Friday, September 19, 2014
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A new relationship for Canada’s government and First Nations

In my view...

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ByKen Black

Like it or not, the outlook for Canada’s future has changed considerably in the past couple of months.


Not because of anything our governments did or did not do, at least during recent months; not because of any earth-shattering discoveries or insights gained in relation to our changing climate, although extreme weather events have continued their costly and devastating path of destruction across the country, as well as around the world; and not because of any startling new international events.

The one factor that has made a major difference in the outlook for this country is that the Supreme Court of Canada has done what it is supposed to do, provide rulings and interpretations in relation to legal cases and issues referred to it.

In June, the court affirmed the right of the Tsilghot’in First Nations to title over an area of central British Columbia.

In early July, the Keewatin decision confirmed the Province of Ontario’s right to legislate regarding Treaty 3 agreements between the government and First Nations over areas such as forestry and mining.

And although a consensus on the degree or extent of change will follow, there is considerable agreement that the combined impact of those rulings and interpretations will be felt not just for weeks, months or years, but for decades and beyond.

What are those changes? What is their potential impact in plain and simple language that ordinary people can understand?

Thomas Isaac is leader of the Aboriginal Law Group at the law firm of Osler, Hoskin and Harcourt. In a Globe and Mail article in late July, he answered those questions.

Although the decisions deal with different provinces, different facts and appear to have differing outcomes, Isaac argues that “both decisions are actually consistent with each other and their outcomes similar.”

He goes on to state that as in every decision rendered by the Supreme Court of Canada on the subject, there is a consistent theme — both federal and provincial governments must balance aboriginal and non-aboriginal interests while continuing to govern the country.

Both decisions focus on negotiation and reconciliation between the Crown and aboriginal peoples on one hand, while vigorously empowering the federal and provincial governments to uphold the public interest on the other hand.

I suggest there are three key words that capture the essence of the rulings. Governments will be required to engage in meaningful consultation with First Nations related to lands to which they hold or claim title. Consent of First Nations will be required related to development on such lands. And while governments may be allowed to proceed with development on First Nations land that is ruled to be in the national interest, they may do so only under certain conditions and with fair compensation.

Although those words reflect the original intent of the agreements between the Crown and First Nations, all too often governments of all political stripes in this country have failed to follow that intent

The result has been decades of frustration, and failure to improve the conditions that have plagued First Nations communities and the people who live in them — inadequate housing, education and health care, combined with high levels of substance abuse and addiction.

More damaging has been the almost complete failure to build the economic activity, particularly in remote settings, that would support strong and sustainable communities. While those challenges continue to be major obstacles to progress, recent years have seen other and more encouraging developments.

A new and younger generation of better educated and skilled aboriginal youth is emerging, and beginning to influence both First Nations’ decision-making and their negotiations with governments.

Also emerging are more sustainable First Nations communities that can provide models in building community capacity, leadership and support to aboriginal communities in remote areas. They have the potential to have a major impact in strengthening those communities and investing in their efforts in the years ahead.

So too will the strong voices on behalf of First Nations’ issues from the mainstream of Canadian politics of such people as former Ontario Lieutenant Governor James Bartleman.

Add those factors to the recent Supreme Court rulings and the required responses to those rulings, by not only federal and provincial governments, but private sector corporations wanting to do business with First Nations communities, and the stage is set for a new and more hopeful era for Canada’s aboriginal people and their relationships with governments.        

Whatever Trevor

Dis is Trevor.

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