The continuing Indigenous winning streak

Bill Gallagher’s Resource Rulers: Fortune and Folly on Canada’s Road to Resources documents a remarkable Indigenous winning streak on resource rights. Published in 2012, Mr. Gallagher identified a substantially unbroken set of Indigenous legal victories that revealed a simple and vital truth: Indigenous efforts to hold Canadian governments accountable under Canadian governments has enjoyed long-term success. Many of the legal judgments on Indigenous challenges continue to shape Canada. The Marshall Decision (1999) transformed Eastern Canadian fishing. The twin decisions on Indigenous consultation, Haida (2004) and Taku (2004), introduced the principles of “duty to consult and accommodate” and recast the manner in which governments and corporations collaborated with Indigenous communities on resource projects. Even with such important legislation as Bill C-69, which extended regulatory oversight, the foundations of Indigenous economic empowerment rest with these court decisions. Ken Coayes is MLI’s Munk Senior Fellow in Aboriginal and Northern Canadian Issues. Photograph courtesy of Macdonald-Laurier Institute The legal trajectory in favour of Indigenous peoples continues to improve. In June 2021, the B.C. Supreme Court issued a ruling on the claim of the Blueberry River First Nations relating to the role of the Government of British Columbia in authorizing development on their territories and the neglect of the province’s responsibilities under Treaty 8. This area has attracted large scale energy investments; the area is now criss-crossed with seismic lines and bears the marks of a great deal of oil and gas development. The First Nations fought for compensation and secured a series of victories over the years, but the broad and region-wide impacts of development activities remained unaddressed. The 2021 B.C. Supreme Court decision, potentially changing the conversation around developments in Canada, speaks to the cumulative effects of resource use in Canada. While individual projects in the area may have gone through appropriate regulatory processes, these assessments did not recognize the full and comprehensive impact of many years of resource and associated socio-cultural disruptions. The BC Government, anxious to demonstrate their commitment of the United Nations Declaration on the Rights of Indigenous Peoples, quickly reached an interim agreement with the Blueberry First Nation. The agreement provided substantial control over future natural resource development in the Treaty 8 territories and additional compensation. The deal provides substantial funding, $35-million, to work on land restoration and an additional $30-million to preserve and protect the Blueberry First Nation way of life. In addition, the First Nation and the province are engaged in negotiations to establish long-term financial, planning and business arrangements. As a result of the agreement, most of the resource projects in the region will continue, although 20 developments that may threaten Indigenous cultural sites and harvesting activities will be suspended pending a joint First Nations-government review. Comparable discussions are underway with other Treaty 8 First Nations and a recasting of relationships around Treaty 8, Indigenous legal rights and UNDRIP is underway. The Blueberry First Nation’s decision and the subsequent major concessions by the British Columbia government may represent a new era in Canadian resource development. These legal judgements are, at best, catch-up enterprises, providing retroactive support for Indigenous communities that endured many years of disruption and environmental change. The Blueberry First Nations understand that resource development can and should continue and they and working with governments and companies to ensure that this happens. But this recent court decision remains a patch rather than a solution to a vexing and extremely serious set of problems. Even the current settlements represent only a small step toward meeting the legitimate and pressing needs of the Blueberry First Nation and other Indigenous peoples in Canada. Beyond direct impacts, this growing pattern of legal success for Indigenous communities hold subtle lessons for the country, though Canadians typically miss some important elements of the Indigenous recourse to the courts. First, the fact that Indigenous peoples use the Canadian legal systems shows an implicit confidence in the Canadian state. Claimants trust the courts to deliver just and appropriate decisions, and they have collectively invested hundreds of millions of dollars in pressing their claims. Their confidence has been justified in a majority of the cases. Significantly, Indigenous peoples are not seeking justice according to Indigenous traditions and legal concepts, much as they would prefer to do. Their claims are based, as they generally must be, on Canadian law and its colonial antecedents. Indigenous peoples are holding Canada to account according to Canadian standards, legislation, and principles. They are testing the law rather than replacing it and, to a substantial extent, demonstrating their respect for Canadian institutions and legal concepts. If Gallagher’s Resource Rulers documented an important and continuing Indigenous winning streak, a new book by Metis lawyer Bruce McIvor, Standoff: Why Reconciliation Fails Indigenous People and How to Fix It, describes what lies ahead. McIvor’s vision is compelling but will be disquieting to many. He describes a national effort at reconciliation that is tainted by the requirement that Indigenous peoples must fight, expensively, with the Canadian government to secure recognition of basic rights. This arrangement leaves Indigenous communities to carry the burdens of delayed justice and reconciliation. McIvor makes it clear that half measures, including hard-won legal decisions, will not address legitimate Indigenous needs and that major reform of Canadian systems is required. Canada has a simple choice going forward. Rethinking the fundamental requirements for reconciliation needs bold visions, multi-party consensus and full provincial and territorial engagement, plus obvious agreement from First Nations, Metis and Inuit. Without such actions, as McIvor clearly demonstrates, Indigenous peoples will fight to reshape the country through the courts all the while watching their children and family pay a brutal price for the delays and national inaction. Indigenous rights should not have to be asserted by Indigenous communities in hundreds of court cases. They should, instead, be recognized uniformly as key building blocks for 21st century Canada and, finally, as a solid foundation for reconciliation and Indigenous empowerment. Even blatant non-Indigenous self-interest should point in this direction. The now decades-long Indigenous legal winning streak is going to continue, with steadily increasing costs and consequences for the country. Canada’s options are to stay the course, and spend decades in court with Indigenous peoples, or to willingly and constructively engage with Indigenous peoples and governments to build a country shaped and defined in important ways by the recognition of Indigenous rights. Ken Coates is a Munk Senior Fellow with the Macdonald-Laurier Institute. The Hill Times