-262 which would have required the federal government to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[1] It would have required the federal government to “take all measures necessary to ensure that the laws of Canada are in harmony with” UNDRIP. After years of discussion over the bill, it “stalled in the Senate and died on the order paper in June” 2019.[2] However, Saganash, a Cree man  from Waswanipi, believes that the fight for Indigenous rights is strengthening in Canada. He stated that he is “inspired and reassured by the broad representation from civil society in support of [the] bill.”[3]

While Bill C-262 has not been successful, the federal government has released 10 Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. These principles include:

1. The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government;
2. The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982;
3. The Government of Canada recognizes that the honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples;
4. The Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government;
5. The Government of Canada recognizes that treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect;
6. The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources;
7. The Government of Canada recognizes that respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations;
8. The Government of Canada recognizes that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development;
9. The Government of Canada recognizes that reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships; and
10. The Government of Canada recognizes that a distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented.[4]

In releasing these principles, the federal government has also outlined that they are “committed to achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, and Inuit-Crown relationship on [the] recognition of rights, respect, co-operation, and partnership as the foundation for transformative change.”[5] Further, they have outlined that the implementation of UNDRIP requires “transformative change in the Government’s relationship with Indigenous peoples.”[6] While these principles appear somewhat promising, it is also disheartening to see the how Bill C-262 has progressed over the past few years. The implementation of UNDRIP is essential to the success of reconciliation in Canada, and binding legislative measures to implement UNDRIP would show Canada’s commitment to reconciliation and promote a positive and constructive relationship between government and Indigenous Peoples.

 

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Justin Brake, “’Let us Rise with More Energy’: Saganash responds to Senate death of C-262 as Liberals promise, again, to legislate UNDRIP”, APTN News (24 June 2019), online: <https://aptnnews.ca/2019/06/24/let-us-rise-with-more-energy-saganash-responds-to-senate-death-of-c-262-as-liberals-promise-again-to-legislate-undrip/> [Justin Brake]; Yves Faguy, “Adopting UNDRIP into law”, CBA/ABC National (15 January 2020), online: <https://www.nationalmagazine.ca/en-ca/articles/cba-influence/resolutions/2020/adopting-undrip-into-law> [Yves Faguy].

[2] Yves Faguy, ibid; Parliament of Canada, “Bill C-262”, LEGISinfo, online:  <https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=8160636&View=0>; Justin Brake, ibid.

[3] Justin Brake, ibid.

[4] Department of Justice Canada, “Principles respecting the Government of Canada’s relationship with Indigenous peoples” Government of Canada, online: <https://www.justice.gc.ca/eng/csj-sjc/principles-principes.html> [Department of Justice Canada].

[5] Ibid.

[6] Ibid.

Asserting the Right to Governance Through Negotiated Agreements

Tansi Nîtôtemtik,

“[The Nisga’a Agreement] is a triumph because, under the Treaty, we will be allowed to make our own mistakes, to savor our own victories, to stand on our own feet once again.”

– Chief Gosnell to the BC Legislature, December 2, 1998.

Asserting the right to self-governance through litigation has been “very ineffective” for Canada’s Indigenous nations.[1] In cases such as R. v. Pamajewon and Delgamuukw v. British Columbia, the courts have shown that they will “closely and carefully scrutinize Aboriginal expressions of governance, while allowing broad assertions of Crown sovereignty to go unchallenged.”[2] Ultimately, Canadian jurisprudence “has defined Aboriginal powers of governance in a narrower manner than either historic practice may warrant or Aboriginal people may desire. This reduction in Aboriginal rights to governance simultaneously vests ever-widening powers of governance in non-Aboriginal institutions.”[3]

In practice, self-governing agreements (which are deemed to be ‘modern treaties’) are the most productive way for Indigenous nations to assert their right to governance. The process of negotiation for governance agreements is, unfortunately, very slow and arduous. Only a handful of agreements have been completed between the federal government, provincial or territorial governments, and First Nations. These agreements have largely occurred in BC and the North, where most of the land is unceded (i.e., the possession and control over the land was never relinquished). In this post, we will give a quick introduction to two governance agreements: the Nisga’a Final Agreement, and the Maa-nulth First Nations Final Agreement.

Nisga’a Final Agreement

The Nisga’a Final Agreement was negotiated between the government of Canada, the government of BC, and the Nisga’a First Nation. It stands as the first modern-day treaty made in BC, and came into effect May 11, 2000.

Under the Final Agreement, the Nisga’a Nation is no longer governed by the Indian Act.[4] Instead, the Nisga’a are to be guided by their own laws, including their ayuukhl, which is defined by the treaty as “the traditional laws and practices of the Nisga’a Nation.”[5] In fact, the Agreement specifically establishes Nisga’a courts, which will determine the meaning of the ayuukhl in the modern context as they are applied to parliamentary procedure, statutory laws, and as “common law” principles.[6]

The Nisga’a Government, however, has no exclusive jurisdiction under the Agreement. Rather, the authority of the Nisga’a runs concurrently with federal or provincial jurisdiction. That said, Nisga’a laws will generally prevail “in relation to matters that are internal to the Nisga’a Nation, integral to their distinct culture or essential to the operation of their government or the exercise of their other treaty rights.”[7]

Altogether, the comprehensive treaty “covers such diverse issues as land titles, minerals, water, forests, fisheries, wildlife, governance, the administration of justice, fiscal relations (including taxation), cultural property, and dispute resolution.”[8] Moreover, the Treaty provides for “collective Nisga’a ownership of approx. 2,000 square kilometres of land in the Nass Valley watershed in northwestern British Columbia.”[9]

The Nisga’a Final Agreement can be accessed here.[10]

Maa-nulth First Nations Final Agreement

The Maa-nulth First Nations Final Agreement stands as Vancouver Island’s first modern-day treaty, and was the first multi-nation treaty made under the BC Treaty Commission Process.[11] The Agreement is between the government of Canada, British Columbia, and 5 First Nations located along the West coast of Vancouver Island: the Huu-ay-aht First Nation, the Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nation, the Toquaht First Nation, the Uchucklesaht First Nation, and the Yuułuʔiłʔath First Nation. The Agreement came into effect April 1, 2011.

As with the Nisga’a Agreement, the five Nations to the Maa-nulth Agreement are no longer governed as bands under the Indian Act, but rather act under their own independent governments, with full ownership and jurisdiction over their own lands. The Huu-ay-aht First Nation, for instance, “has full ownership and jurisdiction over more than 8,2000 hectares of land within [their] territories [around Berkley Sound], and continues to have rights throughout [their] ḥahuułi [the lands and waters making up their traditional territories].”[12]

Notably, the Treaty grants the democratically elected governments of the five Nations the powers to make laws, manage lands and resources, protect and enhance culture, deliver programs and services, and collect taxes.[13]

The Maa-nulth First Nations Final Agreement can be accessed here.[14]

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] John J. Borrows and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th ed, (Toronto: LexisNexis, 2018) at 63.

[2] Ibid at 54.

[3] Ibid.

[4] Douglas Sanders, “We Intend to Live Here Forever: A Primer on the Nisga’a Treaty” in Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th edition, eds. John J. Borrows and Leonard I. Rotman (Toronto: LexisNexis, 2018) 74-75 at 74.

[5] Borrows and Rotman, supra note 1 at 68.

[6] Ibid.

[7] Ibid at 69.

[8] Ibid at 68.

[9] Ibid.

[10] “Nisga’a Nation”, Government of British Columbia, online: <https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/nisga-a-lisims-government>.

[11] “Maa-nulth First Nations Final Agreement Implementation: Report 2013-2014”, Government of Canada, online: <https://www.rcaanc-cirnac.gc.ca/eng/1494511760118/1542997086421>.

[12] “Who We Are”, Huu-ay-aht First Nations, online: <https://huuayaht.org/about/who-we-are/>.

[13] “Treaty Implementation”, Huu-ay-aht First Nations, online: <https://huuayaht.org/treaty-implementation/>.

[14] “Maa-nulth First Nations”, Government of British Columbia, online: <https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/maa-nulth-first-nations>.

Challenges and Opportunities of Self-Government Agreements for Indigenous Communities

Image: APTN News <aptnnews.ca/2019/06/27/three-metis-nations-sign-historic-self-government-agreements-in-ottawa/>

 

Tansi Nîtôtemtik,

Indigenous governance looks different today than when the Constitution Act, 1982 was adopted. Included in the Act is section 35, a constitutional acknowledgment that “existing aboriginal and treaty rights… are hereby recognized and affirmed.”[1] It is important to note that section 35 only affirms rights that were in existence prior to 1982 – however, since this time there have been regular efforts between Indigenous nations and the federal government to negotiate self-government agreements.

Negotiated agreements allow Indigenous communities to make laws in various areas, including: “social and economic development, education, health, lands, and more.”[2] These agreements can be comprehensive or they can be “sectoral agreements in education, health, resource management, etc.”[3] Self-government agreements, then, are broader than modern treaties and not all self-government agreements are incorporated in modern treaties. A noteworthy example of a self-government agreement included in a modern treaty is the 1999 Nisga’a Final Agreement, which will be discussed in tomorrow’s post.

Currently, there are 25 standing self-government agreements between the federal government and 43 Indigenous communities; there are also approximately “50 self-government negotiation tables across the country.”[4] While negotiations are ongoing in some communities, given the strained relationship between Indigenous peoples and the federal government there can be skepticism about negotiating agreements. Thus, the agreements present challenges and opportunities for Indigenous communities looking for their governance rights to be recognized.

Challenges of Self-Government Agreements for Indigenous Communities

A primary concern with negotiated agreements is that it will require Indigenous nations to give up claims of Aboriginal title. According to Cree (nêhiyaw) lawyer Sylvia McAdam, self-government agreements require foregoing future Aboriginal rights claims in exchange for a potential agreement.[5] There is a concern that self-government agreements “relegate Indigenous nations” to municipal status and thus deny the inherent nature of self-government claims.[6]

A related concern is that negotiations carry too many emotional and tangible burdens for community members to accept. Delays and lengthy negotiations periods can make the burdens worse. The late Arthur Manuel, of the Neskonlith Indian Band in British Columbia, and Grand Chief Ronald Derrickson, of the Westbank First Nation in British Columbia, believe that tangible burdens can lead the negotiations to go “on and on and never bear fruit.”[7] Also, the substantial cost of negotiation fees has been criticized by Manuel and Grand Chief Derrickson as being short-sighted; rather, the funds should go to other more important initiatives, such as measures to reduce poverty.[8]

Opportunities of Self-Government Agreements for Indigenous Communities

However, there are positive aspects of negotiating self-government for Indigenous peoples. The agreements can allow Indigenous communities to control on the ground areas of cultural significance, including: social programs, health, and education. Negotiated agreements can also bring economic opportunities.

McAdam points to the Muskeg Lake Cree Nation in Saskatchewan as an economic success story. The Nation used a self-government agreement “to develop [an] urban reserve” in Saskatoon where they built successful business enterprises.[9] Some of the successful business ventures include: Muskeg Property Management Inc.; Cree Way Gas Ltd.; Cree Investments; and Dakota Dunes Golf Links LP.[10] This story is indicative of the power of economic and cultural self-determination that self-governance can bring.

Thus, since the Constitution Act, 1982 included some protection for Aboriginal rights in Canada’s Constitution, Indigenous communities and the federal government have been engaging in negotiations for self-government agreements. Indigenous communities looking to negotiate such agreements will look to the individualized challenges and opportunities that come from self-government negotiations.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Crown-Indigenous Relations and Northern Affairs Canada, “Self-government” (12 July 2018), online: Government of Canada <https://www.rcaanc-cirnac.gc.ca/eng/1100100032275/1529354547314> [CIRNA].

[3] John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5th ed (Toronto: LexisNexis, 2018) at 63.

[4] CIRNA supra note 2.

[5] Sylvia McAdam (Saysewahum), Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems (Saskatoon: Purich Publishing Ltd, 2015) at 74 [McAdam].

[6] Ibid at 75.

[7] Arthur Manuel & Grand Chief Ronald Derrickson, The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Ltd, 2017) at 114.

[8] Ibid.

[9] McAdam supra note 5 at 73-74.

[10] Ibid.