Canada’s high court deals blow to treaty rights

The Supreme Court of Canada ruled Oct. 11 that the federal government does not have a responsibility to consult with First Nations before introducing legislation, even in cases when it would impact their lands and livelihood. The 7-2 ruling in Chief Steve Courtoreille et al vs Governor in Council et al ends a challenge by the Mikisew Cree First Nation of Alberta to a 2013 reform of Canada’s environmental laws by the administration of then-prime minister Stephen Harper. The reform altered the Canadian Environmental Assessment Act, the Fisheries Act, the Species at Risk Act, and the Navigable Waters Protection Act, reducing the number of projects that require environmental assessment studies and narrowing the scope of those assessments. The Mikisew Cree contended that the reform violated constitutionally-protected treaty rights of Canada’s indigenous First Nations.

“It’s been a long struggle,”¬†said Mikisew Cree¬†Chief Archie Waquan upon news of the ruling. “I’m very disappointed, but that’s not saying this is the end. We have more to accomplish.”¬†The Mikisew Cree asserted that Harper’s reform violated rights guaranteed to them by the Crown by Treaty 8 of 1899, and enshrined as constitutional rights following passage of the Constitution Act of 1982.

Former Mikisew Cree¬†chief Steve Courtoreille said his people will take the case beyond Canada’s borders if necessary. “If you have no faith in your justice system, in your country you have to go somewhere,”¬†he said. “I believe that there’s¬†no hope here for us to have any fair deals and support in this country.” (CBC, CBC,¬†Edmonton Journal, Canadian Lawyer)

Robert Janes, attorney for the¬†Mikisew Cree, broached appealing to the United Nations. He told the CBC that¬†Canada¬†is “out of line”¬†with the UN Declaration on the Rights of Indigenous Peoples. “UNDRIP says governments should consult indigenous peoples on legislation; there’s definitely a gap between what we know Canadian law says and what UNDRIP says.”

The UNDRIP was adopted by the UN General Assembly in 2007, with 144 states voting in its favor. Four voted against: Canada, Australia, New Zealand and the United States. In May 2016, Canada dropped its objector status to the declaration and formally adopted plans to implement it. A bill to enshrine the UNDRIP in Canadian law is currently pending in parliament. (Intercntinental Cry, Feb. 20; CBC, Sept. 13, 2017)

At particular issue for the Mikisew Cree is exploitation of oil shale reserves on their traditional lands, which has already had grave impacts on the health of the community.

Photo of Mikisew Cree Chief Archie Waquan via CBC

  1. UN rebukes Canada on prior consultation

    In a rare rebuke, the United Nations has instructed Canada to suspend construction of the Site C dam on British Columbia's Peace River until the project obtains the “free, prior and informed consent” of Indigenous peoples. Canada has until April 8 to report back to the UN Committee on the Elimination of Racial Discrimination outlining steps it has taken to halt construction of the hydro project, which would flood 128 kilometres of the Peace River and its tributaries in the heart of Treaty 8 traditional territory. (The Narwhal)

  2. Pipeline wars rock BC

    Prime Minister Justin Trudeau's arrival in Kamloops Jan. 9 was met with loud jeers from over 100 pipeline supporters and protesters. Demonstrators from both sides flanked the street outside the hotel where Trudeau was scheduled to speak at a Liberal party fundraising luncheon. Oil and gas supporters in yellow vests carried signs that read, "Traitor Traitor," along with messages demanding pipelines be built for economic reasons. On the other side, anti-pipeline protesters drummed and chanted. (CBC)

    The day before, RCMP troops breached a gate that a northern BC First Nation had erected to block access to a natural-gas pipeline project. Officers broke through a blockade on Morice River Forest Service Road, southwest of Houston, on Monday afternoon to enforce a BC Supreme Court injunction, arresting 14 people.

    The checkpoint was one of two manned by members of the Wet'suwet'en First Nation. The first, which has been in place for almost a decade, was set up by the Unist'ot'en, a house group of the Gilseyhu clan. It includes a camp and gate that obstructs the Morice West forest service road and the Morice River Bridge.

    The second, the one just raided, was put in place three weeks ago by the Gidimt'en clan, and blocked the Morice River road. The checkpoints are meant to keep workers away from the construction site for TransCanada PipeLines' Coastal GasLink project, which will deliver natural gas from Dawson Creek to a planned LNG Canada facility near Kitimat. Other pipeline projects are also at issue on the route. (Vancouver Sun)

    1. Indigenous-led pro-pipeline truck convoy

      Indigenous truck drivers staged a pro-pipeline rally in the tiny community of Lac La Biche, Alberta, as laid-off oil and gas workers struggle to make ends meet. The Feb. 10 rally, about 200 kilometres northeast of Edmonton, was billed as the first indigenous rally in support of pipelines. Organized by the local Region One Aboriginal Business Association, more than 30 trucks made their way around Lac La Biche and through neighbouring communities. (CBC)

  3. RCMP raid British Columbia protest camp

    Six anti-pipeline¬†protesters in northern BC¬†were arrested as the RCMP broke up the Wet’suwet’en camps in a pre-dawn raid. The RCMP is enforcing a BC Supreme Court order requiring that Coastal GasLink workers be given access to the area near Houston. (Vancouver Sun)

  4. Protesters block rail lines across Canada

    Protesters blocking Canadian railways have shut down large portions of the nation’s passenger and freight train service in¬†solidarity with the hereditary Wet’suwet’en chiefs opposing the Coastal GasLink project. Tyendinaga Mohawk demonstrators who have set up two camps along Canadian National Railway lines in southern Ontario. Kahnawake Mohawk community members south of Montreal erect a blockade on a Canadian Pacific rail line.¬†Protesters have also disrupted operations¬†at ports in Vancouver and Delta, BC.¬†(CNN,¬†Canadian Press, Feb. 15;¬†CBC, Feb. 12)

  5. Proposed agreement reached with Wet’suwet’en chiefs

    A proposed agreement on land rights and title has been reached between Wet’suwet’en hereditary chiefs and government ministers, bringing three long days of negotiations in northern BC¬†to an end and tentatively resolving a longstanding dispute over the First Nation’s traditional territory.

    Yet the “arrangement”¬†announced by the chiefs, federal Crown-Indigenous Relations Minister Carolyn Bennett and her BC¬†counterpart Scott Fraser does not apply to the Coastal GasLink pipeline, meaning the contentious project is still going ahead as planned for now.

    Bennett said the agreement would effectively resolve the open question left dangling at the end of the Delgamuukw decision handed down by the Supreme Court of Canada in 1997.

    The decision saw the court acknowledge the existence of Aboriginal title as an exclusive and ancestral right to the land, which remains unextinguished. But the ruling did not decide on what what lands actually belong to the Wet’suwet’en, and called for further negotiations ‚ÄĒ a process that didn’t happen until now. ¬†(Global News)

  6. Alberta energy minister: exploit COVID-19 to build pipeline

    From The Canadian Press, May 25:

    Alberta’s energy minister says it’s a good time to build a pipeline because public-health restrictions limit protests against them.

    Sonya Savage made the comment Friday on a podcast hosted by the Canadian Association of Oilwell Drilling Contractors. She was asked about progress of the Trans Mountain Expansion project, which is under construction on its route between Edmonton and Vancouver.

    “Now is a great time to be building a pipeline because you can’t have protests of more than 15 people,”¬†Ms. Savage said. “Let’s get it built.”

    While the interviewer laughed, Ms. Savage did not.

  7. Six Nations land struggle heats up Ontario

    Activists from the¬†Six Nations of the Grand River, an¬†Iroquois¬†reserve in Ontario, have for over a month been blockading roads to a contested piece of land called¬†McKenzie Meadows, where a housing development is planned.¬†Ontario Provincial Police, enforcing a court order, cleared the roadblocks on Aug. 5, but members of the self-decalred¬†Six Nations Land Defenders quickly established a new encampment at the contestes site. The Six Nations reserve council approved the development, but the¬†Land Defenders do not acknowledge its authority and say traditional chiefs were never consulted.¬†(CHCH-TV,¬†CBC,¬†CBC,¬†CBC,¬†Turtle Island News,¬†It’s Going Down)

  8. More arrests at Wet’suwet’en blockade

    Two people were arrested Nov. 29 after blockading an access road used by the company building a gas pipeline on traditional Indigenous territories in northern British Columbia. RCMP officers arrested about 30 Wet’suwet’en members and supporters‚ÄĒalong with two photojournalists‚ÄĒin the same area on Nov. 18 and 19. At the time, police officials said they had dismantled blockades to “rescue”¬†more than 500 pipeline employees stranded in Coastal GasLink work camps because of dwindling water and food supplies. (CBC)

  9. Canada violated rights of indigenous protestors: Amnesty

    Amnesty International released a report Dec. 11 alleging that the Canadian government consistently violated the human rights of indigenous Wet’suwet’en protestors demonstrating against the Coastal GasLink pipeline project. (Jurist)