Court decision a key recognition of treaty rights

It’s been described as a win for the environment, or as a blow to the economy. In the end, the B.C. Federal Court of Appeal couldn’t ignore Section 35 of the Canadian Constitution.

Section 35 is the clause that recognizes and affirms treaty and Aboriginal rights. This section is becoming increasingly important when it comes to resource development. It may well be the way out of our impoverished position within Canada and place us on an even playing field with the provinces.

Several First Nations launched a case calling for a judicial review of the federal process to proceed with the Trans Mountain pipeline that transports Alberta crude oil to the west coast. They were later joined by the cities of Burnaby and Vancouver as well as the government of British Columbia.

The court ruled that the federal government failed in its constitutional duty to consult and “engage in a meaningful two-way dialogue” with the affected First Nations.

Saskatchewan Premier Scott Moe and Alberta Premier Rachel Notley stated that they want the case appealed or legislation passed that would push the project forward. The opposition parties blamed the incumbent governments. Federally, the Liberals blamed the Conservatives while the Conservatives heaped scorn on the Liberals. Notley withdrew Alberta from the federal climate change plan and business leaders fretted that this placed Canada in a bad light globally.

They are treating the issue as if it was a bit of bad luck on the part of the Court of Appeal and the Supreme Court will make everything right. Failing that, they will do what governments have done since Canada became a country: They will push ahead with their plans in the face of First Nations opposition or legal status and use their legislative power as the hammer.

This is not a partisan issue. It’s a clear statement that no government, federal or provincial, can forge ahead without the support and involvement of the First Nations.

This whole exercise shows how far apart the settler governments were from the First Nations. We have a series of Supreme Court decisions that recognize First Nations’ title to the land in the absence of treaties. We also have cases that recognize First Nations government and sovereignty and demand that First Nations be meaningfully consulted and accommodated.

All this is once again being overlooked and the federal and provincial governments have dismissed First Nations governments and our ownership of the land and its resources. In the process, they are paying a serious price.

“Resources” in this case not only includes hydrocarbons and minerals and renewable resources such as forest products; it also includes lakes and rivers, including salmon and other fish stocks. It includes the resources of the ocean, including the pods of endangered killer whales.

Our definition of resources is not a commercial one like the settler governments’ definition. We regard the land and its resources as a gift from the Creator and we are a part of it. We don’t have dominion over the land as described in the Bible; we exist among the gifts from the Creator.

This court decision and the resulting fallout may well be a turning point in Canada-First Nations relations. From now on, consultation must be meaningful, not a sales job like the Harper government saw it, or an exercise with a foregone conclusion, as the Trudeau government treated it. The days of being pushed to the sidelines or having to settle for beads and trinkets are gone.

The sun set on the British Empire years ago, and now Canada must realize that the sun has set on Canada’s residual colonial attitude toward First Nations. Future resource projects across the country should have resource revenue sharing agreements along with employment and contractual arrangements.

We are negotiating from a position of strength and we should take advantage of it.

First Nations across Indian country are in support of the British Columbia First Nations and their stand. As a member of a First Nation with oil resources, I want to see us get a world price for our oil, but I realize the stakes are higher for our cousins in British Columbia.

If the Trans Mountain pipeline gets built, it will only be done with the informed consent of the First Nations peoples.