First Nations suit opens the door to dialogue
The relationship between the Crown and the First Nations is unique and complicated. Often, the federal government is in a conflict of interest in its dealings with First Nations
The relationship is one of a fiduciary trust. In other words, the Crown must administer First Nations lands and property in their best interest. The principle behind this relationship is that First Nations are protected from the government of the day reneging on the treaty relationship. If the treaty is breached the honour of the Crown is at stake.
It’s a special relationship and while on the surface it may appear to be the relationship between a guardian and a child, it has far-reaching implications. Today treaty and aboriginal rights are recognized in the Constitution and federal and provincial legislation must respect this fact.
This week the Onion Lake and Poundmaker First Nations launched a suit on behalf of 72 First Nations in Western Canada alleging the federal government had breached its obligation to protect the interest of First Nations when it came to the extraction of oil and gas beneath their lands.
The two First Nations are alleging that over the years about $3 billion in resource revenue has been drained away from pools of oil and gas under First Nations land.
Historically, the Department of Indian Affairs has been a terrible trustee and the result is the sorry state of our land revenue and collective wealth. If the land and revenue had been properly administered we would see a much different set of circumstances for those First Nations with oil and gas resources.
Under the Harper government, the legal bill for the Department of Aboriginal Affairs ballooned to more than $100 million per year, which is the highest legal costs for any federal department, including the Canada Revenue Agency.
Whenever the government faced legal action, First Nations contended with a legal battery from the Department of Justice that delayed and fought every move they made. It took the First Nations Child and Family Caring Society nine years to get a ruling from the Human Rights Tribunal. Seven years were spent fighting Justice Department lawyers’ delaying tactics and legal challenges at every turn. Finally, when the tribunal got to hear the case it became apparent that the federal government had no defence. It was, in fact, practising racial discrimination by underfunding First Nations child welfare.
The most disgusting example I have found is the case of a residential school survivor who was raped while attending Grade 2 at St Michael’s residential school in Port Alberni, B.C. Federal Justice lawyers argued the place of the attack didn’t qualify as a residential school because it was administered by a different branch of the Department of Indian Affairs. The residential school branch paid for the staff at the residence while the day school branch paid for the staff at the school.
The issue of the sexual assault was never addressed. It was generally agreed that it was a fact. The rejection of the claim was based on the location of the assault — if it didn’t occur in the actual residential school, it was inadmissible. A person’s life may have been ruined, but the lawyers were able to weasel out on a technicality.
The irony is that while the government may have been able to win the “small” cases, it tended to lose the big ones. Case after case regarding jurisdiction, treaty rights, resource development and land claims were settled by the Supreme Court in favour of First Nations.
The Harper government had no stated aboriginal policy; it simply wanted to keep the lid on and appeal to its political base.
Now things are supposed to have changed. The case brought forward by the Onion Lake and Poundmaker First Nations is a good place to start. Rather than go to court the government should open the door to negotiation. An independent consultant should determine the extent of the gas and oil that was bled off our lands.
Negotiation can be a winwin exercise; court is winner take all. A fiduciary trustee conducts its actions in the client’s best interests and negotiation is key in carrying out that trust.