Treaties and Land Claims: Current Problems

Aboriginal Rights and Title

June 28, 2022


‘They beat us into submission’: West Moberly’s decades-long fight against Site C dam is over

West Moberly First Nations reluctantly signed a settlement seven years into construction on the beleaguered hydroelectric project on the Peace River in northeastern B.C.

The Narwhal: After a decades-long fight against the Site C dam, Monday was a bittersweet day for West Moberly First Nations Chief Roland Willson. 

The Nation and the province announced a partial settlement agreement has been reached over the beleaguered hydroelectric project on the Peace River in northeastern B.C., which will see the release of West Moberly’s claims against the Site C project in exchange for an impact and benefits agreement and contracting opportunities. 

“Site C has progressed to a point where it is unlikely that any judge will order the dam dismantled. Because of this, we have reluctantly agreed to settle that portion of our court case related to Site C,” read a statement from West Moberly First Nations. “The final nail in the coffin was a while ago,” Chief Roland Willson told The Narwhal. “They had no intention of stopping.”

“We’re never going to be in agreement with Site C. That’s never going to happen. And every time we drive by that development it’s going to be a constant reminder of what’s been done to us,” Willson said. “Forcing us into this situation like this is not something to be proud of. They beat us into submission, basically.” 

A 2014 federal-provincial review of the Site C dam found the project would cause “significant adverse effects” to First Nations’ fishing, hunting and trapping. Construction on the project began in 2015, with then-premier Christy Clark vowing to get the project past the “point of no return.” In 2019, the United Nations Committee on the Elimination of Racial Discrimination called for the B.C. government to suspend construction of the Site C dam until the project obtained the “free, prior and informed consent” of Indigenous Peoples, but construction continued. 

Asked about the toll fighting the dam for three decades has taken on his Nation, Willson said “it’s massive.” 

“We’ve expended an enormous amount of energy, an enormous amount of goodwill from our supporters. And that’s the sad part of this is we kinda feel we’ve let people down. But the reality is we’ve done everything that we could do to try to stop this and they just kind of ran over us,” he said. “We’re at the point now where we’ve got to pick up the pieces.” 

The Site C dam is a 1,100 megawatt hydro dam that has been proposed as the third dam on the Peace River since the 1970s. The cost of the project has ballooned from $7.9 billion since 2014, when it was reviewed by a federal-provincial panel, to over $16 billion, making it both the costliest dam in Canadian history and the most expensive publicly funded infrastructure project in B.C. history. When Site C is completed, it will flood 128 kilometres of the Peace River and its tributaries, putting Indigenous burial grounds, traditional hunting and fishing areas, habitat for more than 100 species vulnerable to extinction and some of Canada’s richest farmland under up to 50 metres of water.

In its decades-long fight against the dam, West Moberly First Nations launched judicial reviews and made an injunction application, before filing a civil lawsuit against the province.  West Moberly will direct the benefits of the Site C settlement toward reclaiming and restoring land, revitalizing the community’s culture and “protecting the best of what’s left.” 

The remainder of the civil claim, which relates to the cumulative impacts of resource development and previous dams on the Peace River, has not been settled but has been paused while the Nation and the province enter confidential discussions to resolve matters. “I appreciate that it has been a difficult decision for West Moberly to resolve its claims against Site C,” Chris O’Riley, president and CEO, BC Hydro said in a joint press release. “These agreements provide us a foundation to move forward together in a manner that fosters a mutually beneficial relationship.”

Site C dam ‘should have never gotten to this stage’ 

Peace Valley farmer Ken Boon, an outspoken critic of the Site C dam, said the settlement agreement seemed “inevitable.”  “I tip my hat to West Moberly. They truly tried to stop this dam and save the valley and unfortunately that wasn’t to be,” he said. Boon had hoped that the West Moberly fight would help light a way forward to resolve this type of conflict differently in the future, but he doesn’t feel hopeful after reading the comments from government and BC Hydro in their press release on the settlement. 

“On the surface, I don’t see any change from the government or BC Hydro’s perspective on how projects will be brought forward or moved forward and that’s what we need. We can’t afford to do any more bad projects like this in the face of climate change and reconciliation,” Boon said. “We’ve got to have a better way of advancing projects. It should have never gotten to this stage.”

Asked if the fight against Site C is officially over, Boon said: “If anything is going to stop it now, it’s probably going to be geotechnical problems.”

An investigation by The Narwhal’s Sarah Cox in 2020 revealed that senior officials with the B.C. government knew about deepening geotechnical problems and budget issues for more than a year before the public was informed.  “We’ve already seen how the B.C. government and BC Hydro will literally move mountains of dirt and mountains of money to keep this thing going and I expect they’ll continue doing that and probably get a project built,” Boon said.

September 20, 2020

AB, Fed. Govt.

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.

March 16, 2021


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:


  • 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


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


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


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


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


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.

November 24, 2021

AB, BC, Fed. Govt.

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

December 11, 2021

BC, Fed. Govt.

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.

May 11, 2021

Fed. Govt., NT

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

Fed. Govt., NT

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.

May 24, 2019


Heitsuk Nation arguments ignored by Appeal Court

Heiltsuk Nation – the B.C. Court of Appeal handed down a decision that reduces the power of provinces to protect lands and waters from inter-provincial infrastructural projects and that fails to recognize the role of Indigenous peoples in protecting the environment. Heiltsuk and Haida made arguments related to their inherent Indigenous title and rights and addressed gaps in the existing spill response framework that B.C.’s proposed legislation would address.

However, today’s reasoning makes no mention of Indigenous arguments, instead referring solely to federal and provincial jurisdiction. Ignoring Indigenous jurisdiction reflects continued unwillingness to take practical steps towards reconciliation and recognition of title and rights in the real world.

Heiltsuk’s experience with the Nathan E Stewart oil spill brought to light gaps in federal spill response that…were not even addressed by the court and, as a result of today’s decision, they remain in place:
Gaps in compensation for Indigenous losses because compensation under Canada’s Ship-source Oil Pollution Fund and Marine Liability Act’s definition of “pollution damage” focuses exclusively on “loss of profit”, ignoring the devastating impacts spills may have on food, social, and ceremonial losses.

No requirement for a robust Environmental Impact Assessment: An environmental impact assessment is critical to understanding both the short and long-term effects of an oil spill on the natural environment.

October 29, 2021


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.

February 23, 2022

Fed. Govt., ON

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

June 13, 2022

Fed. Govt., ON

Matawa Chiefs’ Council work towards solidifying approach to Ring Of Fire Regional Environment Assessment

NationTalk: TORONTO, ON: Chiefs of the Matawa First Nations of Northern Ontario announced today they are working towards solidifying a regional approach to the federal Impact Assessment (IA) in the Ring of Fire. This announcement was made during the Matawa Chiefs Council’s participation in the Prospectors and Developers Association of Canada’s 2022 convention which was hosted in person in Toronto from June 13-15 and online from June 28-29.

In addition to  previous approaches to work with federal/provincial governments on the issue—some of the areas they are reviewing, amongst others, are: Constitutional level impacts, previous work on decision-making, strengthening relationships with other First Nations who share the same watershed, community and other reports on the matter, and their 2021 call for meaningful and significant inclusion of First Nations in the federal Impact Assessment Agency process for the proposed Ring of Fire development Regional Assessment which, to-date, has not been answered.

As part of their meeting that took place on June 11 and 12, 2022, the Matawa Chiefs Council are looking at jointly run studies and a process that focus on the ‘big picture’ of multiple projects throughout shared lands. They also discussed how they can work collaboratively to form a committee/Indigenous Governing Body/Commission to oversee and co-lead the Regional Assessment and how they can move forward with an opportunity to involve communities together in a new way on a core set of priorities and objectives. They discussed how the work would potentially link to national or international obligations, such as climate change commitments and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). They also discussed ways a regional assessment process can be set up for the people from the Matawa communities to have an opportunity for a direct voice in a different way that they have in the past.

While no decisions have yet been made, the Matawa Chiefs Council will be continuing their discussions on the regional approach at their 34th Annual General Meeting scheduled to take place in Webequie First Nation from July 26 – 28, 2022.

“Ginoogaming First Nation is a signatory to Treaty #9 historically as Long Lake #77,  and will participate within the Spirit and Intent of Treaty #9 to share the land and resources. Although now that the Federal and Provincial governments hide behind non-derogation clauses and process, it is important for our People to begin taking a position on lands and resources based on Treaty.”

– Chief Sheri Taylor, Ginoogaming First Nation

“We fully understand that it is not just 1 corridor is needed to be opened for mining, it’s really a thousand corridors that will open from that 1 corridor.  Because there isn’t a road into our territory—our People are free to live our Anishinabek identity. We need Mother Nature to be intact to nurture us in our healing from colonization in Canada.”

— Ogamakan Michael Sugarhead, Nibinamik First Nation

“We will not lose our voice for the land. We will not give up on our responsibility to speak and advocate for the land which forms our way of life. Any changes to it will be irreversible and we take that very seriously because losing our land to development has great potential to be tantamount to the genocide of our People. We want a process that respects First Nations’ protocols and our People need to have a direct voice.”

— Chief Wayne Moonias, Neskantaga First Nation

“A re-focus on how impact and environmental assessments are done in northern Ontario is needed. A decade has passed since we began talking about the Ring of Fire, and from our perspective, we are nowhere near resolution on the matter. Canada’s reconciling of their relationship with Indigenous People must include the stopping of its continued infringement of Inherent, Aboriginal, and Treaty rights.”

— Chief Ramona Sutherland, Constance Lake First Nation

March 8, 2022

BC, Fed. Govt.

Nuchatlaht Nation Aboriginal Title case with BC Supreme Court – 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.

July 20, 2020


Omnibus Bill 22 and Honour of the Crown

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

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

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

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

January 22, 2021

AB, Fed. Govt.

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.

January 18, 2022


Québec Summit on Land Use Planning

Assembly of First Nations Québec-Labrador – AFNQL Chiefs are opposed to any form of government strategy, policy, or development project impacting their territories without, as a priority, being actively involved in discussions. “This announcement is yet another announcement that illustrates the lack of sensitivity, even contempt of the CAQ government towards our territories,” said Interim Regional Chief Lance Haymond. It is, moreover, in this context that last Fall, the AFNQL Chiefs in Assembly adopted a Territorial Declaration to officially advise the Quebec government that First Nations’ elected officials would not hesitate to use all means at their disposal to protect their territories and their inherent, ancestral and treaty rights from any action or policy put forward by the province that is prejudicial to their peoples.

On January 13th, 2022, the Assembly of First Nations Quebec-Labrador (AFNQL) learned, through the media, that a Quebec Summit on Land Use Planning would be held virtually on January 27th. Not only does the program that has been unveiled completely ignore the concerns, rights, and claims of First Nations, but this announcement also goes against what Minister Laforest stated to AFNQL Chiefs during her participation in the First Nations and Quebec Grand Economic Circle, last November, in Montreal.

On that occasion, when questioned by AFNQL Chiefs on the “National Strategy on Urbanism and Land Planning” (Stratégie nationale d’urbanisme et d’aménagement des territoires), the Minister of Municipal Affairs and Housing committed to holding political level discussions with First Nations on this specific subject matter, considering the level of discontent expressed by several Indigenous communities with regard to this Strategy which was developed unilaterally, by Quebec.

March 26, 2020


Site C Dam and COVID-19

Open Letter from Union of BC Indian Chiefs to Premier John Horgan and Adrian Dix, Minister of Health – to halt construction of Site C Dam due to concerns around COVID-19. Through UBCIC Resolution 2011-25, UBCIC highlighted the environmental dangers of the Site C Dam and pointed to the devastating effects it will have on the Treaty and Aboriginal Rights of Treaty 8 First Nations. BC Hydro has confirmed that 16 of its construction workers at the Site C Dam site are under self-isolation with flu like symptoms. Given the close quarters and inevitable contact points at the 1,600-worker camp, an outbreak of COVID-19 would be disastrous and with dire implications for nearby communities, including First Nation communities.

There is an extreme shortage of health services in northeast British Columbia, with virtually no hospital beds available to handle an outbreak in Fort St. John or nearby Indigenous and non-Indigenous communities. BC Hydro’s recent news release also reveals that it is barrelling ahead with Site C Dam construction, including work on river diversion, transmission lines, highway realignment, clearing and other elements. This negligence and irresponsible continuation of construction places the welfare of workers and communities at an unacceptable risk and is utterly inconsistent with the health advice provided by Provincial Health Officer Dr. Bonnie Henry.

May 14, 2021


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.”

November 17, 2020


The Anicinape Nation ancestral rights

The Minister Responsible for Indigenous Affairs – Minister Ian Lafrenière met with the chiefs of the Algonquin communities and the Grand Chief of the Tribal Council of the Anishinabeg Algonquin Nation, Verna Polson. All parties agreed to immediately begin a negotiation process to find lasting solutions to avoid a repeat of the situation experienced in the fall, during the moose hunting season, in the La Vérendrye Wildlife Reserve. it was agreed that the random draw for hunting, conducted by the Sépaq, would be postponed until March 2021 and that there would be no pressure applied during the negotiations

October 8, 2020


The Anicinape Nation ancestral rights

First Nations Drum – The Anicinape Nation is calling for a complete moratorium on moose hunting on its unceded ancestral territory. Faced with the Quebec government’s refusal to authorize this moratorium, roadblocks have been erected in the La Vérendrye wildlife reserve to prevent hunters from passing through. Yesterday, the Quebec Superior Court granted a provisional injunction to the Petawaga zec, part of the La Vérendrye wildlife reserve. The Anicinape Nation holds ancestral rights, including an unextinguished ancestral title, on the entire territory of the wildlife reserve.

Moose hunting is at the heart of the culture and identity of the Anicinape Nation and all First Nations in Quebec. The protection of moose is a collective duty to ensure the vitality and sustainability of culture and traditions. Government leniency in this file has direct impacts on the rights of the Anicinapek, which are enshrined in the Canadian Constitution and protected by Canadian and international law.

July 27, 2022


The Wolastoqey title claim in N.B., a centuries-old issue and the honourable solution

New Brunswick never signed a land-sharing treaty and is in violation of laws governing compensation. It’s time for a resource revenue-sharing agreement.

Policy Options: In New Brunswick, a Mi’kmaw title claim by the Wolastoqey Nations is underpinned by a simple truth: the Mi’kmaw Nation of New Brunswick was unfairly dispossessed from its  traditional territory by Euro-Canadian settlement without its consent or compensation. This title claim needs to be considered within its broader historical and legal significance, and with the recognition that Canadian governments have systematically ignored Indigenous land and treaty rights at least since Confederation.

The claim is at least decades long in its making and was filed in October 2021. It seeks the court’s declaration that the Wolastoqey have Aboriginal title to their traditional territory, which they never ceded by any treaty agreement with the Crown. The territorial claim still stands as an “existing Aboriginal right.”

An honorable solution exists to resolve this centuries-old issue. 

Given that the Wolastoqey Nations hold a pre-existing and unextinguished plenary title to all of New Brunswick, the Wolastoqey Nations and the province could enter into a modern-day treaty to craft a resource revenue-sharing agreement based on existing constitutional and treaty law. That would be the honourable way to deal with the Wolastoqey title claim and would be a win-win solution for both parties without disturbing private interests and property.

Instead, New Brunswick Premier Blaine Higgs and his ministers have treated it as a confrontational issue. They have spoken out against the land title claim by stating that it would jeopardize private land and business interests. Their assertion shows great ignorance of Indigenous history, Indigenous law and how European settlers unilaterally claimed ownership of North American Indigenous territories. 

However, Higgs and his ministers cannot be totally blamed. The provincial education ministries and the public school system in Canada have failed in their obligation to teach Indigenous history beginning with the Royal Proclamation of 1763 and all the way to section 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights.

The notion of European discovery of the New World laid the seeds for the current disputes concerning North American Indian land rights. In 1823, in the case of Johnson v. M’Intosh, Chief Justice John Marshall of the U.S. Supreme Court reasoned that discovery gave legal title to the English, “which annulled the pre-existing rights of its ancient possessors.” 

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In Canada in 1888, the Privy Council of England reasoned in the case of St. Catharines Milling that Indians held no legitimate title to their lands and were considered no more than mere leasehold tenants when British sovereignty was established in 1759. It said, “…the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign… There has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title…” 

Such denial did not abate until 2014, when the Supreme Court of Canada held in Tsilhqot’in that Aboriginal title confers ownership rights akin to fee simple title, similar to private land property rights. Indigenous nations such as the Wolastoqey of New Brunswick are now challenging the legitimacy of the English claim to North America based on the justiciable legal fictions of discovery and terra nullius (no one’s land).     

Fifteenth-century popes, kings and Premier Higgs

The reaction to the Wolastoqey land title claim has been incredulity, which is emblematic of the Euro-centric attitude dating back to the 16th century, when the pope and European kings would argue that Christian nations had a God-given right to dispossess non-Christian nations from their lands. Higgs’s and his ministers’ assertion shows a great depth of prejudice against legitimate Indian land rights. 

Let’s puts things in modern perspective: very little remains of the original Mi’kmaw traditional territory. Crown lands in Canada are extensive and they were carved out of Indigenous territories: 99.75 per cent of New Brunswick is occupied by the descendants of the original European settlers. New Brunswick encompasses 72,908 square kilometres. There are 32 Indian reserves totalling 183 square kilometres. That amounts to only 0.25 per cent of the province. 

Premier Higgs’s position is hard to fathom or justify given that the Mi’kmaw Nations in the Maritime provinces never signed any land-sharing treaties with the British.

Obviously, the Maritime provinces ignored the dictates of the Royal Proclamation after Confederation in 1867. Nonetheless, the proclamation still applies throughout Canada not only via its geographic reach but also by the development of pre-Confederation constitutional law and the common law: Regina v Koonungnak (1963-64), which can be found in Aboriginal Legal Issues, Cases, Materials & Commentary.

Today’s hard truths

Canadians have to face some hard truths behind the Wolastoqey land title claim. 

First, the British needed the co-operation of Indigenous nations for early European settlement. The Mi’kmaw Nation greatly assisted the early English settlers as the Maritime provinces were established. Diplomatic and treaty initiatives were essential requirements for the “peace, order and good governance” of the British colonies. The Maritime provinces have yet to express their gratitude to the Mi’kmaw Nation for the land and all that it provides. 

Second, after the repatriation of the Canadian Constitution in 1982, Canada entered what is now the “rights recognition and reconciliation era” in relation to Aboriginal peoples as per section 35 of the Constitution Act, 1982. The Wolastoqey land title claim falls within that era and it probably won’t be the last title claim. 

There is a solution to this impasse: the New Brunswick government needs to take a hard look at its current policies and legislation in relation to Indigenous legal interests in land and resources. Reconciliatory action is needed and it is a quintessential Canadian issue. It’s not solely Aboriginal. 

Canada should take a cue from Australia’s High Court 1992 decision in Mabo, which holds that Australian land laws should not be based on terra nullius and that Torres Strait Islander peoples have land rights that existed prior to British occupation, which can still be exercised today. The facts are the same. Canada and Australia belong to the same British Commonwealth family, they share the same Indigenous land issues and have the same history of long denial of Indigenous land rights.                                                                                                                             

Past federal policies and legislation since 1867, such as the Indian Act under the Macdonald and Mackenzie governments, are to blame for creating today’s tensions. Safeguards for Indian land trusts and interests were routinely ignored but nonetheless remained constitutionally protected via the British North America Act (1867), i.e., sections 109, 146, and the Rupert’s Land Order, Term 14. The continuing denial of Aboriginal land rights did not abate until 1973 via the Calder Supreme Court decision. This led then-prime minister Pierre Trudeau to declare, “You Indians have more rights than I thought you had.” Thereafter, Canada instituted the Indian land claims policy to address the wrongful taking of Indian lands.

Rupert’s Land is the territory in pink. York Factory was a trading post created in northeastern Manitoba in 1684. Credit: anonymous, Wpdms ruperts land, CC BY-SA 3.0

A legal obligation to honour Indigenous land rights                                                                                                                  

Section 146 of the B.N.A. Act, 1867, provided for the admission of Rupert’s Land and the North-Western Territory into Canada based on certain terms and conditions. They included the equitable principles doctrine, which provides as follows: “…upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”                                             

Is acknowledging Indigenous territory enough?

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Canada’s “prove it” approach to Aboriginal title 

Also, pursuant to  the Rupert’s Land and North-Western Territory Order of June, 23, 1870, Term 14, the transfer of all Crown lands and natural resources to the provinces is “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Provinces in the same,” i.e., B.N.A. Act, s. 109. All provinces are constit utionally obligated to respect residual Indian trusts and interests existing on Crown lands. The current Euro-Canadian occupation of New Brunswick might be challenged on the basis that the requirements set out in the Rupert’s Land Order for settling Indian claims were not adhered to.

It is therefore clear that the Higgs government remains in continuing violation of the Rupert’s Land Order including section 146 of the Constitutional Act, 1982, and now sections 25 and 35 of the said constitutional provisions. 

Brokenhead Mission. Cutline: Brokenhead Mission, Ruperts Land, MB, about 1895. Credit: McCord Museum

No evidence of land-sharing treaty in New Brunswick

Indigenous territories constitute high Crown trust responsibilities and, as such, orderly and lawful occupation of Indigenous territories is required. Indigenous nations in the provinces where land-sharing treaties are absent, such as New Brunswick, are entitled to be compensated for the Euro-Canadian occupation their lands. New Brunswick stands in direct violation of such law and such justiciable Euro-Canadian occupation in that part of Canada is contrary to our liberal-democratic ideals and respect for the rule of law.

The Wolastoqey title claim is based on the Peace and Friendship Treatiessigned by the Mi’kmaw Nation and the British Crown between 1725 and 1778 for the sharing of resources. However, those treaties did not provide for the surrender of any Mi’kmaw land. Those historic treaties perhaps provide a template for a possible resolution, though.

An amicable resolution

Canada was built on the backs of Indigenous Peoples, their lands and resources. European settlers became prosperous. Indigenous Peoples did not, and that was not by chance. Natural resources revenues, to which First Nations have a rightful claim, create the wealth needed to drive the Canadian economy for all Canadians, including Indigenous Peoples. Yet, through restrictive and racist government policy and legislation since 1867, Indigenous Peoples have been totally excluded from sharing in such wealth. Importantly, such exclusionary policy is contrary to the spirit and intent of the Victorian Treaties (1871-1921) in Western Canada, otherwise referred to as the Numbered Treaties (1-11).

An amicable resolution to the title claim of the Wolastoqey Nations exists. It would go a long way toward improving their capacity to participate in the Canadian economy as equal partners in Confederation. New nation-to-nation arrangements such as resource revenue sharing and equity participation in resource development projects between the Mi’kmaw Nation and the New Brunswick government will have to be made. Such initiatives have been started with the Yukon, the Northwest Territories, Nunavut, British Columbia, Quebec, and Newfoundland and Labrador, to their credit. One thing is for certain: the status quo of government denial and exclusion is no longer sustainable.   

March 3, 2021


Treaty 8 and Site C Dam

First People’s Law – The Site C dam, downstream of the WAC Bennett Dam, capitalizes on the destruction of Treaty 8 territory and the ongoing infringement of treaty rights. It will also cause additional, irreversible impacts on the lands and rights of Indigenous Peoples in Treaty 8 on both sides of the Alberta-BC border.

In July 2020, the BC government revealed there were significant structural problems with the foundation of the Site C dam. The Province commissioned a series of expert reports to assess the safety issues but allowed construction to proceed in the interim. The Province also refused to share the reports with First Nations or the public. Six months later, the BC government announced it had determined, based on the expert reports, that the proposed solutions were adequate and that it intended to move ahead with the project. The announcement did not address the impacts on Treaty 8 territory or the fact that significant legal challenges remain outstanding. It also did little to resolve First Nations’ safety concerns, particularly given BC’s refusal to share the reports until after the decision was issued.

The Indigenous signatories to Treaty 8 entered into treaty to establish a relationship of mutual respect, benefit and peaceful co-existence with incoming settlers. In exchange, the Crown promised, among other things, that the Indigenous treaty parties would be free to hunt and fish after the treaty as they would be if they never entered into it. The Site C dam, which would result in the permanent destruction of significant portions of Treaty 8, is antithetical to this promise.

BC’s decision to forge ahead with the Site C project, even when both treaty rights and public safety is at stake, is further testament to how treaty rights can be undermined when the entity that determines whether a project goes ahead–the provincial government–also has a vested interest in the project proceeding.

However, BC’s failure to honour its treaty obligations does not mean Site C will proceed. First, courts have confirmed the importance of implementing treaties in a way that respects and protects the Indigenous treaty parties’ rights and territories, including by taking into account the cumulative effects of resource development and justifying any infringement of the treaty. The BC Supreme Court will determine whether the Province has met these obligations in West Moberly First Nations’ treaty infringement action, which is scheduled to be heard over 120 days beginning in March 2022.

In addition, there are signs the Province’s announcement will serve to strengthen First Nations’ commitment to work together in Alberta and BC to ensure their rights are respected. In February, the Treaty 8 First Nations of Alberta issued a Declaration of Indigenous Solidarity calling for the immediate suspension of the Site C project until the Crown’s consultation obligations are fulfilled and until the court has determined West Moberly’s treaty infringement claim.