BY ANDREW BEAR ROBE, CALGARY HERALD
Thomas King’s book, The Inconvenient Indian, states, “... when we look at Native-non-Native relations, there is no great difference between the past and the present. While we have dispensed with guns and bugles, and while North America’s sense of its own superiority is better hidden, its disdain muted, 21st-century attitudes toward Native people are remarkably similar to those of the previous centuries.”
True, there have been some great strides made, but as National Chief Shawn Atleo has stated on a number of occasions, “A fundamental transformation in the relationship between First Nations and Canada is long overdue.”
That transformation means inclusion rather than exclusion, genuine collaboration, meaningful consultations and estoppel in pais on unilateral actions by Canada and the provinces that infringe and impact aboriginal peoples’ proprietary rights and interests. Aboriginal title and Canada’s treaties with First Nations guarantee certain fundamental rights that must be upheld. First Nations are “rights” holders rather than generic stakeholders.
In Western Canada, First Nations are largely excluded from sharing in the wealth generated from oil and pipeline developments. Newspaper columnist Diane Francis wrote in an Oct. 19 column in the Financial Post: “These projects (pipelines) are not the problem but the symptom of the fact that federal and provincial governments have never solved the First Nations land claims issues. Only a handful of treaties in that province (B.C.) have been settled and dozens have languished in courts and the feds and province do nothing substantive. Unless the First Nation issues are settled there, Alberta’s oilsands will be blocked for years from moving westward, possibly forever.”
Attempts to bypass aboriginal and treaty rights by oilsands operators within the Treaty 8 area in northern Alberta is no way to win approvals by the Alberta Energy Regulator for their projects. Statements such as Athabasca Oil spokesperson Andre De Leebeeck’s, that cabinet approval is all that is needed to bypass Fort Mckay First Nation’s appeal against its project, is a non-starter (Calgary Herald, Oct. 19). In other words, De Leebeeck is advocating unilateral action by the province. Such attitudes will only generate more Idle No Mores, court injunctions, police confrontations and road blocks.
Aboriginal peoples’ co-operation can be obtained for major projects such as Northern Gateway. If companies desire project development on traditional aboriginal territories, especially those not surrendered by any treaty or land claims agreement, they must consult with its original owners and accommodations made accordingly via free, prior and informed consent.
Aboriginal interests can no longer be ignored or glossed over in light of recent common law developments, the 2007 UN Declaration on the Rights of Indigenous Peoples, and increased sophistication of aboriginal leaders. The respect for aboriginal and treaty rights within Canadian democracy must be on an equal footing with the respect for private interests.
The Supreme Court of Canada said in Delgamuuk’w (1997), “Aboriginal title is a sui generis interest in land and is distinct from a fee simple ... (it) is a propriety interest and competes on an equal footing with other proprietary interests; it survived British claims of sovereignty and has an inescapable economic component.”
One clear solution is to update the Victorian Treaties (1871-1921) due to the fact that they are collectively silent on the ownership of natural resources. There is no clear evidence that First Nations unequivocally consented to forgo such wealth. On the contrary, during the negotiation of the North West Angle Treaty of 1873, Ojibwa Chief Mawedopenais stated to Treaty Commissioner Morris, “My terms I am going to lay down before you ... The sound of the rustling of the gold is under my feet where I stand; we have a rich country; it is the Great Spirit who gave us this; where we stand upon is the Indians’ property, and belongs to them.” (Morris, The Treaties of Canada with The Indians ... 1880:62).
Furthermore, Treaty 11 Commissioner Henry Anthony Conroy stated in 1921, “ ... the aboriginal owners are entitled to their shares of oil bearing lands ... otherwise great injustices will be done them.” (Fumoleau, As Long As This Land Shall Last ...)
Without a doubt, the Victorian Treaties made possible Canada’s economic growth and prosperity, however, they lack true economic reciprocity with First Nations. Canadians may have supplied technology and capital, however, First Nations provided valuable lands and that is their major economic contribution.
It is imperative that aboriginal peoples no longer be treated as “inconvenient” social challenges, but accepted as economic partners within Confederation.
Andrew Bear Robe, PhD, is a management consultant and a member of the Siksika Nation, a signatory to Blackfoot Treaty of 1877.