Treaties and Land Claims: Current Problems

Fed. Govt.


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.


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.


July 16, 2019


Land Claims

Budget Cuts Claims Research Units

Letter to Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs Canada:

The National Claims Research Directors – NCRD is a national body of specialized technicians who manage thirty-five Claims Research Units (CRUs) mandated to research and develop specific claims against the federal government. Collectively we have developed and advanced over 1500 claims. We repeat our calls for the immediate restoration of stable research funding to pre-cut levels. Failing to restore funding is widely viewed as a continuation of Harper-era dishonourable actions that utterly contradicts principles of reconciliation.

You have repeatedly issued empty reassurances about the importance of Indigenous-Crown relations while simultaneously impoverishing the current process: lack of resources is preventing Canada from meeting legislated timelines for claims review, denying First Nations access to the Specific Claims Tribunal, and jeopardizing negotiations. They also undermine your government’s commitment to claims resolution and your commitments to implement the UN Declaration on the Rights of Indigenous Peoples, where Indigenous peoples right to access justice for historical losses is paramount.

We request now that you respond to our letter immediately, explaining your government’s current allocation of funds and indicating how this drastic underfunding of specific claims research will be addressed.


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.”


February 2, 2019


Supreme Court

Delgamuukw decision and the Tsilhqot’in decision

Policy Options – Continued refusal to accept Aboriginal title as defined by the Supreme Court of Canada in the Delgamuukw decision and the Tsilhqot’in decision. The Supreme Court of Canada similarly recognizes in Delgamuukw that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title “arises from the prior occupation of Canada by aboriginal peoples.” (Policy Options Politique)

https://policyoptions.irpp.org/magazines/february-2019/canadas-prove-it-approach-to-aboriginal-title/

Canada’s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which both the federal and BC governments have committed to implement, recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”


December 11, 2021


Aboriginal Rights and Title

Delgamuukw-Gisday’wa decision,

Union of BC Indian Chiefs – UBCIC marks the 24th anniversary of the Supreme Court of Canada’s ground-breaking Delgamuukw-Gisday’wa decision, which confirmed the continuing existence of the Wet’suwet’en and Gitxsan Title and Rights, contrary to provincial claims that their Title, if it had existed, had been extinguished. On December 11, 1997 the six members of the Court taking part in the judgment were unanimous in their conclusions that the Gitxsan and Wet’suwet’en Title and Rights were never extinguished by Crown occupation, and recognized Gitxsan and Wet’suwet’en Title as inalienable, collective rights, based on their continuing use and occupation of their territories.

Since 2019 the RCMP have used force, aggression, and intimidatory tactics against Wet’suwet’en Nation members and allies, and UBCIC notes that while the CGL pipeline has been approved by both provincial and federal governments, it has come under criticism from Amnesty International, B.C.’s Human Rights Commission and the UN Committee for the Elimination of Racial Discrimination, who say all First Nations affected by the pipeline should give free, prior and informed consent before it can proceed.

The governments of Canada and British Columbia continue to openly ignore the Supreme Court of Canada’s precedent-setting Delgamuukw decision, greenlighting the RCMP to engage in whatever violent tactics it deems appropriate to remove peaceful land defenders from their territories. UBCIC also notes that in 2020 the governments of Canada and B.C. signed an MOU with the Wet’suwet’en Hereditary Chiefs which included:

  • Canada and B.C. recognize that Wet’suwet’en rights and title are held by Wet’suwet’en houses under their system of governance.
  • Canada and B.C. recognize Wet’suwet’en Aboriginal rights and title throughout the Yintah.
  • Legal recognition that the Wet’suwet’en Houses are the Indigenous governing body holding the Wet’suwet’en Aboriginal rights and title in accordance with [their] lnuk Nuatden.
  • Legal recognition of Wet’suwet’en title as a legal interest in land by Canada and B.C.

The UBCIC calls on Canada and BC to uphold the landmark Delagamuukw-Gisday’wa decision and federal and provincial legislation to implement the UN Declaration, and stop any violent or discriminatory practices against Wet’suwet’en land defenders defending their unceded territories.


December 17, 2020


Duty to Consult/FPIC

Failure to extend consulting period

CBC – Five First Nations in Northern Ontario – Neskantaga, Attawapiskat, Fort Albany, Kashechewan and Weenusk First Nations – sent a letter on Dec. 10, 2020 to the federal Impact Assessment Agency demanding more time for the consultation process announced on Nov. 12, 2020 with a deadline of Jan. 21, 2020. They wanted the date pushed back because of capacity issues related to the ongoing effects of the COVID-19 pandemic including an ongoing water crisis and forced evacuations. In the letter, the chiefs wrote, “we do not want the [regional assessment] to start off on a track that is short and leads to dead ends; that does not make full use of the opportunity presented here and ends up being mere window dressing.”

The government’s response was to extend the deadline by eight days until Jan. 29, 2020.

But that didn’t fit Chief Moonias’ definition of meaningful consultation. “You have consultation before you start your project. You have to get permission from the nation before you start the project, that’s how we understand good faith consultation anyways … there’ll be no development in our nation’s territory unless we say so,” he said.

York University professor and Ring of Fire expert Dayna Scott, who has worked on research projects with Neskantaga in recent years, said, “if communities without the capacity to participate right now are going to just be sidelined or excluded and the planning is all going to continue ahead, then it seems that the government just wants to continue with that usual sort of same old approach that non-Indigenous interests can drive the future of the far north.” The York professor added, “but it’s a problem. It shows the audacity of both levels of government here that they think it’s okay to just push these First Nations to the side and continue on with their planning for a region that’s exclusively occupied by Indigenous people.”


September 21, 2020


Supreme Court

First Nation constitutional orders are distinct but equal to Euro-Canadian laws

The Assembly of Manitoba Chiefs (AMC) – will be intervening at the Supreme Court of Canada (SCC) in a significant and potentially transformational hearing to argue that First Nation constitutional orders are distinct but equal to Euro-Canadian laws. On the surface, the case is about the Greenhouse Gas Pollution Pricing Act, the federal government’s carbon tax, and whether it intrudes on provincial jurisdiction.

However, neither the federal nor provincial governments acknowledge the existence of First Nations laws. The AMC, represented by the Public Interest Law Centre (PILC), will argue that the Supreme Court has a unique opportunity to address a much deeper reality. The Court will address the most fundamental constitutional question of our time – the means of addressing climate change. The AMC will propose an analysis, which must recognize the existence of First Nations constitutional orders. The AMC cautions against the incorporation of First Nations laws within the existing Euro-Canadian federalism analysis to address the constitutional question. Instead, the AMC proposes a return to the relationship as it was originally intended by Treaties – one between equal nations with distinct legal traditions.

MC Grand Chief Arlen Dumas said, “First Nations people and laws have always been here. These laws continue to govern First Nations’ relationships with the Creator, Mother Earth and all living beings. They are grounded in mutual respect and underpin the Treaty relationship. Our First Nations laws constitute Canada’s first constitutional order, alongside the French Civil Law and English Common Law. This is a constitutional debate that must acknowledge our nation-to-nation relationships and help frame reconciliation.”

The AMC contends that this court case exposes an outdated, inaccurate and destructive narrative about Canada. First Nations laws have been recognized by the Supreme Court, however recent lower court decisions have sent contradictory signals about the relationship between Euro-Canadian laws and First Nations laws. This lack of clarity has led to a patchwork of inconsistent decisions.

“This court case offers an opportunity for a fundamental paradigm shift in the relationship between First Nations and non-First Nations people,” says Joëlle Pastora Sala, PILC attorney, who will argue at the Supreme Court via Zoom from Winnipeg. “We can create a more meaningful implementation of reconciliation – grounded in the spirit and intentions of treaties. Reconciliation, as outlined in the Truth and Reconciliation Commission’s Calls to Action, requires respect for First Nations laws as equal and distinct from Euro-Canadian laws. The Supreme Court has a key role to play in shaping the path forward.”


May 11, 2021


Aboriginal Rights and Title

Giant Mine Remediation

CBC – The Yellowknives Dene First Nation says the federal government’s response to the Giant Mine petition “reflects some progress,” but when it comes to remediation contracts, the response “falls short.” They say the response fails to reflect over three months of discussions between the Yellowknives Dene and government representatives.

It also points out that the $45.8 million in contracts were not for remediation-related work but for the care and maintenance of the site. As well, the First Nation says it had to enter highly-competitive processes to win the contracts and that the contacts “were not set aside for our benefit.” The First Nation says it also partnered with established companies to win the contacts and that “considerable” financial benefits will flow to its joint venture partners.

“We are left to wonder why the government invested in us to fulfil these work packages, but selected a procurement approach which effectively prevents us from being able to participate in a substantive and meaningful way,” the release says.


February 3, 2021


Aboriginal Rights and Title

Giant Mine Remediation

CBC – The Giant Mine operated from 1948 to 2006, displacing the Yellowknives Dene First Nation (YNDFN) from the western part of Yellowknife Bay, affecting their harvesting rights. The mine contaminated the water and led to long-term negative social impacts among the YKDFN. The YKDFN and the federal government agreed to set up a formal process to discuss an apology and compensation for the First Nation for a mine that operated on its land without its consent for several decades. The clean-up of the mine is expected to cost up to $1 billion, including initial care and maintenance and active remediation. Remediation work at the former gold mine is imminent and the YKDFN have demanded that it be the only eligible bidder on contracts that include water treatment, long-term environmental consulting and monitoring of the project.

Chiefs Edward Sangris, Dettah chief of the YNDFN and Ernest Betsina, Ndilo Chief of YNDFN met virtually with Crown-Indigenous Relations Minister Carolyn Bennett, Northern Affairs Minister Daniel Vandal, and Northwest Territories MP Michael McLeod on Jan. 29.

“They must now put their good words into action,” said Sangris. Betsina said the chiefs want to ensure people who were impacted the most by the toxic legacy of Giant Mine are the ones who will benefit from the remediation project.


July 16, 2021


Supreme Court

Lac Seul First Nation

iPolitics –The Supreme Court of Canada has ruled 8-1 that a $30-million award to the Lac Seul First Nation, located in northwestern Ontario, to cover the federal government’s intentional flooding of its reserve land in 1929 was insufficient, and has sent the case back to trial to be re-evaluated. In doing so, the top court has also established a framework for how to compensate Indigenous groups for historic injustices suffered decades ago, or, in this case, almost a century ago. The Lac Seul band, which at the time represented about 700 Annishinaabe people, was not consulted, compensated, or even informed about the destruction of its timberland, hay fields, wild rice crops, houses, and gardens. More than 50 grave sites were washed away, as well.
Supreme Court Justice Andromache Karakatsanis, writing for the majority, overturned the conclusions of the lower federal courts. But Karakatsanis said that “Indigenous interests in land … are at the heart of the Crown-Indigenous relationship, and are central to Indigenous identity and culture.” They are different, in kind, than private breaches of contract, she added.
Canada’s fiduciary duty required it to capture the full potential value of the land for the Lac Seul band, she continued. “To that end, the highest and best use at the time of the government’s breach was the land’s intended use as water storage for hydroelectricity generation.”


October 28, 2020


Supreme Court

Lac Seul First Nation

Assembly of Manitoba Chiefs (AMC) – Supreme Court of Canada grants intervener status to AMC, along with many others, in the Southwind case. Lac Seul Band launched the suit against the Federal Government for breaching their fiduciary duty when they flooded reserve land to advance a hydro-electric project. This project would see massive profits for the government, while leaving the First Nation of Lac Seul destitute and without reparations or adequate compensation for the devastation of their land and lost opportunity. Lac Seul, however, subsequently appealed the Federal Court of Appeal decision stating that the compensation amount should have been calculated based on both significant cultural loss and on the use of the flooded land for hydro profits, meaning that the ordered amount did not accurately reflect the loss suffered.

“The Federal Government owes all First Nations a fiduciary duty which is a long standing obligation to act in the best interests of First Nations. Clearly, profiting on the backs of First Nations to their detriment is not honouring the fiduciary obligation and Lac Seul should be compensated to fullest extent considering any and all losses suffered by the Nation,” said AMC Grand Chief Arlen Dumas.

Grand Chief Dumas concluded, “This appeal marks a significant opportunity for Supreme Court to provide clarity on how, in light of the unique Crown-First Nations relationship, equitable compensation can best be assessed when the Federal Government has breached its treaty obligations or fiduciary duty to a First Nation.”


September 25, 2020


Supreme Court

Lac Seul First Nation

Dryden Now – In 1929, the Ear Falls Dam was built to supply hydroelectric power to Ontario and Manitoba, but flooded over 11,000 acres of Lac Seul First Nation’s reserve lands and burial sites that same year. Chief Derek Maud says it’s disappointing and unacceptable that Canada has not addressed the outstanding issue, and he is once again calling on Ontario, Manitoba and Canada to develop an immediate shoreline and grave site protection strategy.

“For over 90 years, this issue has been ignored by Canada, Ontario and Manitoba. It continues to be ignored,” said Chief Maud.


April 23, 2020


Supreme Court

Lac Seul First Nation

First Peoples Law -The Supreme Court of Canada granted Lac Seul First Nation’s application for leave to appeal the Federal Court of Appeal’s decision in Southwind v. Canada. The Supreme Court is expected to clarify how equitable compensation is calculated where a First Nation’s reserve lands have been taken or damaged by the Crown in the absence of a valid surrender or expropriation. The decision could directly affect First Nations across Canada dealing with claims relating to the unlawful taking of their reserve lands.

Concerns have also been raised that the Court’s approach is inconsistent with the provisions governing compensation for specific claims under the Specific Claims Tribunal Act, and that going forward, the Crown could rely on the lower court’s interpretation of the ‘appropriation’ provision in Treaty #3, which was arrived at in the absence of a proper evidentiary record setting out the parties’ respective understandings of the terms of the Treaty.

The Supreme Court’s decision is expected to address these issues and provide clarity. In particular, the Court will be asked to consider the application of fiduciary principles in respect of the taking of reserve lands without a surrender or expropriation and the determination of equitable compensation in this context.


May 8, 2022


Land Claims

Legacy of 1907 illegal land transfer leaves Peguis First Nation struggling with recurring flooding

Peguis FN was moved off of their original territory through an illegal land transfer in 1907 to their current location on Fisher River where they have been subject to continuous flooding.

Toronto Star: The marshy delta of Manitoba’s Fisher River was not the original home of Peguis First Nation. But having been relocated there more than a century ago after an illegal land transfer, and facing increased flooding in recent decades, the community is hoping to get some permanent infrastructure for protection.

“We have asked for a diversion (channel). We have asked for ring diking. We have asked for elevated roads … but nothing has occurred,” Chief Glenn Hudson said in an interview from the community that has been swamped again this year. A reservoir upstream that might hold back water during flooding would be another option, he said

More than 1,400 of 3,500 residents have left the reserve since the Fisher River spilled its banks last week. Most have gone to Winnipeg, 60 kilometres to the south. Hundreds of homes have been surrounded by water or have been flooded. Residents who have stayed are trying to keep homes protected with sandbags and are ferrying food and people by boats.

Manitoba faces the threat of flooding almost every year. Many communities are protected by dikes, diversion channels or reservoirs. The town of Morris in the Red River Valley, with a much smaller population than Peguis, is one of many with a ring dike that can keep the community dry even when surrounding farmland and roads are submerged.

Hudson, who has been chief for all but two of the last 15 years, said the federal and provincial governments have been in talks about possible permanent flood protection. The federal government indicated Friday it is willing to look at permanent protection.

“There is a history of flooding in this community and we have some important work to do once we get through this crisis period to talk about the future of supporting Peguis in resiliency efforts,” Indigenous Services Minister Patty Hajdu said in Ottawa.

Peguis was originally the St. Peter’s reserve and was situated on good agricultural land closer to Winnipeg. The federal government did a land transfer in 1907 that resulted in the First Nation being moved to its current location. Peguis has other smaller reserves as well. The federal government conceded in 1998 that the transfer was illegal. The two sides reached a settlement 11 years later.

Hudson said drainage improvements upstream since the 1970s have made things worse by allowing water to flow to Peguis more quickly. The federal government has provided help to flood-proof some of the most vulnerable homes and has cost-shared a study with Manitoba.

“The … study concluded mitigation measures were possible, but would likely cost several hundred million dollars and would likely not prevent all types of flooding,” Matthew Gutsch, a spokesman for Indigenous Services Canada, wrote in an email.


February 23, 2022


Aboriginal Rights and Title

Matawa Chiefs Council Opposition to the Regional Assessment for the Ring of Fire

Feb. 23, 2022: The Matawa Chiefs Council and Matawa First Nations Management (MFNM) – representing (9) member First Nations call on Canada to begin the collaboration, negotiations and investment process – in partnership with Matawa member First Nations – to maximize the benefits of the development of the north. 

The land Ontario refers to as the Far North is predominantly land subject to the James Bay Treaty # 9 (1905-06 and 1929-30).

The written submission made a specific recommendation for the establishment of a Matawa/Canada Northern Development Table with Minister of Crown Indigenous Relations and Northern Affairs, the Honourable Marc Miller designated the lead federal Minister to work with Matawa member First Nations with the demands of the government of Ontario and the mining industry secondary.

The Matawa Chiefs Council are assessing the proposed draft Agreement between Canada and Ontario for the Impact Assessment Agency of Canada (IAAC) Regional Assessment for the Ring of Fire, and the current approach to exclude Matawa member First Nations as a recognized Treaty partner and potential ‘Indigenous governing body’ to have a directing and decision-making role alongside Canada and Ontario is unacceptable. 

Canada and Ontario’s maneuvering on the Regional Assessment is the start of the failure of promises made to Indigenous Rights Holders under Bill C-69 (Royal Assent, 2019) to overhaul the environmental legislation of Canada as well as the upcoming implementation of Bill C-15 the United Nations Declaration of the Rights of Indigenous Peoples Act (Royal Assent, 2021).

As part of its own internal work to date on the development of the north and the emerging new northern Ontario economy, the Matawa Chiefs Council, Matawa First Nations Management Board of Directors, CEO and staff have continued to identify and work on the priority areas such as:

  • Regional infrastructure and economic opportunity investments; and
  • Planning for the tangible improvements to Matawa member First Nation quality of life, high cost of living, and lack of services currently delivered on-reserve; and
  • Regional and local financial management supports and investment planning; and
  • Significant capacity building within the Matawa region in health, health co-op, physician and nursing services, and child welfare and family supports within the MFNM organization and programs/services umbrella; and
  • Strategic regional education, employment and training initiatives related to supporting First Nations communities and industry partners to prepare for specific and specialized job opportunities; and
  • Regional ecological and environmental initiatives that ensure the best science and technology are used in the remote north.

“The Matawa Chiefs Council have consistently stated the position that the development of the North including the Ring of Fire mineral deposit will require the participation of our people of the Matawa First Nations, the governments of Canada and Ontario, industry and investors to maximize the potential multi-generational benefits that are anticipated.” says David Paul Achneepineskum, CEO of Matawa “Now is the time for Canada to demonstrate its commitment to reconciliation and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples in its approach to its relationship with the Matawa First Nations, Canada’s economic recovery and major project development.”

– David Paul Achneepineskum, CEO, Matawa First Nations Management

https://nationtalk.ca/story/matawa-calls-on-canada-to-establish-a-matawa-canada-northern-development-table-for-economic-prosperity-that-benefits-all-canadians-including-first-nations-in-budget-2022


October 20, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Kwilmu’kw Maw-klusuaqn Negotiation Office – Assembly of Nova Scotia Mi’kmaw Chiefs (Assembly) met with Minister Bernadette Jordan, Department of Fisheries and Oceans; Minister Carolyn Bennett, CIR and Minister Marc Miller, ISC to further discuss how the Mi’kmaq will be exercising their right to fish for a moderate livelihood. The Assembly pushed for Canada to accept the Community Netukulimk Livelihood Fishery Management Plans, as these plans have been developed by communities, and have been provided to and accepted by the Assembly. The Mi’kmaq of Nova Scotia are well within their Rights to fish under these Plans and Department of Fisheries and Oceans (DFO) needs to recognize that authority.


September 21, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Global News – …a flotilla of non-Indigenous fishermen removed about 350 lobster traps off the coast of southwestern Nova Scotia…under the watch of RCMP, coast guard boats and police helicopters. “The gear that we were collecting was what was in violation of the law,” Colin Sproul, President of the Bay of Fundy Inshore Fishermen’s Association said. “There’s nothing more to show that fishermen have the true, just, lawful position here than the fact that we conducted that activity yesterday and nobody stopped us.” What law is being broken: the deliberate theft and destruction of Indigenous “property” by white fisherman with the active support of the police and government authorities or the actions by authorities and government to deny Indigenous rights and title even when confirmed by the Supreme Court of Canada.


May 12, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Ku’ku’kwes News: In a letter dated April 30, the chair for the UN Committee on the Elimination of Racial Discrimination (CERD) asked Leslie Norton, Canada’s permanent representative to the United Nations in Geneva, Switzerland to explain what Canada has done to:

  • Investigate alleged acts of racism, violence and vandalism against Mi’kmaw fishers and supporters
  • Investigate alleged lack of response by officers with the RCMP and the Department of Fisheries and Oceans to protect Mi’kmaw people
  • Prevent further acts of violence, racist hate speech, incitement of violence and destruction of property against Mi’kmaw people
  • Respect, protect and guarantee the rights of Mi’kmaw people right to fish and be consulted

The CERD chair has also requested that Canada “provide details on the status of the treaties concluded between 1760 and 1761 and the implementation of Mi’kmaq fishing rights under such treaties.”


May 11, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Kwilmu’kw Maw-klusuaqn Negotiation Office – The community of Potlotek First Nation has now filed a legal proceeding against DFO challenging the validity of the DFO regime in its limitations of Mi’kmaw livelihood harvesting activities. “We are filing for a declaration that the Fisheries Act and Regulations are invalid as against authorized Mi’kmaw harvesters who are in compliance with our community’s Livelihood Plan,” said Chief Wilbert Marshall, Potlotek First Nation. “Our harvesters have a right to be out on the water and that right was affirmed by the highest court in the country. DFO continues to put limitations on our livelihood fishery, when they have no justification or position to.”


March 30, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

APTN – Mi’kmaw lobster harvesters in Nova Scotia have launched legal action against Canada’s attorney general, RCMP, the Department of Fisheries and Oceans (DFO), and 29 non-Indigenous fishers including the Bay of Fundy Inshore Fishermen’s Association (BFIFA) for the events around the launch of the Moderate Living Fishery in September 2020


March 3, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Department of Fisheries – Introduced a path forward for Moderate Livelihood Fishing Plans based on three key principles:

  • implementation of First Nations Treaty rights
  • conservation and sustainability of fish stocks, and
  • transparent and stable management of the fishery.

The Sipekne’katik First Nation and the The Assembly of Nova Scotia Mi’kmaw Chiefs reject the plan
The Chronicle Herald – The plan dictates that “all MFLPs must be under the regulatory authority of the federal and provincial governments; any future moderate livelihood fishery has to take place within the existing commercial season; and fishery will be conducted under licences issued by her department
https://nationtalk.ca/story/statement-minister-jordan-issues-statement-on-a-new-path-for-first-nations-to-fish-in-pursuit-of-a-moderate-livelihood


February 3, 2021


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Global News – The Sipekne’katik First Nation has filed a court action against the Attorney General of Nova Scotia to challenge a provincial regulation on purchasing fish products, saying it’s unconstitutional. This regulation orders that any fish products sold in Nova Scotia must be caught and registered under a commercial licence with the Department of Fisheries. The court action asks the court to declare that prohibitions against buying fish from Mi’kmaq, fishing outside of DFO’s commercial licence regime, and prohibiting Mi’kmaq to moderately fish outside of the commercial season, are unconstitutional and contrary to Treaty Rights.


December 21, 2020


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

The Unified Fisheries Conservation Alliance (UFCA) – a newly formed alliance of commercial fishery stakeholders, is calling on the Government of Canada to establish clear, lasting, responsible, regulatory oversight for all fisheries – commercial, food, social, and ceremonial. Established in Nov. 2020, the UFCA represents thousands of multi-species commercial fishermen, fishery associations, and associated businesses from across Atlantic Canada and its membership is growing.

The UFCA believes that Indigenous and non-Indigenous fishermen can work side by side like they do today in the commercial fishery and recognizes and acknowledges the importance of cooperation with Indigenous communities, and that Indigenous fishermen have a right to fish for commercial, food, social, and ceremonial. “We want to work with the Government of Canada and First Nations to inform and understand viewpoints and ultimately establish regulatory certainty. Our members reject all forms of racism, intolerance, and violence, and believe there is a path to move beyond the controversies and heated rhetoric of recent months, to a positive outcome for all,” said Sproul.


October 23, 2020


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Kwilmu’kw Maw-klusuaqn Negotiation Office – Representatives of the DFO Conservation and Protection (C&P) officers, who seized traps from Potlotek and Eskasoni authorized harvesters, refused to attend the consultation discussions (between DFO and Assembly of Nova Scotia Mi’kmaw Chiefs) to explain their actions and DFO representatives in attendance said they would not exercise authority over C&P officers.

While the Mi’kmaq of Nova Scotia have done their due diligence, bringing all documents, including Community Netukulimk Management Plans, to the table for transparent and fulsome discussions, what is being said by the Minister publicly about working in good faith with the Mi’kmaq, is not the direction that her Negotiations Team is taking. Since the Mi’kmaq of Nova Scotia see the discussions with Canada failing them at a critical moment, the Mi’kmaq are now prioritizing a new way forward.


October 21, 2020


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Sipekne’katik First Nation awarded an interim injunction “authorizing police to arrest anyone whose interference, blockades or threats keep the community from carrying out its fishery…

Chief Michael Sack has indicated that “The plan…includes conservation measures, regulations for the boats and their safety and compliance officers”. The main concern for the non-Indigenous fisherman is the sale of the lobsters outside of the regulated commercial fishing season; an issue that the band and community will address.

In the meantime, the governments of Canada and Nova Scotia insist that the laws of Canada must be obeyed. The Supreme Court of Canada’s September 17, 1999 decision in the DonaldMarshall case affirmed a treaty right to hunt, fish and gather in pursuit of a ‘moderate livelihood’, arising out of the Peace and Friendship Treaties of 1760 and 1761.The Decision affected 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec. (Government of Canada website, Sept, 2020.


October 1, 2020


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Kwilmu’kw Maw-klusuaqn Negotiation Office – Mi’kmaw harvesters from the Potlotek Mi’kmaw community will exercise their inherent right to fish for a moderate livelihood under their communities own self-governed fisheries plan. The harvesters will take to the waters of St. Peter’s Bay on the annual celebration of Treaty Day, a date to recognize and honor the treaties signed between the Mi’kmaq and the Crown in the 1700’s. The
is a step towards self-governance. Potlotek has been working collaboratively with the Assembly of Nova Scotia Mi’kmaw Chiefs, Kwilmu’kw Maw-Klusuaqn Negotiation Office (KMKNO), their community harvesters and community members to develop a plan that follows the Mi’kmaw traditional beliefs of Netukulimk, respects conservation, follows safety protocols and allows for a sustainable and responsible fishery.

Netukulimk is the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community. Netukulimk is achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of our environment.


September 18, 2020


Indigenous Laws and Governance

Mi’kmaw Netukulimk Moderate Living Fishery

Toronto Star – “In its 1999 Marshall decision – borne of a court case against Mi’kmaw fisherman and icon Donald Marshall – the Supreme Court affirmed the right of First Nations to hunt, fish and gather in pursuit of a “moderate livelihood.”” 21 years later, the federal government has failed to define “moderate livelihood. The Sipekne’katik First Nation has therefor created its own self-regulated moderate living” fishery issuing seven licenses


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.


March 8, 2022


Aboriginal Rights and Title

Nuchatlaht Nation Aboriginal Title case with BC Supreme Court

Windspeaker.com – The Nuchatlaht Nation began its legal battle in 2017 fighting BC and the federal government to get their land back. Their territory includes a large part of Nootka Island off the west coast of Vancouver Island. It has been impacted by industrial logging and fishing for almost a century since Nuchatlaht was displaced by the BC government. BC has awarded licenses to corporations to work the land. Western Forest Products, one of those licensees, is also a defendant in the case.

The remedy being sought, said Woodward, is that Aboriginal title exists and BC’s Forest Act ceases to apply.

“The forest companies are going to have to deal with Nuchatlaht, not with the provincial government and Nuchatlaht may decide they’re not going to keep cutting down those trees,” he said.

Woodward said he had just received the province’s statement of defence on the case, which outlined three arguments, that :

  • Nuchatlaht did not presently occupy the land; 
  • BC laws displaced or extinguished Aboriginal title; and
  • Nuchatlaht was “too small and weak” to have Aboriginal title.

Woodward chided the province for its “disgraceful argument” and called on the attorney general David Eby to “turn it around.” Woodward also called on the province to implement the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which came into law in November 2019. BC was the first province to pass legislation that established the United Nations Declaration for the Rights of Indigenous People (UNDRIP) as its framework for reconciliation.

The Nuchatlaht case will be the first land title to be tested against DRIPA and could be precedent setting.

Woodward said there are a number of other potential cases – Haida, Coquitlam, Cowichan Tribes – that could be impacted by this decision. The Nuchatlaht case is also a direct application of the precedent-setting 2014 Tsilhqot’in decision. The Supreme Court of Canada stated that a semi-nomadic tribe can claim title to a tract of land even if used sporadically.


March 16, 2022


Indigenous Laws and Governance

Opposition to Ottawa’s Ring of Fire Environmental Assessment

Mar. 16, 2022: Timmins Today – A coalition of conservationists, environmentalists and lawyers want Ottawa’s Ring of Fire environmental assessment process to be broadened in size and scope to include industrial centres like Sault Ste. Marie and Sudbury. In a March 15 letter sent to three federal cabinet ministers, the group is calling for a pause in the two-year-old Regional Assessment process in order to rejig the structure and governance to allow Indigenous communities in the region to take the lead.

It’s the same proposal put forward earlier by an alliance of remote First Nation communities in the James Bay area. 

The correspondence was sent to Steven Guilbeault, Canada’s environment and climate change minister; Jonathan Wilkinson, the natural resources minister, and Marc Miller, the minister of Crown-Indigenous Relations. Some of the signatories to the letter include representatives from the:

  • Wildlands League
  • MiningWatch Canada
  • Greenpeace Canada
  • The David Suzuki Foundation, an
  • World Wildlife Fund-Canada
  • Coalition for a Liveable Sudbury
  • the Wilderness Committee
  • Northwatch, Clean North
  • Canadian Environmental Law Association
  • Ontario Nature and
  • the National Audubon Society.

From what they’ve viewed in the draft agreement, released by Impact Assessment Agency and spelling out the ground rules, the group answered that this method disregards treaty rights, disrespects traditional Indigenous knowledge, and “betrays” the promise to engage and work alongside First Nations people.

In their letter to Ottawa, the group said they initially welcomed the regional approach, but what they see shaping up is a narrowly focussed one that places an emphasis on studying the impact of mining on the landscape. The kind of comprehensive assessment they want to see would examine the broader global implications of “massive industrial activity” on significant wetlands and watersheds of the greater Hudson Bay area.  “A proposed new mining district, approximately five times the size of the City of Toronto, should not (be) treated as fait accompli in this day and age,” the letter said. Disturbance of this undeveloped area, they claim, would result in the release millions of tons of greenhouse gases stored in “one of the most carbon-rich ecosystems on the planet.”

The group wants the study area opened up to include entire northern watersheds — namely the Ekwan, Attawapiskat and Winisk systems — the ecosystems of the region’s peatlands, wetlands and boreal forest, and want the scope expanded to include “all human activities” and the various factors that influence climate change. On the mining front, the group said this assessment must address the “social and environmental consequences” of the industry’s extraction, transportation and processing aspects, which means noting the concerns of residents in Sault Ste. Marie and Sudbury where Ring of Fire ore would be processed.

The group added Ottawa needs to restore public trust with a credible process, make good on its legal commitment to the United Nations Declaration on the Rights of Indigenous Peoples, and follow through on its obligations to climate change. “Canada may not be able to afford the carbon costs of full mining exploitation in the Ring of Fire given its location in one of the most carbon-rich ecosystems on the planet,” the letter said.


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.


August 14, 2019


Indigenous Laws and Governance

People of the Longhouse

CBC – The Federal Government continuing to rely on a Specific Claims process that according to Peter Di Gangi, a board member at the First Nations-led research centre Yellowhead Institute, is the federal government’s conflict of interest. “The claims are against the federal government. At the same time, it controls the negotiation process, controls the funding. It controls just about every aspect of the process,” said Di Gangi. “That has an impact on the ability of First Nations to feel that they have an opportunity to have their claims addressed in a fair and open manner.”

Kanesatake’s 301-year-old land dispute highlights flaws in Canada’s Specific Claims Policy. In places like Quebec, underlying Aboriginal title to the land also complicates situations when the federal government seeks a “release” to the claim when a settlement is reached. For some communities, it’s viewed as a form of extinguishment,” said Di Gangi. “If you have underlying Aboriginal title and are sitting at the table with the government to resolve a specific claim, why would you want to release your underlying title just to settle a reserve claim?” Kanesatake activist Ellen Gabriel “It’s a monetary compensation for their derogation to something they should have been doing all along. It doesn’t give us back our land; it doesn’t respect or recognize our rights and unceded lands,” said Gabriel.

Resolving the land dispute by sitting down with the People of the Longhouse, the traditional governance structure for the Iroquois Confederacy of Mohawk, Onondaga, Oneida, Tuscarora, Seneca and Cayuga nations. However, the policy allows only band councils to file a claim.


January 7, 2022


Land Claims

Robinson-Huron and Superior Treaties, 1850

CBC – Ontario will appeal the Robinson Huron Treaty Annuity Case to the Supreme Court. The case was upheld by both the Ontario Superior Court and then the Ontario Court of Appeal. The 21 First Nations involved said that amount needs to be re-negotiated, and the courts have agreed.


November 5, 2021


Land Claims

Robinson-Huron and Superior Treaties, 1850

The Manitoulin Expositor – The Ontario Court of Appeal releases judgment on Ontario’s Stage 1 and 2 in Robinson–Huron Treaty Annuities Case that affirms much of the trial decision and only disagrees with the trial judgment on a limited number of issues. As we explain, we unanimously reject the majority of the arguments raised on appeal. We dismiss Ontario’s appeal from the Stage Two proceedings in its entirety …” “Our initial analysis of the judgement is that the Court of Appeal affirms the enforceability of the treaty and the obligation of the Crown to increase the annuities,” said Chief Dean Sayers of Batchewana First Nation. “This decision shows yet again that Ontario must drop these lengthy and unnecessary appeals.”


August 16, 2021


Land Claims

Robinson-Huron and Superior Treaties, 1850

Wawa News – The Government of Canada has completed their mandating process and are prepared to negotiate and settle the ongoing annuities case. Canada has stated that the negotiation and settlement process requires participation from the Government of Ontario. “Now, we need the province to come to the table to make this settlement happen,” said Chief Sayers. “It is time for Ontario to honour the escalator clause and engage in negotiations on behalf of all people we have welcomed on our lands.”


April 28, 2021


Land Claims

Robinson-Huron and Superior Treaties, 1850

Wawa News – the Ontario Court of Appeal concluded its hearing of the Government of Ontario’s appeal of the Stage 1 decision in the Robinson Treaties annuities case. The Court of Appeal has reserved its decision on the Stage 1 appeal, which it will likely release in the months following its hearing of the Stage 2 appeal.


July 8, 2020


Land Claims

Robinson-Huron and Superior Treaties, 1850

Manitoulin Expositor – Since the Ontario Government launched their appeal of the Dec. 24, 2018 decision, the Superior Court has sided with the Anishinabek Nation in two of three challenges:

Phase 1: Established that the original treaty created a ‘sui generis fiduciary relationship’ (meaning the colonial government was required to manage the lands and act in the best interests of the First Nations, a relationship that was specifically applicable to this case

Phase 2: Justice Hennessey rejected the crown’s various arguments that it should not have to increase annuities or make up for lost payments in past. These arguments included a statute of limitations—that too much time has passed between the last annuity increase and it should not be responsible for annuities before 1963, and that the Crown may be ‘immune’ from being sued.

Phase 3 – Final phase addresses the compensation issue (TBD)
https://www.manitoulin.ca/robinson-huron-treaty-money-lawsuit-gets-nod-from-superior-court-judge-crowns-defence-pleas-come-up-short


January 22, 2019


Land Claims

Robinson-Huron and Superior Treaties, 1850

The Government of Ontario appealed the Robinson-Huron and Robinson Superior Treaties Superior Court decision around Annuities claims while at the same time negotiating with the 21 First Nations making up the Anishinabek people in northern Ontario. In her December ruling, Justice Patricia Hennessy wrote the annuities described in the treaties — which hadn’t been raised since 1874 — were meant as a mechanism to share the wealth from the treaty territory’s resources. “As the historical and cultural context demonstrates … the parties were and continue to be in an ongoing relationship,” wrote Hennessy. The government of Ontario disagrees but the Government of Canada does not.
BACKGROUND:
The Royal Proclamation of 1763 was issued by King George III and is a document that set out guidelines for European settlement of Aboriginal territories in parts of North America. The Royal Proclamation was clear that lands did not become available for settlement – known as public lands – until after a treaty with Aboriginal inhabitants.

“The treaties were entered into on a nation-to-nation basis; that is, in entering into the pre-Confederation treaties, the French and British Crowns recognized the Aboriginal nations as self-governing entities with their own systems of law and governance and agreed to respect them as such.” (source: Royal Commission on Aboriginal Peoples). Through the Treaty, the Lake Huron Chiefs and leaders of the Anishinabek signatory First Nations intended to protect the territory and establish relations. Contrary to what many Canadians believe, nothing has been given to our First Nations. In fact, it was our First Nations who agreed to share our resources with the newcomers, now Canadians. The Robinson-Huron Treaty intended to provide economic benefits for the First Nations parties to the Treaty in perpetuity. Significant wealth has been and continues to be generated from resource development within the Treaty territory.


July 29, 2021


Land Claims

Saugeen First Nation Treaty 72 signed 1854

Saugeen Ojibwat Nation – Ontario Superior Court ruled on SON’s claims: an Aboriginal title claim to parts of Lake Huron and Georgian Bay and a claim that the Crown breached its promise to protect forever parts of the Saugeen (Bruce) Peninsula for SON. The claim to “waters” was denied based on a lack of evidence about exclusive and sufficient use at the time that the British Crown asserted sovereignty in 1763. The court agreed with SON that there was a treaty promise to protect the Peninsula for SON, and found that the Crown breached that treaty promise. She said that the Crown could have and should have done more to protect SON’s lands on the Peninsula. Because it didn’t, she found that the Crown breached its honour. The “remedy” phase is still to occur once any appeals have been heard.


October 15, 2020


Land Claims

Saugeen First Nation Treaty 72 signed 1854

NationTalk – SON’s claim is that the Crown could have protected the Peninsula and misled SON in the negotiations of a surrender of the Saugeen (Bruce) Peninsula. SON’s claim is that this was a breach of the Crown’s fiduciary duty. What SON is seeking is a declaration the Crown breached this duty. If successful, in a later phase of this claim, SON will be looking for recognition of its ownership interests in lands on the Saugeen (Bruce) Peninsula that are still owned by Ontario or Canada or have not been bought and paid for by third parties (so, municipal roads, for example), as well as compensation. This second claim is against Ontario and Canada, but also includes several municipalities that own open and unopened roads on the Saugeen (Bruce) Peninsula
https://nationtalk.ca/story/saugeen-ojibway-nation-trial-coming-to-an-end


September 25, 2020


Land Claims

Saugeen First Nation Treaty 72 signed 1854

Saugeen Ojibway Nation (SON) and Grey County – The Chippewas of Saugeen First Nation and the Chippewas of Nawash Unceded First Nation reached an agreement settling Grey County’s involvement in SON’s long-standing legal action in relation to parts of the Saugeen (Bruce) Peninsula. The agreement settles a claim launched by SON approximately 25 years ago and is a positive step towards fostering further cooperation and reconciliation between Grey County and SON. Grey County is the first municipality involved in the claim to reach a settlement. SON will continue to pursue its legal claim against the five remaining municipalities and the federal and provincial governments. The full terms of the settlement are confidential, but Grey County has included the property in the settlement in the spirit of reconciliation, and without any admission of liability on the County’s part.


August 7, 2019


Land Claims

Saugeen First Nation Treaty 72 signed 1854

CBC – In 2014, a tentative agreement between the First Nation and the Town of South Bruce Peninsula was proposed that would have recognized Saugeen’s ownership of the strip of beach. During the municipal election that fall, former councillor Janice Jackson unseated the previous mayor, running on a platform that the town would not settle out of court. She was re-elected in 2018.

A news release from Saugeen First Nation announcing that the summary judgment motion had been served said the South Bruce Peninsula mayor “is not interested in being neighbourly and is more concerned with politics than evidence.”


June 5, 2017


Land Claims

Saugeen First Nation Treaty 72 signed 1854

Globe and Mail, Aug. 30, 2015, Updated June 5, 2017 – Resorting to the courts to resolve a long-standing land claim issue. The federal government supports the Saugeen First Nation claim which dates back to Treaty No. 72, signed in October, 1854. Surveying documents made at the time validate that the eastern boundary should have been approximately 1 ½ miles further northeast than today’s boundary.


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.


May 6, 2019


Duty to Consult/FPIC

Treaty 6, 7, and 8 insist on FPIC

The Chiefs of Sovereign and Treaty Nations from Treaty 6, 7 and 8 have consistently told Canada, “Nations don’t make laws for other Nations”. Despite numerous attempts to work with the Federal Government, Canada continues to unilaterally develop laws and policies without our right to free, prior and informed consent. Alexander First Nation, Chief Kurt Burnstick

On behalf of our Nation and three other First Nations, we filed an early warning action with the Committee on Elimination of Racial Discrimination (CERD) against all the unilateral actions of Canada. In December 2018, a letter was sent to Canada asking what steps Canada has taken to protect the rights of our Nations to our free, prior and informed consent in all aspects from legislation to policy changes. CERD gave Canada until the 8th of April 2019 to respond to our UN CERD submission” added Chief Makinaw.