Court decision upsets relations

Chief questions if Chippewas of the Thames have any rights

I write on behalf of my First Nation in relation to the recent decision from the Supreme Court of Canada. Chippewas of the Thames First Nation vs. Enbridge Pipelines Inc., 2017 SCC 41, which significantly impacts the Chippewas of the Thames First Nation and its members. As you may expect the decision has not been well received and leaves our members questioning the meaning of an ongoing nation-to-nation relationship with the Canadian government.

Though the National Energy Board failed to fully recognize and respect our Aboriginal and treaty rights, the Supreme Court upheld the NEB process nonetheless. The question the court failed to address is what recourse does our nation have to protect its rights going forward? What if a tribunal, such as the NEB, improperly addresses or fails to recognize an Aboriginal right with no Crown oversight. As a final decision maker what recourse would a First Nation have to then protect its rights? A decision from the NEB can effectively extinguish an Aboriginal and/or treaty right.

It is clear the courts are not prepared to protect our constitutionally entrenched rights. And now we must question what the government is prepared to do? Offering our nation an opportunity to participate in fundamentally inadequate consultations does not preserve the “honour of the Crown” and completely ignores our historical treaty relationship.

The decision of the Supreme Court has an immediate and chilling effect on our nation. We are currently inundated with applications on numerous resource development projects. We are most concerned that the Crown will fully adopt the reasoning of the Supreme Court and completely rely on any and all regulatory processes to satisfy its duty to consult. Such a result is not acceptable.

The Supreme Court’s ruling allows the Canadian government to delegate a nation-to-nation relationship to resource companies who are now empowered to determine the potential impacts of our Nation’s constitutionally protected rights without any direct Crown involvement. This is extremely troublesome and was not the intention of our people when we agreed to share in the protection and management of our land and resources as set out in our treaties including the Longwoods Treaty of 1822; the London Township Treaty of 1796; the Sombra Treaty of 1796; Treaty #29 of 1827; and the McKee Treaty of 1790.

Justice Minister and Attorney General, Jody Wilson-Raybould, recently released the Government of Canada’s 10 principles to assist in achieving reconciliation with Indigenous peoples through a “renewed, nation to nation, government to government, and Inuit-Crown relationship based on recognition of rights, respect, co-operation and partnership.” Specifically, Canada stated, “Canada’s constitutional and legal order recognizes the reality that Indigenous peoples’ ancestors owned and governed the lands which now constitute Canada prior to the Crown’s assertion of sovereignty. All of Canada’s relationships with Indigenous peoples are based on recognition of this fact and supported by the recognition of Indigenous title and rights, as well as the negotiation and implementation of pre- Confederation, historic, and modern treaties.

This principle is intended to honour historic treaties as frameworks for living together, including the modern expression of these relationships. In accordance with the Royal Proclamation of 1763, and the accompanying Treaty at Niagara, 1764, many Indigenous nations and the Crown historically relied on treaties for mutual recognition and respect to frame their relationships. The treaty relationship between the Chippewas Nation and the Crown is a foundation for ongoing co-operation and partnership. The spirit and intent of both Indigenous and Crown parties to treaties, as reflected in oral and written histories, must inform constructive partnerships, based on the recognition of rights, that support full and timely treaty implementation.

To protect our rights and way of life the Chippewas of the Thames have developed our own consultation law (Deshkan Ziibiing/Chippewas of the Thames First Nation Wiindmaagewin), which is now being enforced within our traditional territory. Our own consultation law will now be provided to any and all developers operating or intending to operate within our traditional territory. Further to the Canadian government’s guiding principles our Nation will be asserting our own self-determination with respect to consultation within our territory.

Meaningful engagement with our nation includes securing our free, prior, and informed consent when any government proposes to take actions which impact our rights, including our lands, territories and resources. It is through the assertion and enforcement of our own laws that we can guarantee our lands and territory are properly protected for the enjoyment of future generations.

Myeengun Henry is Chief of the Chippewas of the Thames First Nation