Omnibus bills ran roughshod over treaty rights

Lack of consultation spurred Idle No More movement

The Harper government was famous for omnibus bills. These undemocratic pieces of legislation were often more than 400 pages long and amended numerous unrelated pieces of legislation. These monstrosities were pushed through Parliament despite opposition complaints.

In March 2012 the government introduced a budget omnibus bill C-45 that amended 64 acts or regulations including the Indian Act, the Navigation Protection Act (former Navigable Waters Protection Act) and the Environmental Assessment Act.

First Nations were not consulted even though the legislation had a direct effect on First Nations’ treaty and Aboriginal rights. As a result, four women in Saskatchewan organized an event to discuss the fallout from Bill C-45. Jessica Gordon, Sheelah McLean, Sylvia McAdam and Nina Wilson were concerned the bill would erode treaty and Aboriginal rights.

This led to the formation of the Idle No More movement; demonstrations and round dances were held across Canada. It became obvious to those in power that Indigenous people were fighting back, and things were changing.

The legal process moves much slower, and this week the Mikisew Cree band in Alberta brought its case to the Supreme Court of Canada. The Mikisew Cree are seeking a judicial review of the changes in the omnibus bills that affect treaty rights.

This is an interesting case with the potential to trigger a change in how legislation and governance are created and conducted in Canada.

The Mikisew Cree maintain that legislative changes in the omnibus bills were put forward without any consultation with them, in spite of the fact that the changes will alter their treaty rights to hunt, fish and travel freely on the land.

The cutting back of environmental regulations is seen to have a negative effect on the land and our access to fish and game. There was no consultation with the First Nations and the impact on our treaty rights was never considered.

The case revolves around two main areas of First Nations constitutional rights. Our treaty rights are protected by Section 35 of the Canadian constitution, which affirms both treaty and Aboriginal rights. First, treaty rights are specific rights that are spelled out and signed by both the government and First Nations. Second, the right to govern ourselves is an Aboriginal right that was not extinguished by treaty.

When our leaders signed treaties, there were areas that were not discussed. These areas were not considered important by the treaty commissioners, but they are fundamental to our relationship with Canada.

For a group to be recognized as a party to a treaty between two nations, our leaders had to have legal standing. The treaty commissioner and the government of Canada recognized our chiefs as the legitimate leaders of their people and both the chiefs and their headmen signed the treaties, turning vast tracts of land over to the Crown.

The other rights we maintained for ourselves were the rights to our culture, language and religion. Later departmental regulations would implement the boarding schools. The rights and areas of jurisdiction that were not part of the treaty process were our right to govern ourselves, our culture, language and religion. Later the Indian Act and departmental regulations would remove any rights to self-government, outlaw our religion and attempt to destroy our language and culture. Today we realize that this was illegal, and they were rights over which only we had jurisdiction.

I recall when Section 35 was negotiated to be part of the Canadian constitution. The treaty and Aboriginal rights were not defined and remained so after three first ministers’ meetings. We realized that we had obtained the right to go to court. Through the court process our rights would be defined and become part of the body of law that rules government interactions.

Bill Gallagher’s book, Resource Rulers, documents the rise of First Nations jurisdiction. By his count, we have won more than 250 court cases linked to treaty rights and jurisdiction.

The Mikisew Cree case might well be the next success and move our people even further ahead in gaining recognition of our self-government and treaty rights.