Total disregard for First Nations' rights
New Saskatchewan and Alberta bills a power grab that ignore jurisdiction
The Alberta sovereignty act and the Saskatchewan First legislation illustrate how little the two provincial governments know or care about First Nations and our legal place within Confederation.
Both pieces of legislation are political documents that either ignore or gloss over the Canadian constitution, the British North America Act and the relationship that exists with the First Nations through treaty.
Both Alberta and Saskatchewan First Nations political bodies have expressed their opposition to the legislation and this week a resolution was passed at the annual chiefs' meeting in Ottawa. The emergency resolution objected to the two acts, further stating that they should not be amended but rather simply withdrawn.
In her response to concerns from First Nations leaders that the Saskatchewan First Act violated treaty rights, Attorney General Bronwyn Eyre was both arrogant and dismissive.
“Section 35 of the Constitution guarantees treaty rights,” she said. “It guarantees duty to consult. Nothing in this act takes away from that in any way.”
It was an interesting comment since she pointed out that the act guaranteed the duty to consult, but the government failed to consult when it drafted the original bill.
The First Nations' relationship with Canada was established through the Crown. The Royal Proclamation of 1763 serves as the template for treaty making and the recognition that the original title to the land rests with the Indigenous people.
This proclamation led to the treaty making process and the recognition that Indigenous lands and their people are under the jurisdiction of the federal government.
The Canadian constitution section 35 recognizes and affirms existing treaty and Aboriginal rights. Treaty rights outline our relationship with the Crown, and both the federal and provincial governments are duly bound to recognize the agreements.
Aboriginal rights are our rights. What was not discussed in the treaties remains with us. This includes, but is not limited to, our right to self-government, our languages, traditions, culture and spirituality.
Under section 35, the First Nations are a third form of government within Canadian Confederation and are able to pick and choose which parts of section 92 of the BNA act we wish to administer. Section 92 outlines the jurisdiction of the provinces.
The treaties call for the sharing of the land. The treaties only mention that the land is to be opened for settlement. Nowhere is there a mention of the natural resources, either renewable or non-renewable.
The federal and provincial governments simply assumed that they had the right. Contract law is clear that if something is not mentioned in an agreement, it is not part of the agreement.
Canada has also adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This important document recognizes the rights that Indigenous people have to the land and resources.
Article 26 states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired,” and it directs states to give legal recognition to these territories.
The declaration does not override the rights of Indigenous peoples contained in their treaties and agreements with individual states, and it commands these states to observe and enforce the agreements.
UNDRIP has been adopted federally. It's the kind of progressive document that the Alberta government might use as an example of a federal imposition. Alberta Premier Danielle Smith is spoiling for a fight with Ottawa that she can take into the spring election. We just might find ourselves in the crosshairs.
Make no mistake about it, these two bills are a power grab by the provinces. Neither recognizes First Nations' jurisdiction and our rights. They want to extend their jurisdiction at the cost of reducing or ignoring First Nations and federal jurisdiction.
The Alberta act is the most onerous of the two because it openly defies federal legislation. Since Premier Scott Moe never saw a jab at the federal Liberals he didn't like, we can expect some companion legislation or an amendment to ignore federal legislation.
This legislation should serve as a wake-up call to our leadership. Our chiefs have been mired in administration and the treaty agenda has suffered. This is a good time to stand up in opposition to this attack on our jurisdiction. The Saskatchewan First legislation should be withdrawn.