Treaties and Land Claims: Current Problems

MB


April 23, 2021


Indigenous Laws and Governance

Declaration on Natural Resources on Treaty 5 Territory

Fisher River Cree Nation, Treaty 5 Territory – Manitoba First Nations protest Bill 57 “Protection of Critical Infrastructure Act” — also called the anti-protest bill. Fisher River Cree Nation, Treaty 5 Territory – The Treaty 5 Nations in Saskatchewan, Manitoba and Ontario will resist all permits, licenses or other land dispositions issued by the governments unless approvals are obtained by First Nations in accordance with the Declaration on Natural Resources on Treaty 5 Territory. Treaty 5 covers most of central and northern Manitoba and extends into the Saskatchewan and Ontario borders. The Declaration on Natural Resources on Treaty 5 Territory was adopted at the Summit of Treaty 5 Sovereign Nations on January 27 & 28, 2021. Chief Sheldon Kent, Black River First Nation stated, “I believe the work permits issued by the governments must cease until the baseline and standards are met according to our expectations and approvals. Land allocation disparities and compensation for loss of use are an ongoing concern especially the lack of access of our own resources. New legislative restrictions put in place by Manitoba exasperates this concern.”

Chief David Crate, Fisher River Cree Nation stated: “There is now a paradigm shift on how we deal with natural resource extractions in our territories and its time we deal with this in the spirit of Treaty Justice, Truth and Reconciliation, and United Nations Declaration on the Rights of Indigenous Peoples. As a mover of the declaration, I am fully aware of the challenges ahead to fulfil our Treaty rights. The government has mitigated on the duty to consult doctrine’s intent and purpose to adequately accommodate the First Nations. Proponents such as Berger, Sunterra Horticulture (Canada) Inc. and Sun Gro Horticulture acquire permits to extract peat moss in our territory but have not met our standards and concerns of the wildlife”.


February 1, 2022


Duty to Consult/FPIC

Failure of Treaty Land Entitlements

Southern Chief’s Organization – SCO is calling on the provincial government to put an immediate end to the practice of auctioning off Crown lands without first consulting with First Nations. In January, the province stated it would hold online auctions this week to sell off agricultural Crown land leases and permits. SCO firmly believes that First Nations should be given first option to acquire land that is up for sale.

First Nations were promised land more than a century ago when treaties were signed with the British Crown between 1871 and 1910. The province signed the Manitoba Framework Agreement on Treaty Land Entitlement in 1997 that called for more than a million acres of land to be transferred. A quarter of a century later, only half of that quota has been met. First Nations want to convert the land to use for cultural practices and economic opportunity.

“No matter who is at the helm, the current provincial administration is beholden to The Path to Reconciliation Act,” stated Grand Chief Daniels. “I cannot think of a better time to adhere to the language of that legislation than now. The act clearly states that reconciling the relationship between Indigenous and non-Indigenous peoples in Manitoba should be a priority. I call on Premier Stefanson to honour the act and the Treaties.”
SCO is also concerned that the land auctions are to take place without a formal Treaty Land Entitlement (TLE) agreement for all First Nations in Manitoba. When a First Nation has a formalized TLE in place, it then has the first option to purchase neighbouring Crown land which can be used for critical economic development for its’ community.

“We must be adequately consulted in this process, and the focus should now be on honouring existing agreements and finalizing additional TLE agreements before any more land changes hands.”


January 16, 2022


Duty to Consult/FPIC

Flood compensation after 134 years

CBC – More than a decade after they began, negotiations on flood claim settlements between several First Nations in southeastern Manitoba and northwestern Ontario and the federal and provincial governments appear to be drawing to a close. But some are wondering what those settlements will mean for the First Nations affected — and why it’s taken so long to address flooding caused by dams that were built over a century ago.
Negotiations for the claim settlements began in 2009 between the governments of Canada and Ontario and 13 Treaty 3 First Nations near Lake of the Woods, Shoal Lake and the Winnipeg River. One claim has already been settled (with Rainy River First Nations) and eight more are nearing their final stages, according to the province of Ontario.

The First Nation communities say the Rollerway dam, built in 1887, and the Norman dam, built in 1895 near Kenora, flooded their reserve lands without their consent or compensation.
According to the province of Ontario, the First Nations brought the flooding to the attention of the government of Canada as early as 1887, but no compensation was paid for the damage at that time, and no agreements were put in place to pursue ongoing flooding of the reserve lands.

A provincial website that gives an overview of the Lake of the Woods flooding claims says settlements will include financial compensation for past losses and damages due to flooding of reserve lands as well as an arrangement to address their continued flooding.

Permanent inundation of the First Nations’ shorelines created islands within the reserves where none existed before the dams, according to a fact sheet on the province of Ontario’s website.
In a 1995 paper, researchers with Grand Council Treaty 3 argued that late 19th-century flooding of reserve lands played a major role in the destruction of resources, such as wild rice and fish, for traditional Anishinaabe economies.

The paper includes a quote by a Canadian official from 1868, who reported that the 19th-century Anishinaabeg had “a sort of government … [and] are sufficiently organized, numerous and warlike, to be dangerous,” crediting this to an “abundance of food.”

Settlements to provide compensation for those harms may soon become a reality. Proposed settlements with eight of the 12 remaining First Nations with outstanding claims were expected to be ready for approval in 2021, a province of Ontario website says.

The province says it is currently participating in public engagement on settlements with Animakee Wa Zhing 37, Big Grassy River, Naotkamegwanning, Niisaachewan Anishinaabe Nation, Northwest Angle 33, Ojibways of Onigaming, Washagamis Bay and Wauzhushk Onigum Nation.

Four other affected First Nations — Anishinaabeg of Naongashiing, Buffalo Point, Iskatewizaagegan 39 and Shoal Lake 40 — will be part of a future public engagement, the province says.


May 24, 2020


Duty to Consult/FPIC

Keeyask Hydro Project Duty to Consult Failure

Manitoba Keewatinowi Okimakanak (MKO) Inc.- is issuing this statement along with the four Cree Nations that have entered into a partnership with Manitoba Hydro in the construction and operation of the Keeyask Generating Station in Northern Manitoba. The four First Nations are: Tataskweyak Cree Nation, Fox Lake Cree Nation, War Lake First Nation, and York Factory Cree Nation.

“MKO is pleased that Manitoba Hydro has come to an agreement with the four Cree Nations regarding the Keeyask construction site,” stated Grand Chief Garrison Settee. “It is imperative that corporations working in our territory are full partners and in agreement with plans to open up the North—the First Nations had made it clear for weeks that they were not in agreement with the plans made for the Keeyask project. Their ultimate concern was in protecting their communities from the threat of COVID-19.

The agreement made between the Chiefs and Manitoba Hydro includes the removal of blockades, the lifting of the injunction against Tataskweyak Cree Nation, as well as planning exercises, a move towards implementing the project plan for Keeyask, and an in-person meeting between the CEO and the leadership of the four Cree Nations.


May 20, 2020


Duty to Consult/FPIC

Keeyask Hydro Project Duty to Consult Failure

Amnesty International – Despite legal obligations, Manitoba Hydro has not worked collaboratively to obtain consent to this most recent decision to expand operations (Keeyask Hydro project) and is ignoring requests by the four partner First Nations (Fox Lake, War, York Factory) to limit work at the dam site because of public health concerns. “Every effort must be made to contain the spread of COVID-19,” said Ana Collins, Indigenous Rights Campaign Advisor with Amnesty International Canada. “Indigenous communities in northern Manitoba are rightfully occupying and defending lands to which they still hold inherent title. Yet federal and provincial governments continue to rely upon repudiated papal doctrines of discovery and terra nullius to claim (as in the Haida decision) “presumed Crown sovereignty.”

Without question, these communities have an inherent responsibility and right to control access into their territories to protect their communities from COVID-19 and prevent unsustainable pressure on healthcare systems in rural and remote areas. “In light of the highly infectious nature of COVID-19, and the particular threat that it poses to vulnerable communities with inadequate access to health care, housing, water and other essential services, it is imperative that federal, provincial and territorial governments respect the right of Indigenous peoples to set conditions of entry into their territories. Indigenous communities must be able to restrict access of industry workers, tourists, cottagers, and others. Where Indigenous communities have required suspension of certain activities in their territories, this must be respected.”

Coalition for the Human Rights of Indigenous Peoples

Northern Manitoba First Nations had the highest rates of hospitalizations of all First Nations in Canada during the last H1N1 pandemic. MacLean’s July 16, 2009


October 29, 2021


Aboriginal Rights and Title

Manitoba Métis Section 35 rights

Manitoba Métis Federation – The MMF will be taking the Government of Manitoba to court as a result of Manitoba’s continued attempts to disregard the Manitoba Métis, also known as the Red River Métis, section 35 rights. The MMF also commits to supporting any Métis moose harvesting parties that are wrongfully charged by Manitoba conservation officers. his court case comes after the Government of Manitoba’s repeated attempts to hold the Manitoba Métis inherent right to harvest in the Duck and Porcupine Mountains hostage to unreasonable and unconstitutional restrictions. These harvesting restrictions were developed by the Government of Manitoba without consulting with the MMF and fail to sufficiently protect the rights of Indigenous harvesters.

This action is part of our overall three-pronged approach to protect our inherent right to hunt in the Duck and Porcupine Mountains,” said MMF President Chartrand.

  • “The first prong directly challenges Manitoba’s unconstitutional restrictions of our collective rights;
  • “The second prong is to protect our harvesters who followed our Métis conservation laws but were charged by Manitoba for hunting moose and feeding our families in our traditional ways;
  • “The third is to obtain redress from both Manitoba and Canada for the human and civil rights infractions they made against our harvesters, including an Elder and Youth, by treating them like criminals.”

In addition to imposing unconstitutional restrictions, the Government of Manitoba unilaterally developed a “shared management” process under section 81.1 of The Wildlife Act. This proposed approach has the effect of subjecting the exercise of constitutionally-protected Indigenous harvesting rights to the approval of non-Indigenous hunters. This approach does not satisfy the constitutional protections discussed by the Supreme Court of Canada in cases such as R v. Sparrow, which affirmed that Indigenous peoples must have a priority to harvest wildlife for sustenance and traditional purposes, subject only to measures necessary to conservation.


May 14, 2021


Aboriginal Rights and Title

Summit of Treaty 5 First Nations Declaration on Natural Resources on Treaty Territory

NationTalk – O-Pipon-Na-Piwin Cree Nation, Treaty 5: The Summit of Treaty Five Sovereign Nations comprising of 40 First Nations in Manitoba, Saskatchewan and Ontario will stand with the Treaty 5 First Nations and individual Treaty 5 holders who will be adversely impacted by the issuance of a permanent licence for Churchill River Diversion, Lake Winnipeg Regulation and Jenpeg Generating Station in Manitoba. There are numerous First Nations that are directly impacted.

On May 13, 2021, the Manitoba Conservative government unilaterally made the decision to issue these licences which infringe on the Aboriginal and Treaty rights and will have an adverse cumulative impact on the environment by Hydro development. Once again, inadequate consultations; a legal obligation Manitoba holds, and an absence of meaningful accommodation are echoed among Treaty 5 people. With the increased concerns on the lack of fulfillment of the Treaty provisions, the Summit of Treaty Five Sovereign Nations recently adopted the Declaration on Natural Resources on Treaty Territory, which they vow to uphold.

Chief Clarence Easter, Chemawawin Cree Nation said, “Our history began many centuries before Canada became a country. Our ancestral lineage to this land is sacred and immemorial. Our homelands have never been surrendered, released, or been conquered. Indigenous people allowed access to the land to build this great country. Time is long-overdue for our Treaty partners to respect Indigenous nations power to decide our own fates according to inherent jurisdictions. While this country flaunts the flag of reconciliation, we are once again seeing an erosion of the spirit and intent of the Treaty: to share the land. Having said that, I think it’s a travesty that the province of Manitoba is not following the rule of law on consultation and section 35 of the constitution that recognises our rights regarding hydro development in the north.”

Chief Sheldon Kent, Black River First Nation stated, “Regardless of continued opposition to this project and continued demands for fair and adequate consultation, regardless of Canada’s recent adoption in principle of UNDRIP’s standards to provide free prior and informed consent, Manitoba has made the decision to grant a permanent license for the Churchill River Diversion, once again leaving First Nations as an afterthought. We have time and time again honoured our Treaty by sharing the land and resources while the provinces reject our participation and leave us impoverished economically, socially and, without access to lands for ceremony. There is no honour of the Crown when it refuses to work with First Nations as equal partners and, instead commits ongoing cultural genocide by eroding our livelihood and the articles of Treaty.”