Govern­ment must rec­og­nize treaty rights

Saskatoon StarPhoenix - - OPINION - DOUG CUTHAND

In 1982, when sec­tion 35 was placed in the Cana­dian con­sti­tu­tion, the feel­ing in In­dian Coun­try was that it gave us the right to go to court.

Sec­tion 35 is the fa­mous sec­tion that rec­og­nizes and af­firms ex­ist­ing treaty and Abo­rig­i­nal rights. But that’s all it says. Our rights have not been de­fined and in­stead First Na­tions have been go­ing to court and win­ning cases that are defin­ing the scope of our ju­ris­dic­tion and treaty rights.

But sadly it’s a long, drawn-out, costly process, fraught with dan­ger. That dan­ger was felt this week when the Mikisew Cree from Al­berta ap­pealed their case to the Supreme Court.

The case be­gan in re­sponse to the om­nibus bill that the Harper govern­ment put in place in 2012. These bud­get im­ple­men­ta­tion bills were an af­front to democ­racy be­cause they were more than 400 pages long and made sweep­ing changes. Bill C-38, for ex­am­ple, abol­ished 74 pieces of leg­is­la­tion alone.

This was also the gen­e­sis of the Idle No More move­ment. Alarm bells were go­ing off all over In­dian Coun­try and the peo­ple took their con­cern to the streets and shop­ping malls across Canada.

The Mikisew Cree de­cided to take the case to the courts, stat­ing that the Harper govern­ment breached its duty to con­sult when it pre­sented bills C-38 and C-45 that in­cluded en­vi­ron­men­tal leg­is­la­tion that the Cree felt breached the govern­ment’s duty to con­sult.

The case was ruled in the Cree’s favour in fed­eral court but over­turned in the court of ap­peal — and now, the Supreme Court has up­held the ap­peal court’s de­ci­sion.

The Supreme Court up­held the lower court’s rul­ing that the govern­ment doesn’t have a le­gal duty to con­sult In­dige­nous groups when de­vel­op­ing leg­is­la­tion that might im­pact treaty and Abo­rig­i­nal rights.

The news me­dia has framed this de­ci­sion as a set­back for First Na­tions and, while it wasn’t the de­ci­sion we wanted, the rul­ing doesn’t re­ally change any­thing. We never had a le­gal right to be con­sulted when the fed­eral govern­ment was draft­ing leg­is­la­tion.

How­ever, gov­ern­ments have a po­lit­i­cal and moral re­spon­si­bil­ity to con­sult with First Na­tions when de­vel­op­ing leg­is­la­tion that has the po­ten­tial to have a neg­a­tive af­fect on our treaty and Abo­rig­i­nal rights. Should the fed­eral and pro­vin­cial gov­ern­ments ig­nore our rights, it will be at their peril. They will be­come em­broiled in lengthy and ex­pen­sive court ac­tions where they can’t con­trol the out­come.

The Supreme Court pre­vi­ously ruled a duty to con­sult ex­ists when a ma­jor project is planned; Abo­rig­i­nal peo­ple must have ad­e­quate con­sul­ta­tion and, where pos­si­ble, be ac­com­mo­dated.

In the case of the Trans Moun­tain pipe­line, the fed­eral court ruled that In­dige­nous peo­ple were not con­sulted ad­e­quately and the project has been put on pause.

The Supreme Court also up­held the con­sti­tu­tional prac­tice of up­hold­ing the hon­our of the Crown. This im­por­tant prin­ci­ple is a lit­tle­known prac­tice that ex­ists in the recog­ni­tion and im­ple­men­ta­tion of our treaty rights.

The prin­ci­ple of the hon­our of the Crown is that any agree­ment con­ducted in the name of the Crown must not be­smirch the Sovereign’s good name. The Supreme Court has rec­og­nized this prin­ci­ple pre­vi­ously rul­ing that treaties must be in­ter­preted gen­er­ously and where am­bi­gu­ity ex­ists must be in­ter­preted in the favour of the In­dige­nous party.

This is­sue is not over. The root of the prob­lem ex­ists with the fact that the fed­eral and pro­vin­cial gov­ern­ments refuse to rec­og­nize First Na­tions govern­ment as a third form of govern­ment in Canada. So far they are un­will­ing to share power and re­sources with First Na­tions and con­tinue the colo­nial re­la­tion­ship em­bod­ied in the In­dian Act.

Ac­cord­ing to the treaties and our Abo­rig­i­nal rights, we main­tained the ca­pac­ity to gov­ern our­selves. In Canada cur­rently, we have two forms of govern­ment out­lined in the Bri­tish North Amer­ica Act. Sec­tion 91 and 92 out­line the ar­eas of re­spon­si­bil­ity of the fed­eral govern­ment and the prov­inces.

First Na­tions govern­ment ex­isted prior to Con­fed­er­a­tion so we have all the re­spon­si­bil­i­ties of the prov­inces and we can pick and choose fed­eral re­spon­si­bil­i­ties that are to our ad­van­tage.

This will take us a long way past a Supreme Court de­ci­sion that tried to de­fine the scope of the power of our First Na­tions gov­ern­ments.

Comments

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.