Treaties and Land Claims: Current Problems

ON


July 16, 2021


Land Claims

1492 Land Back Lane

Brantford Expositor – In late June, the developers sent letters to about 180 homebuyers saying that, having exhausted their legal options and with no prospect of the occupation ending, the company was scrapping the planned subdivision and cancelling all purchase agreements. The company has filed a $200-million class-action lawsuit against the Attorney General of Canada, the province, the OPP, the Ontario Federation of Labour, land defenders and their supporters. The lawsuit alleges material and reputational damage to the company and seeks financial restitution for Foxgate and the McKenzie homebuyers. Liske said the suit has not yet been served to any of the defendants and that the company has until September to do so.


March 30, 2021


Land Claims

1492 Land Back Lane

The Ontario Provincial Police (OPP) spent $16.3 million in just half a year policing the 1492 Land Back Lane protests. Funds covered salaries, round-the-clock overtime, food, hotels, travel costs, supplies, equipment, building rentals and other related expenses between July 2020 and January 2021.


October 22, 2020


Land Claims

1492 Land Back Lane

Toronto Star – Ontario court issues a permanent injunction in favour of Foxgate and Haldimand County against the Haudenosaunee protesters. The Haudenosaunee Confederacy Chiefs Council, Six Nations traditional government, does not recognize the jurisdiction or authority of the Six Nations’ Elected Council, the colonial construct of The Indian Act The Six Nations Elected Council has been fighting for resolution to existing land claims on the Haldimand Tract since1980 managing to resolve one out of 29 submitted claims between 1980 -1995. Given the failure of the Claims process the band took the federal and provincial governments to court that has been languishing in the court system with a trial date scheduled for 2022. This is where Haldimand County believes the protesters should seek resolution. The reality is that there should be no development until the land claim is resolved. If the Haudenosaunee can wait over 200 years and especially over the last 40 years, they can wait a few years themselves.


September 17, 2020


Land Claims

1492 Land Back Lane

EyeOpener – Protesters have occupied so-called Mackenzie Meadows, bordering the town of Caledonia and the Six Nations reserve, since July 19 in opposition to the housing development of the neighbourhood by Foxgate Developments Inc. The site is under the sovereignty of the Haudenosaunee First Nation as one of their last unceded territories under the 200-year-old Haldimand Proclamation. Today, it has become an encampment for protestors, featuring art such as a shipping container spray painted with the site’s unofficial title: 1492 Land Back Lane. ‘


September 12, 2020


Land Claims

1492 Land Back Lane

Toronto Star – The Ontario Provincial Police (OPP) armed with a court injunction arrested 26 people including 2 journalists and an Indigenous academic researcher.


March 16, 2021


Aboriginal Rights and Title

Batchewana First Nation exercises treaty rights for logging

Sault Online – Open Letter from Batchewana First Nation – outlining numerous grievances with the government of Ontario for their ongoing failure to uphold the “honour of the crown” by continuing intrusions of our inherent sovereignty and unextinguished jurisdictions over the lands in Eastern Lake Superior and the lands in direct proximity.

In direct response Batchewana First Nation declares that: “As of May 1, 2021, BFN Loggers will commence operations in its original territories outlined in our historically founded documentation and accepted by the courts. BFN will be issuing logging permits based on BFN’s inherent law and unextinguished sovereignty. Given the above information, it is our expectation that BFN Loggers will be logging without the fear of prosecution by Ontario. If BFN’s logging operations are met with prosecution, then BFN will take further next-steps as necessary.

BFN has been on the outside of the logging industry looking in, at Ontario’s endorsed loggers, which includes clear-cutting forests for corporate interests. Ontario promotes a flawed, illegal assertion of jurisdiction over logging and the remedy for Ontario is for us to enter into their illegal regime and seek a license from a settler government to manage BFN forests. BFN cannot condone this course of action any longer.
This action follows on a series of ongoing issues such as:

Specifically:

  • Allowing benzene – a recognized carcinogen – to be discharged over their lands next to Algoma Steel for another year
  • Implementing forest management systems that endorse and promote clear cutting and utilizing harmful aerial spraying of glyphosate to the detriment of the flora and fauna, trees, big game population, fish, and many more areas
  • As recent as 1944, Ontario illegally developed and imposed Lake Superior Provincial Park; forcibly removing the Indigenous People of Batchewana. The Court in R v. Dean Sayers and Batchewana First Nation of Ojibways, 2015, OCJ, provided an expectation that Ontario adhere to the “honour of the Crown”. Ontario has not followed up nor shown any initiative in having these legal issues resolved.
  • Ontario has also removed BFN from fulfilling our inherent rights to protect and work with all of the animals that are currently being eradicated under Ontario‘s trapping regulations.

January 14, 2021


Aboriginal Rights and Title

Bill 197 (COVID-19 Economic Recovery Act, 2019) violates Treaty Rights

NationTalk – Following the declaration of a second state of emergency on Jan. 12, 2021 due to the COVID-19 crisis, the Matawa Chiefs Council are issuing a public statement that the Matawa Chiefs Council reject the Ontario government-imposed deadline of Thursday January 14, 2021 for comments related to Ontario’s proposed revisions of the Far North Act, 2010 and demand that the Premier of Ontario and the Minister of Natural Resources and Forestry Hon. John Yakabuski halt the inappropriate and continued attempts of the Ontario government to proceed with engagement activities on legislation impacting the Inherent Aboriginal and Treaty Rights of First Nations at this time. The land Ontario refers to as the Far North is predominantly land subject to the James Bay Treaty # 9 (1905-06 and 1929-30).


September 7, 2020


Aboriginal Rights and Title

Bill 197 (COVID-19 Economic Recovery Act, 2019) violates Treaty Rights

Law Times – Environmental groups and First Nations are challenging the Ontario Government’s changes to environmental legislation contained in Bill 197 The COVID-19 Economic Recovery Act. The amendments are a violation of s. 35 of the Charter, which recognizes and affirms existing Aboriginal and Treaty rights.


August 28, 2020


Aboriginal Rights and Title

Bill 197 (COVID-19 Economic Recovery Act, 2019) violates Treaty Rights

The Matawa Chiefs Council – who represent 9 First Nations, issued this statement today rejecting the Ontario Crown’s tactics to unlawfully access the wealth of the north. The Ontario government has used the cover of COVID-19 to make legislative, regulatory and policy changes that attempt to diminish the obligations of Ontario to honour the constitutionally-protected Inherent Aboriginal and Treaty Rights of First Nations across Ontario.


August 10, 2020


Aboriginal Rights and Title

Bill 197 (COVID-19 Economic Recovery Act, 2019) violates Treaty Rights

The Timmins Daily Press – Mushkegowuk Council is calling on the province to honour the treaty it signed 115 years ago. Treaty 9 was signed between First Nations leaders and Canadian political figures to establish guidelines around resources and projects on First Nations land. Grand Chief Jonathan Solomon called Bill 197 a “major step back” that “abolishes many of the environmental assessment rules that have been in place for decades.” Solomon explained that a treaty was signed because it recognized the Mushkegowuk/Ininiwuk peoples as a nation, which had its own governance, laws, language, culture, among others.Mushkegowuk’s grand chief said the agreement signed in 1905 was a “‘nation-to-nation sacred treaty,” noting that Canadian courts have deemed the oral promises made were “as much a part of the binding treaty as the words written on the treaty parchment.”

Solomon added that if the province is interested in receiving consent for resource, forestry, mining and other development projects on Indigenous land, it must be done in consultation with First Nations from the beginning. “You will need to show how these projects respect the integrity of our environment. Further, you will need to demonstrate how these projects will benefit the Omushkego/Ininiwuk. That has not changed, despite Bill 197.”


July 24, 2020


Aboriginal Rights and Title

Bill 197 (COVID-19 Economic Recovery Act, 2019) violates Treaty Rights

NationTalk – Bill 197 (COVID-19 Economic Recovery Act, 2019), an omnibus bill introduced on July 8 and passed just 13 days later on July 23 with little legislative debate and no Standing Committee consideration, and without public consultation on the changes to the Environmental Assessment Act (EAA) despite warnings from Ontario’s Auditor General that this violates the Environmental Bill of Rights. The Bill allows for major changes to the EAA while offering few concrete details, leaving important decisions to be implemented through regulations that are not yet known and which will not be subject to legislative approval. Major changes to the Environmental Assessment Act (EAA) could significantly weaken environmental protections and impact Inherent, Aboriginal, and Treaty rights, all under the guise of COVID-19 response.

On the same day that Ontario introduced Bill 197, it gave public notice of just 45 days to review and comment on a package of other proposed changes to the EAA and related regulations relating to mining, hydro transmission, municipal environmental assessments, flood and erosion control, waterpower projects, resource stewardship and facility development, transportation, public works, amendments to environmental assessments, land claim settlements, projects within provincial parks and conservation reserves, and two specific major transportation projects. These changes are part of an ongoing effort by this government to overhaul Ontario’s environmental protection regime, in support of its promise to “cut red tape” in support of economic interests.

As a community with a high poverty rate, Fort Albany understands the need for economic opportunity. However, development must be ecologically responsible and culturally sustainable. At a time when the whole world is facing unprecedented climate change and biodiversity loss, development must be supported with more and better environmental protections, not fewer. Any changes to environmental protections are important for us, because the exercise of our Inherent, Aboriginal, and Treaty rights is inherently connected to the wellbeing of the environment. However, the government is unilaterally introducing major changes with the knowledge that our community is under pressure and constraints due to COVID-19, and that we do not have the resources or capacity to meaningfully engage. This is not honourable, and it disrespects our relationship with our territory and our role as a Treaty No. 9 partner.

We call on the Government of Ontario to repeal Bill 197, and to design a more appropriate process for reform of the EAA in full partnership with Indigenous groups, with the principles of robust environmental protection, public participation, and respect for Indigenous rights at its heart.


February 18, 2021


Duty to Consult/FPIC

Failure to consult First Nations around Mining projects in their territories

WindSpeaker – “It must be acknowledged that the 15 proposed mining projects that are planned for the next decade are on the ancestral, inherent, customary, traditional lands of many First Nations in Northwestern Ontario and that their free, prior, informed consent will be required before any development proceeds.” — Jason Rasevych, president of the Anishnawbe Business Professional Association (ABPA).

Rasevych points out the CEDC consulted with 25 organizations while preparing its strategy report. Yet only one Indigenous organization, the Nishnawbe Aski Development Fund, was asked for its input. “Too often, First Nation’s socio-economic interests are an afterthought, resulting in delays in mine permitting, regulatory processes and ultimately the social license of Indigenous peoples,” he said. “There is also constitutionally protected rights and Treaties that must be honoured to respect the Indigenous peoples that have lived off the land since time immemorial.”

Rasevych was disappointed that First Nations, tribal councils and even the ABPA were not sought out to provide advice. “We would have thought we’d be a no-brainer to be a part of this study,” said Rasevych of his association, which was founded in 2019. Besides consulting with Indigenous communities, Rasevych said it is vital that any mining projects also include opportunities for Indigenous people to have active roles with their development. “First Nations require direct economic benefits in mining, and many are seeking a greater role in ownership of mines, power generation, and transmission projects to supply not only the mining site but also close the loop on legacy issues and their First Nation’s community needs,” he said.


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.”


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.


November 15, 2021


Land Claims

Grassy Narrows Land Declaration

Toronto Star – The government was knowingly using an outdated and inaccurate map (30 years old), members of First Nations charge, green-lighting drilling and excavation areas where the residents say they go for moose hunting, picking berries and camping. The First Nations says it has provided the government with an updated map of the area – what is now called an Indigenous Sovereignty and Protected Area – multiple times over the last decade. “Our land and our way of life are already at the breaking point because of the ongoing impacts of residential schools, hydro dams, mercury poisoning and clear-cut logging, said JB Fobister, Grassy Narrows spokesperson.” Mining, he added, would “further fragment and degrade” the environment.


April 12, 2021


Land Claims

Grassy Narrows Land Declaration

Toronto Star – The Ontario government has allowed up to 4,000 mining claims in Grassy Narrow territory ignoring the “the land declaration that Grassy Narrows enacted in 2018 to ban industrial or mining activities on their territories?” Since the land declaration “the area covered by mineral claims has expanded fourfold, spreading across forest, rivers and lakes…Grassy Narrows leaders and community leaders are troubled that the Ontario government seems to be rolling out the red carpet to mining prospectors while dragging its feet in investigating and excavating the two alleged toxic mercury dump sites near a paper mill property downstream in Dryden, Ontario.

The mining claims fall within the boundary of a proposed Indigenous Protected and Conserved Area that Grassy Narrows has been working with the federal government to setup. Trillium Gold, a BC-based mining company has proposed what would be the “the largest mining exploration project by far in its territory”. The establishment of an IPCA is aimed to safeguard Indigenous rights – including the right to exercise free, prior and informed consent – while maintaining biodiversity and securing a space where communities can practice indigenous ways of life. The chief called for an immediate freeze on claim staking and mining exploration on the territory until the crisis is over. (COVID-19 pandemic)


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


January 21, 2022


Indigenous Laws and Governance

Natural Laws of the Creator

Northern Ontario Business – On Wednesday, Jan. 19, Attawapiskat, Fort Albany, Neskantaga, Kashechewan and Eabametoong First Nations chiefs sent a joint letter to federal Minister of Environment and Climate Change Steven Guilbeault.

According to the letter, the chiefs met virtually with Guilbeault on Jan. 17 and expressed concerns about the terms of reference (TOR) for the Regional Impact Assessment (RIA) in the carbon-rich peatlands known as the “Breathing Lands”. “These are the world’s lungs, and rampant mining development could not only destroy this globally critical carbon sink but release its huge store of carbon and escalate climate change further into catastrophe,” reads the letter.

The chiefs said there needs to be an Indigenous-led investigation and decision-making process regarding the Breathing Lands and called Canada to restart “afresh” with Indigenous nations mutually and equally participating in developing, enforcing and leading the RIA. “What Canada, in agreement with Ontario, plans to do is far from proper or safe, and instead promotes recklessness and danger,” reads the letter. “Your draft TOR is narrow in geographic and activity scope, and wrongly excludes us Indigenous peoples from all but token roles.”

“Any attempt by the Crown to come back with less than the equality we have asked for and deserve, and which the fight against climate disaster needs, will be seen as nothing but an attempt to dress up a broken window with pretty drapes,” the letter states. “And any such attempt will lead to our active enforcement of the Moratorium issued last April.” “We will not accept mere “participation” in a unilateral, top-down, Crown-led process that ignores our jurisdiction, laws, and responsibilities,” they said in the letter.


April 5, 2021


Indigenous Laws and Governance

Natural Laws of the Creator

NationTalk – Attawapiskat, Fort Albany, and Neskantaga First Nations in the James Bay lowlands have declared a moratorium on April 1 on any development in or to facilitate access to the Ring of Fire mining area in accordance with:

  • Our Indigenous Laws including the Natural Laws of the Creator;
  • Our Inherent Rights (arising from the reality that we have always have been “in here” in this place in the world);
    Treaty No. 9 between our First Nations and the Crown;
  • International laws including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its requirements for free, prior and informed consent, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and customary laws that protect our right to self-determination, require environmental due diligence, and prohibit destruction of our ability to survive in our environments; and
    Canadian domestic laws that adopted and intend to implement UNDRIP (such as the federal Bill C-15); the federal Impact Assessment Act (IAA); Canada’s Constitution including section 35 affirming our Aboriginal and Treaty Rights, and the Charter section 7 being the right to life, liberty and security of the person.

This MORATORIUM is declared from this date and shall stand intact unless and until Canada and Ontario act in accordance with their obligations under the laws stated above, in respect of the Ring of Fire, and agree to a Regional Impact Assessment (RIA).

This MORATORIUM is declared because Canada, through the Impact Assessment Agency of Canada (IAAC) has breached the honour of the Crown, all the laws stated above, and the project of reconciliation and decolonization by acting with duplicity behind our backs in collaboration with Ontario, to render the RIA little but political puffery, with mere token First Nation “involvement”, narrow in its focus and weak in its result.

Specifically:

  • Shortly after the IAA came into force in 2019, some First Nations and others requested an RIA under it for the Ring of Fire;
  • Due to these requests, and given that the Ring of Fire begs for an RIA anyway – it is by definition a regional area for which much large scale mining and infrastructure development is sought – Canada agreed that a RIA would be held;
  • First Nations have expressed our expectation of equal partnership in the RIA, and have been requesting since early 2020 to have the RIA, including planning, not commence until after the pandemic and the crises it has caused in the First Nation communities are over, to ensure that First Nations could engage in this process safely and in accordance with our Laws and Customs;
  • Canada agreed to such suspensions of time, and gave assurances that First Nations would have meaningful involvement at all stages of the RIA, including planning;
  • First Nations have put Canada on notice since late 2020 that they intend to develop a proposal for a First Nations – led, comprehensive and meaningful RIA that does not allow Crown governments to use it as a mere window dressing, box-ticking exercise;
  • Despite Canada knowing of First Nations’ intent and agreeing to time to develop this proposal after the pandemic crisis had ended, Canada now informs us it effectively had no intent of paying any attention to any such proposal; and that Canada and Ontario have been collaborating behind First Nations’ backs for the last year to agree on the terms of reference for the RIA which they will show us in April “for comment”, and in which First Nations have nothing but token involvement.

https://nationtalk.ca/story/first-nations-declare-moratorium-on-ring-of-fire-development


November 30, 2021


Duty to Consult/FPIC

Neskantaga FN sues government

CBC – Neskantaga First Nation is taking Ontario to court looking for “ground rules” on how the province should consult and accommodate Indigenous communities that are in a state of crisis.

For example:

  • Forced evacuation of entire reserve in October 2020 (300 people) due to tainted water
  • Under boil water advisory for 26 years
  • State of emergency since 2013 after 7 people committed suicide in less than a year
    six per cent, or 12 of the 217 members living off-reserve, have tested positive for COVID-19

Those issues have been compounded by the pandemic, leaving Neskantaga ill-equipped to engage in what the province has presented as consultation on a project to build a road through its territory to the mineral-rich Ring of Fire, community leaders say. The lawsuit, filed with the Ontario Superior Court of Justice on Nov. 23, says the First Nation is looking for clarity after its “recent experience of inadequate consultations on a component of a larger road project that will run through [the First Nation’s] homelands,” and that the province’s Environmental Assessment Act “is completely silent” on how to consult Indigenous communities in crisis.


February 24, 2021


Duty to Consult/FPIC

Neskantaga FN sues government

CBC – A state of emergency has been declared by Neskantaga First Nation after a number of its members living off-reserve tested positive for COVID-19.

Chief Chris Moonias says six per cent, or 12 of the 217 members living off-reserve, have tested positive for the virus. That includes one person in critical condition at the Thunder Bay Regional Health Sciences Centre. The declaration requests that Indigenous Services Canada fund emergency housing “to accommodate the homeless population who have been forced off-reserve due to a lack of housing,” Chief Moonias added this means members of the First Nation often leave and end up in urban centres like Thunder Bay, Ont., where “some of them fall into homelessness, mental health issues and addictions.”

A fact sheet accompanying the press release explained that the community doesn’t have capacity to support necessary isolation for Neskantaga citizens that want to return home. That’s on top of the existing water, health, social services and other infrastructural deficits in the First Nation as a result of chronic underfunding.


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.


April 20, 2022


Land Claims

Robinson-Huron and Superior Treaties, 1850

NationTalk: Robinson Huron Treaty Territory — The Robinson Huron Treaty Litigation Fund (RHTLF) leadership, Ontario and Canada officials have established a negotiation table to find common ground for resolving the annuities litigation outside of court.

The Robinson Huron Treaty First Nations have outstanding litigation against both Canada and Ontario relating to treaty annuities. There is much work to be done, with a spirit of cooperation and partnership, to advance these important discussions and find a good way forward towards a negotiated resolution.

“We are pleased to be in a place where we are talking about negotiating a resolution to our annuities case outside of the court. We have always known that reconciliation will not happen in the courtroom,” said Chief Dean Sayers.

Ogimaa Duke Peltier added “It has been a long journey to get to this point and we are ready to work with our treaty partners toward a settlement. We remain grounded in our commitment to ensure the Robinson Huron Treaty is implemented.”


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.


June 9, 2020


Duty to Consult/FPIC

Using COVID to deny Duty to Consult

CBC – Nine faculty members at York University’s Osgoode Hall Law School are calling on the provincial government to press pause on mineral staking and permitting processes on Indigenous territory in light of the COVID-19 pandemic. In a letter addressed to Greg Rickford, the province’s minister of energy, northern development and mines state that continued exploration is putting an undue burden on remote northern communities, and making it too difficult for meaningful consultation to take place.

“We didn’t think it’s lawful the way they’re proceeding with mining as usual in the context of a global pandemic,” said Dayna Scott, an associate professor at the school and in the faculty of urban and environmental change at York, and the primary author of the letter. “And that’s in particular because many of the remote Indigenous communities that we work with in Ontario are expressing extreme difficulty in managing the sort of day-to-day work that needs to be done in governing their communities in the context of the pandemic.”


May 22, 2020


Duty to Consult/FPIC

Using COVID to deny Duty to Consult

Policy Options – “Pandemic shouldn’t impede meaningful Indigenous engagement on Ring of Fire”. Ontario government announced that “a regional assessment of potential mining operations for the Ring of Fire will be undertaken”. The announcement only posted on the agency website severely impacts the ability of First Nations to meaningfully engage in the consulting process. Only those registered on the email distribution received the email notification that:

  • Agency suspended all face-to-face meetings
  • Cancelled all engagement activities
  • Agency will continue to develop a regional assessment and plan with a much more constrained engagement

As evidence demonstrates, inadequate internet access and a lack of cellular networks access to remote regions in Northern Ontario put First Nations at a greater disadvantage in efforts to participate at a distance during the global pandemic. For remote First Nations in Northern Ontario, the agency must work harder to ensure that the voices of communities implicated in the Ring of Fire regional assessment are not further silenced by the ongoing COVID-19 pandemic. Vague statements such as the one released to the email distribution list do little to provide implicated communities, organizations, and individuals the clarity required to adequately adjust and prepare for consultation opportunities once the threat of COVID-19 subsides.

In the meantime, it is imperative that First Nation community members and leadership, scholars, activists, policy-makers, consultants and other groups interested in Ontario’s Ring of Fire remain as vigilant as possible during COVID in monitoring developments in the region and ensuring major decisions are not made without critical thought or meaningful Indigenous and public engagement.


April 5, 2020


Duty to Consult/FPIC

Using COVID to deny Duty to Consult

NationTalk – Attawapiskat, Fort Albany, and Neskantaga First Nations in the James Bay lowlands have declared a moratorium on April 1 on any development in or to facilitate access to the Ring of Fire mining area in accordance with:

  • Our Indigenous Laws including the Natural Laws of the Creator;
  • Our Inherent Rights (arising from the reality that we have always have been “in here” in this place in the world);
  • Treaty No. 9 between our First Nations and the Crown;
  • International laws including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its requirements for free, prior and informed consent, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and customary laws that protect our right to self-determination, require environmental due diligence, and prohibit destruction of our ability to survive in our environments; and
  • Canadian domestic laws that adopted and intend to implement UNDRIP (such as the federal Bill C-15); the federal Impact Assessment Act (IAA); Canada’s Constitution including section 35 affirming our Aboriginal and Treaty Rights, and the Charter section 7 being the right to life, liberty and security of the person.

This MORATORIUM is declared from this date and shall stand intact unless and until Canada and Ontario act in accordance with their obligations under the laws stated above, in respect of the Ring of Fire, and agree to a Regional Impact Assessment (RIA)

This MORATORIUM is declared because Canada, through the Impact Assessment Agency of Canada (IAAC) has breached the honour of the Crown, all the laws stated above, and the project of reconciliation and decolonization by acting with duplicity behind our backs in collaboration with Ontario, to render the RIA little but political puffery, with mere token First Nation “involvement”, narrow in its focus and weak in its result.

Specifically:

Shortly after the IAA came into force in 2019, some First Nations and others requested an RIA under it for the Ring of Fire;

  • Due to these requests, and given that the Ring of Fire begs for an RIA anyway – it is by definition a regional area for which much large scale mining and infrastructure development is sought – Canada agreed that a RIA would be held;
  • First Nations have expressed our expectation of equal partnership in the RIA, and have been requesting since early 2020 to have the RIA, including planning, not commence until after the pandemic and the crises it has caused in the First Nation communities are over, to ensure that First Nations could engage in this process safely and in accordance with our Laws and Customs;
  • Canada agreed to such suspensions of time, and gave assurances that First Nations would have meaningful involvement at all stages of the RIA, including planning;
  • First Nations have put Canada on notice since late 2020 that they intend to develop a proposal for a First Nations – led, comprehensive and meaningful RIA that does not allow Crown governments to use it as a mere window dressing, box-ticking exercise;
  • Despite Canada knowing of First Nations’ intent and agreeing to time to develop this proposal after the pandemic crisis had ended, Canada now informs us it effectively had no intent of paying any attention to any such proposal; and that Canada and Ontario have been collaborating behind First Nations’ backs for the last year to agree on the terms of reference for the RIA which they will show us in April “for comment”, and in which First Nations have nothing but token involvement.

https://nationtalk.ca/story/first-nations-declare-moratorium-on-ring-of-fire-development