Ruling upholds need for firms to get consent: chief
By: Carol Sanders
Winnipeg Free Press
First Nations leaders in Manitoba fighting for their fair share of the land hailed Thursday's Supreme Court of Canada decision as a victory.
"This landmark decision only bolsters what we've been saying," said Chief Arlen Dumas of Mathias Colomb Cree Nation.
In 2013, the First Nation issued stop-work orders to HudBay Minerals Inc. to stop the mining on band territory at Lalor Lake and Reed Lake and blockaded the road to the Lalor site. The First Nation, formerly known as Pukatawagan, issued a public declaration to all resource companies that its consent is required for any activity in its territory. On Canada Day, it issued a moratorium against all resource extraction in its territory to both the federal and provincial governments.
"We're going to reissue stop-work orders and issue a declaration to HudBay and everyone else who's operating illegally in our territory and remind them they are in violation of a Supreme Court decision and legalities need to be adhered to," Dumas said by phone from the First Nation. "We're going to continue to put pressure on them."
HudBay later won a court injunction to stop aboriginal protesters from blocking access to two of its remote mines.
The high court's decision could have a huge impact in Manitoba for the Dakota and Sioux, who don't have treaties and for Treaty 1, 2 and 3 First Nations, says a University of Manitoba law professor with 10 years' experience in aboriginal law.
"This is a really big day," said Aimé Craft. "Their treaties are not surrenders of land but agreements to share," she said. "They don't have a blanket extinguishment clause."
First Nations such as Peguis, whose occupancy dates back prior to sovereignty and whose ability to decide on the use of resources within the area they occupied was affected, may now have a say.
"The Supreme Court set out a very clear direction and test," she said. If the occupancy dates back prior to sovereignty and is site-specific -- not a settlement or a village that was occupied 24/7 but land occupied by a semi-nomadic people for hunting, fishing and other forms of harvesting -- they may have a vested title in the land.
That could give First Nations a larger slice of the economic pie.
"The immediate thought is industry and commercial activity," said Craft. "Forestry is huge in Manitoba, the lakes are used for commercial fishing -- there's mining and natural-resources extraction," said Craft.
But proving occupancy and attachment to the land that dates so far back is difficult and expensive, said Craft. The courts like historical, archival records, but prior to European contact there's just oral history and archeological evidence. In land-claim battles, a slew of experts from both sides will debate that evidence, said the lawyer-turned-professor who's represented First Nations going up against the Crown in court.
She hopes the federal government will settle more cases as a result of Thursday's decision.
"Do taxpayers want their tax money to be invested in fighting claims that could be negotiated successfully? Now there is more pressure on government to negotiate."
Thursday's decision should signal to the government that negotiating settlements with First Nations is the right thing to do, said Dumas.
"For whatever reason, they choose to be adversarial," he said. "We want to work collaboratively and move forward with what we're doing. HudBay and the like choose to be adversarial and not uphold the laws of the land.
"They claim they want to work in good faith but how can you speak to somebody when they're suing you?"
Dumas said he and the First Nation are being sued by HudBay "for exercising our constitutionally protected rights."
The company issued this statement: "HudBay has always sought constructive relationships with the First Nations in northern Manitoba. We work continually at strengthening those connections and will always continue to do so."