Contributed to The Globe and Mail
The Numbered Treaties have always been contentious. First Nations view them as sharing agreements, while the federal and provincial governments as land surrenders. Amid a general refusal to earnestly discuss this gulf, the disputes end up in the courts, where there is an increasing perception of a First Nation winning streak. The Supreme Court’s Tsilqot’in decision certainly reinforced that view. But if Tsilqot’in is a “game-changer” in the relationship between provinces, industry and First Nations in non-treaty areas, last week’s Grassy Narrows decision on areas where treaties do exist affirms that the rules are still effectively the same.
There are two features of the decision that underwrite this belief. First, the court has recognized provincial government power to violate treaties. In Grassy Narrows v. Ontario, the Supreme Court suggested that since the province has jurisdiction over lands and resources, “owning the land” as the court said, they should have ultimate authority. So while First Nations have traditionally understood treaties as nation-to-nation and viewed the provinces as junior partners in the relationship, the Supreme Court sees that arrangement inverted and treaty First Nations as subordinate.
The only check in the exercise of provincial power in treaty territory is “the burden” of obligations owed to First Nation. These are three: consultation on potential treaty infringements; accommodation in the case of adverse consequences arising from infringement; and a fiduciary duty, which is the courts way of saying the province should minimize harm to First Nations. In this ruling the court does not comment on Ontario’s record and relies on a past decision to guide the province in alleviating its burden. The result is effectively the status quo ante, which has bordered on apocalyptic.
Known as Asubpeechoseewagong to the Anishinaabe, the community has dealt with residential school and Indian Act trauma typical among Indigenous peoples in Canada. But they have also had their territory flooded by hydro-electric dams, been forced to re-locate their community, been nearly poisoned out of existence by mercury contamination from a pulp and paper mill, and now watch as the source of their food, medicine and a viable economy is hauled away in logging trucks. Instead of addressing this made-in-Ontario tragedy, the province has continued to view its right to issue timber licenses as greater than the Anishinaabeg right to feed themselves.
The additional problematic feature of the Supreme Court’s decision is the shockingly one-sided understanding of history. In a very terse ruling there are two glaring omissions. In its understanding of Treaty #3, the court decided to rely on the text version as well as subsequent federal and provincial legislation. It neglected to consider the perspectives of the Anishinaabeg, including the oral version or the Paypom treaty (Grassy Narrow’s record of Treaty #3). Given the voluminous academic literature on the misleading nature of the written English versions of the Numbered Treaties, evacuating the understanding of the Anishinaabeg from interpretations of the treaty is simply unfair.
Unfortunately this is a theme in the decision. Reflecting on the history of land use in Ontario the court claimed that, “Ontario has exercised the power to take up lands for a period of over 100 years without any objection by the Ojibway.” Yet the history of the relationship between Ontario and the Anishinaabeg (as well as most other First Nations in the province) has been a history of conflict. Physical confrontation, court cases and protests are all endemic features of provincial land and resource management. The long list of Anishinaabe people jailed in Ontario because of these conflicts land is crystal clear evidence of their objections.
So while the case does implore provinces to consult, accommodate and honour treaties, the decision has a dark undertone: First Nations have no place in Confederation. If the province can infringe on the very treaties that led to its creation and which underwrite the existence of the country, there leaves little room for the so-called third order of government that many believe should be embodied by First Nations. Moreover, the courts have embraced a view of history where First Nations simply do not exist except as objects, or rather, burdens who must be managed by one level of government or another.
It is a disappointing decision with a number of implications. For provinces governed by the Numbered Treaties, the ruling means business as usual: consult, infringe, accommodate. For First Nations generally and especially those who do not have a treaty, the Grassy Narrows decision reinforces the Supreme Court’s unstated position in Tsilhqot’in that there is more power to be leveraged where treaties do not exist. In the eyes of the Court, treaties and the accompanying extinguishment of title are a dead-end for First Nations. Finally, for Grassy Narrows, it means that their very long pursuit of justice goes on.
Hayden King is Anishinaabe from Beausoleil First Nation on Gchi’mnissing in Huronia, Ont. He is the director of the Centre of Indigenous Governance at Ryerson University in Toronto.