Treaties and Land Claims: Current Problems

AB


July 11, 2019


Land Claims

Abandoning Denesuline First Nation and Sayisi Dene First Nation Land Claim negotiation

The Denesuline First Nation and Sayisi Dene First Nation Canada were on the verge of initialing a land claim agreement. Then on June 12, 2019, without warning, the Minister put off signing and claimed more consultation was required with Indigenous peoples in NWT. At the negotiating table, Canada had previously agreed to initial the agreement while these NWT talks continued.
Sayisi Dene First Nation and Northlands Denesuline First Nation have been forced to file an Application for Judicial Review of Minister Carolyn Bennett’s decision shutting down negotiations. After a public demonstration in Ottawa on June 19, 2019 and nearly a month of repeated requests, Minister Bennett has refused to meet or explain her action. The court application was filed to meet a legal deadline.


February 2, 2022


Duty to Consult/FPIC

Alberta cuts off Métis Consultation Policy negotiations

Métis Nation of Alberta – MNA has appealed a recent Alberta court decision that concluded the Kenney Government’s decision to cut off negotiations with the MNA on the development of Métis Consultation Policy did not breach the honour of the Crown, including the constitutional duties and obligations Alberta owed the MNA after five years of negotiations. The decision was based on internal and secret government documents that were never disclosed to the MNA at the time negotiations were terminated, and which the MNA only discovered due to the filing of a judicial review.

“The long outstanding and contentious issue of Crown consultation with Alberta Métis continues to undermine both Métis rights and resource development in the province,” said MNA President Audrey Poitras. “While Alberta has consultation policies in place for First Nations and the eight Alberta Métis Settlements, the vast majority of Alberta Métis citizens and communities are never consulted by Alberta when Métis lands, rights and interest are impacted by resource development. Alberta’s approach stands in stark contrast to the federal government who regularly consults with the MNA, which includes its Regions and Locals located throughout Alberta.”

In October 2014, the Progressive Conservative government led by Jim Prentice, and subsequently the New Democratic Party (NDP) government, led by Rachel Notley, engaged in formal negotiations with the MNA to develop a Métis Consultation Policy. In December 2018, a draft policy was presented to Cabinet with direction that further consultations be undertaken. In April 2019, the United Conservative Party government led by Jason Kenney was elected. Then, in September 2019, Alberta wrote to the MNA stating that it “will not be moving forward with the draft consultation policy,” ending five years of negotiations without explanation for the decision.

The MNA filed for a judicial review of the Minister’s decision. In the litigation, Alberta denied it was even negotiating with the MNA or that the honour of the Crown was engaged by its decision to terminate negotiations. Alberta also claimed it owed no duty or obligations to the MNA whatsoever.
Based on a unanimous resolution of the MNA Provincial Council, the MNA has now filed an appeal of Justice Ho’s decision to the Alberta Court of Appeal. In the appeal, the MNA claims that Justice Ho erred in considering and applying the application of the honour of the Crown, including the Crown’s duty to negotiate with the MNA. This is the first Alberta case to deal with the Crown’s duty to negotiate with Indigenous peoples, which has been recognized by the Supreme Court of Canada in a series of cases.


September 20, 2020


Aboriginal Rights and Title

Alberta’s 150th anniversary on entering Confederation

NationTalk – On the day celebrating Alberta’s entry into Confederation 115 years ago, Premier Jason Kenny acknowledged that “Alberta’s history of human habitation dates back more than 10,000 years when the first Indigenous people migrated to Alberta to find a land rich in bounty. Albertans have celebrated years of growth and economic prosperity despite the litany of challenges ranging from the Spanish flu to the Depression to two world wars etc. etc. etc. “Yet, as Albertans have always done – from the protracted fight to wrestle ownership of our own natural resources from the federal government in 1930 to our responsible civic response to slowing the spread of COVID today – we will once again emerge stronger. “This is why I’m proud that our government has officially declared September 1st as Alberta Day to celebrate our great province and all that makes us, as our provincial motto says, strong and free.”

The irony of acknowledging Indigenous “land rich in bounty” with his subsequent statement of “wrestling ownership of our own natural resources” from the federal government” provides a glaring insight into the fundamental – and so far intractable – issue impacting Indigenous relations in Canada: a failure by all levels of government to acknowledge and accept Aboriginal Rights and Title even after the Supreme Court of Canada declared that Aboriginal title exists in law through the Tsilqot’in Nation decision in June 2014 and Delgamuukw in 1997. Jason Kenny basically confirmed with his statement that any Aboriginal claim for an economic benefit from the “land rich in bounty” is irrelevant since the provincial government “owns” the natural resources (Doctrine of Discovery and terra nullius). If the 115 years of growth and economic prosperity fuelled by natural resources were for all Albertans why are Indigenous people who originally “owned” those very same natural resources in the first place, the most impoverished.


January 22, 2021


Supreme Court

Beaver Lake Partial Advance Cost Award

LAC-LA BICHE, AB: Beaver Lake First Nations – The Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nations’ partial advanced cost award. After ten years of litigation, including 5 years where Alberta and Canada unsuccessfully tried to strike its claim, the Beaver Lake Cree could no longer afford the litigation. Recognizing it was undisputed that the Beaver Lake Cree are financially impoverished and that its publicly important, meritorious case deserved to be heard, in 2019, the Alberta Court of Queen’s Bench granted the Beaver Lake Cree a partial advanced cost order that would allow it to continue its case to trial. However, in 2020, during the pandemic, Alberta and Canada successfully appealed the decision.

For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come.

It argued the Alberta Court of Appeal applied the wrong test in determining whether or not the Beaver Lake Cree could genuinely afford the litigation, and that courts are divided on whether affordability means the Nation must exhaust all funds potentially available, including by liquidating assets, or whether other priorities the Nation has for the funds must be considered. The Beaver Lake Cree argued clarity from the Supreme Court was required on how the test for advanced costs applies to a First Nation government charged with managing poverty. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the court must consider that it is not open to a First Nation government to exhaust all the Nation’s available funds in favour of a singular cause. Rather, affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute. The Nation will argue the partial advanced costs award should be restored so a decision on its novel Treaty Rights case can be rendered.


November 24, 2021


Aboriginal Rights and Title

Coastal First Nations vs Government of Alberta and 2 Métis organizations

Coastal First Nations – In the wake of the news that two Métis groups received funding from the Alberta Government to legally challenge the Oil Tanker Moratorium Act, Coastal First Nations (CFN) will continue to fight to protect our waters, lands and resources from potential oil spills.

“We will do whatever it takes to protect our Territories,” said CFN executive director Christine Smith-Martin, adding that the decision to fund two groups, who claim to represent the Métis people, to challenge the Oil Tanker Moratorium Act has nothing to do with reconciliation. “It shows how desperate the Alberta government is to challenge the Act that they would attempt to create division between First Nations and Métis groups.”
In a statement on November 15, Métis Nation of Alberta president Audrey Poitras called the Fort McKay and Willow Lake groups “unaccountable, undemocratic and illegitimate organizations.”
President Poitras further stated: “These organizations are not elected or accountable to anyone and are made up of non-Métis individuals. These organizations do not speak for the Métis Nation, the Métis people or Métis communities in Alberta.”

The Fort McKay group was recognized by the Alberta government as an autonomous Indigenous community in 2020. “If this group, which has been around for two short years thinks our communities will stand idly by, they are mistaken,” says Smith-Martin. “We fought too long to get the Oil Tanker Moratorium Act in place.”
CFN communities have protected our Territories for at least 14,000 years, Smith-Martin said. “We know first-hand what an oil spill will do to our waters. The Heiltsuk Nation is still feeling the impacts of the Nathan E. Stewart spill.” “We take very seriously any threat or political maneuvering to challenge the Oil Tanker Moratorium Act by organizations that are not the title holders of the coastal communities in which these tankers would have traveled,” she adds.

The Act protects our lands and waters for future generations. “Pipelines and oil tankers will exacerbate climate change and move us away from creating a sustainable economy. We respect the rights of legitimate groups to their economic aspirations but not at our expense. These two groups do not hold any rights in the Great Bear Rainforest and certainly have no say in what happens in our coastal Territories.”

See also Treaties and Land Claims post from Feb. 13, 2020 on Métis Nation of Alberta opposition to two Métis organizations designated by government of Alberta


November 24, 2021


Duty to Consult/FPIC

Coastal First Nations vs Government of Alberta and 2 Métis organizations

Coastal First Nations – In the wake of the news that two Métis groups received funding from the Alberta Government to legally challenge the Oil Tanker Moratorium Act, Coastal First Nations (CFN) will continue to fight to protect our waters, lands and resources from potential oil spills.

“We will do whatever it takes to protect our Territories,” said CFN executive director Christine Smith-Martin, adding that the decision to fund two groups, who claim to represent the Métis people, to challenge the Oil Tanker Moratorium Act has nothing to do with reconciliation. “It shows how desperate the Alberta government is to challenge the Act that they would attempt to create division between First Nations and Métis groups.”
In a statement on November 15, Métis Nation of Alberta president Audrey Poitras called the Fort McKay and Willow Lake groups “unaccountable, undemocratic and illegitimate organizations.”
President Poitras further stated: “These organizations are not elected or accountable to anyone and are made up of non-Métis individuals. These organizations do not speak for the Métis Nation, the Métis people or Métis communities in Alberta.”

The Fort McKay group was recognized by the Alberta government as an autonomous Indigenous community in 2020. “If this group, which has been around for two short years thinks our communities will stand idly by, they are mistaken,” says Smith-Martin. “We fought too long to get the Oil Tanker Moratorium Act in place.”
CFN communities have protected our Territories for at least 14,000 years, Smith-Martin said. “We know first-hand what an oil spill will do to our waters. The Heiltsuk Nation is still feeling the impacts of the Nathan E. Stewart spill.” “We take very seriously any threat or political maneuvering to challenge the Oil Tanker Moratorium Act by organizations that are not the title holders of the coastal communities in which these tankers would have traveled,” she adds.

The Act protects our lands and waters for future generations. “Pipelines and oil tankers will exacerbate climate change and move us away from creating a sustainable economy. We respect the rights of legitimate groups to their economic aspirations but not at our expense. These two groups do not hold any rights in the Great Bear Rainforest and certainly have no say in what happens in our coastal Territories.”


November 20, 2018


Indigenous Laws and Governance

Muskotew Sakahikan Enowuk, the traditional Government of the Lubicon Lake Nation

Muskotew Sakahikan Enowuk, the traditional Government of the Lubicon Lake Nation, outlined a number of remaining concerns faced by the First Nation, despite a recently announced Treaty Land Entitlement Settlement between Lubicon Lake Band #453 (the “Band”), Alberta and Canada. The Nation is the traditional governance structure of the Lubicon Cree people which has functioned for hundreds of years and is separate from the Lubicon Lake Band #453 which was only recently created by Canada under the authority of the Indian Act in 1973 and revived in 2013.


July 20, 2020


Aboriginal Rights and Title

Omnibus Bill 22 and Honour of the Crown

Fort McKay First Nation – This omnibus Bill 22 includes amendments that would make the Alberta Energy Regulator (AER) the sole judge of the public interest for all Albertans, allowing the elected government to cut itself out of the decision-making process. This means the AER will be the final decision maker about impacts to Treaty rights and the cumulative effects of development in our Traditional Territory. These are both matters the regulator has previously said are outside its mandate and for which it has no expertise.

In April 2020, the Alberta Court of Appeal threw out the AER’s approval of Prosper Petroleum’s Rigel project with strong language about the AER’s failure to enforce promises made under Treaty 8, and its failure to uphold the Honour of the Crown. Prosper’s project would have threatened the ecological and cultural integrity of the area around our Moose Lake reserves, one of the last unspoiled wildernesses in our Traditional Territory, and central to our ability to practice constitutionally recognized Treaty rights. Fort McKay was forced to take the AER to court and is shocked that after such serious criticism from the highest court in Alberta, the government is rewarding this tribunal with even more power.

Fort McKay and other First Nations will now be forced to turn to the courts even more often to resolve these regulatory and constitutional conflicts. Rather than reducing red tape, this actually increases uncertainty and delay for industry, something both government and AER say they want to avoid.

“If the AER becomes the final authority on oil sands projects, it must be demonstrably neutral in all matters before it. It must be more open, transparent, and accountable. It must improve its ability to understand and make the right decisions related to Treaty rights. It must behave like a quasi-judicial body, with the strict independence of a court, and it must not act like a friend to industry. The AER must learn the new rules quickly or its decisions will be challenged and overruled by the courts time and again”.


January 22, 2021


Aboriginal Rights and Title

Partial Advanced Cost Award

CISION – LAC-LA BICHE, AB – The Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nations’ partial advanced cost award. After ten years of litigation, including 5 years where Alberta and Canada unsuccessfully tried to strike its claim, the Beaver Lake Cree could no longer afford the litigation. Recognizing it was undisputed that the Beaver Lake Cree are financially impoverished and that its publicly important, meritorious case deserved to be heard, in 2019, the Alberta Court of Queen’s Bench granted the Beaver Lake Cree a partial advanced cost order that would allow it to continue its case to trial. However, in 2020, during the pandemic, Alberta and Canada successfully appealed the decision.

For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come.

It argued the Alberta Court of Appeal applied the wrong test in determining whether or not the Beaver Lake Cree could genuinely afford the litigation, and that courts are divided on whether affordability means the Nation must exhaust all funds potentially available, including by liquidating assets, or whether other priorities the Nation has for the funds must be considered. The Beaver Lake Cree argued clarity from the Supreme Court was required on how the test for advanced costs applies to a First Nation government charged with managing poverty. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the court must consider that it is not open to a First Nation government to exhaust all the Nation’s available funds in favour of a singular cause. Rather, affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute. The Nation will argue the partial advanced costs award should be restored so a decision on its novel Treaty Rights case can be rendered.


October 1, 2021


Supreme Court

Supreme Court validates Honour of the Crown

Métis Nation of Ontario, Métis Nation of Alberta – The Supreme Court of Canada released its decision in City of Toronto v Ontario (Attorney General). This case was about the fairness of a municipal election in one city, but the decision also raised the issue of how Canada’s Constitution is to be interpreted and the role of unwritten constitutional principles in protecting the rights of all Canadian citizens, including the unique rights and interest of Indigenous peoples.

The Métis Nation of Ontario (“MNO”) and Métis Nation of Alberta (“MNA”) jointly intervened in the case to protect the unwritten constitutional principle of the honour of the Crown that is owed to Indigenous peoples. While the 5/4 majority of the Supreme Court held that “unwritten constitutional principles cannot serve as the basis for invalidating legislation,” the majority went on to recognize the unique nature of the honour of the Crown and held the following:

The unwritten constitutional principle of the honour of the Crown is sui generis. As correctly noted in submissions of the interveners the Métis Nation of Ontario and the Métis Nation of Alberta, the honour of the Crown arises from the assertion of Crown sovereignty over pre-existing Aboriginal societies, and from the unique relationship between the Crown and Indigenous peoples. We need not decide here whether the principle is capable of grounding the constitutional invalidation of legislation, but if it is, it is unique in that regard.
The dissenting opinion, written by retiring Justice Rosalie Abella, went even farther, noting that “of course, the unwritten constitutional principle of the honour of the Crown has been affirmed by this Court and accorded full legal force.”

The honour of the Crown is extremely important in advancing reconciliation and its must be given full legal force so Métis governments and other Indigenous peoples can rely on the promises governments make to us every day,” said MNA President Audrey Poitras.

MNO President Margaret Froh added, “Our Métis governments are embarking on a new era of rights recognition and nation-to-nation, government-to-government negotiations and relationships with the Crown. The Supreme Court of Canada’s decision makes it clear that Parliament simply passing legislation that does not even consider Indigenous rights or ignores the promises the Crown has made to our governments will not be simply be ignored by the courts.”

Métis lawyer Jason Madden, who represented both the MNA and MNO noted, “The honour of the Crown, as a constitutional principle, is playing an increasingly important role in the development of Aboriginal law generally as well as moderating the relationship between governments and Indigenous peoples as the national project of reconciliation continues.”

“We are pleased that the entirety of the Supreme Court of Canada recognizes the unique purpose of the honour of the Crown, as a constitutional principle, and that its full legal force has been once again confirmed and protected by the highest court in Canada,” concluded Madden.