As 2020 began, last winter, the Supreme Court of Canada ruled on the case of two Innu First Nations who opposed a mining project that straddles the Quebec border with Newfoundland and Labrador.
The case came out of Quebec’s court, where N.L. had failed in its legal effort to strike the parts of the claim that relate to land in N.L., claiming a lack of jurisdiction.
A key finding of the top court’s majority decision to dismiss N.L.’s appeal was that Aboriginal rights are not like property rights or personal rights, which are constrained by provincial borders. Rather, they are special sorts of rights that predate Canada and apply evenly across provincial lines.
The fact that Canada is divided into provinces, with different court jurisdictions, “should not be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre‑existing rights,” the court ruled.
You would hardly know it from the Indigenous land and resource disputes that went unresolved across Canada through 2020, even as they were overshadowed by the COVID-19 pandemic.
The year began with a showdown in Western Canada, in Wet’suwet’en territory in northern British Columbia, where a Coastal GasLink pipeline is being built to the sea. The Royal Canadian Mounted Police moved in to arrest people blocking a service road. Prime Minister Justin Trudeau called it an issue of international law, a matter to be resolved “nation-to-nation.” Protests in solidarity were spreading across the country, including a rail blockade in Ontario, just as the pandemic’s first wave began in March.
More recently, in Nova Scotia, the lobster fishery in the Bay of Fundy saw arson and physical confrontations when commercial workers in the off season protested the Sipekne’katik First Nation’s launching of lobster boats. The disagreement was over the established legal right of Mi’kmaw people to a “moderate livelihood” from the fishery, with little in the way of clear regulatory guidance about what that means.
And in Caledonia, Ontario, a dispute over housing development on land claimed by the Six Nations of the Grand River, flared up again in summer, without resolution. Indigenous groups occupied an area of the development in mid-July and set up an encampment where they remain, more than 150 days later. A burned-out school bus blocks one of the main roads near the protested site. The land developer has recently filed a class action lawsuit against the province of Ontario, on behalf of people economically harmed by the protest, including the proposed representative plaintiff, who owns a Pita Pit franchise, alleging “misfeasance in a public office and for negligence respecting, among other matters, blockades erected by protestors”
The chair of the local police services board has also urged the Ontario Provincial Police to change its longstanding policy on response to similar protests, the Framework for Police Preparedness for Indigenous Critical Incidents, a document created after the Ipperwash inquiry of 2007 into the police shooting of a protester — even as he walked back and apologized for the board’s unfounded accusation in September that the protesters were “terrorists.”
A common theme in all of this is that, as tense protests develop, all eyes turn to Ottawa, where Prime Minister Justin Trudeau, after five years in government, is gathering a collection of missed milestones on Indigenous reconciliation, notably including on clean drinking water, but also on land and resource rights.
There are other factors. In B.C., for example, there were competing claims of legitimacy between elected and hereditary chiefs. There is also an international treaty environment, in which Canada knows the eyes of the world are on it.
In December, the Liberal government introduced a bill that would require all Canadian law to conform to the United Nations Declaration on the Rights of Indigenous People.
These problems are perennial. It was 15 years ago that three Haudenosaunee women began the occupation of a housing development in Caledonia, Ont. They were joined by others, and ordered out by a court in March. The Ontario Provincial Police acted in April, meeting resistance, including the setting up of barricades, mischief and vandalism. More than 50 charges were laid. By June, the province had bought Douglas Creek Estates. In 2011, it settled a class action by setting up a compensation fund.
The Nova Scotia fishery has a similar history of high-profile events and false conclusions. This year’s conflict proved that even a decision of the Supreme Court of Canada could not settle the matter, as the 1999 ruling in the case of Donald Marshall, Jr. appeared to do by setting out the right of First Nations to fish for a “moderate livelihood,” which the federal government has declined to define.
Justice Minister David Lametti was optimistic that the signing of the UN treaty will be an important milestone to guide progress and not yet another failed pledge.
“Working with First Nations, Inuit and Métis peoples to implement the declaration and create a framework to achieve its objectives is a statement that the Government of Canada values, respects and promotes the human rights of all, and not just some,” said Lametti at a press conference with First Nations leaders in December. “The legislation is a significant step forward on the shared path to reconciliation for Indigenous and non-Indigenous peoples alike.”
Perry Bellegarde, outgoing Assembly of First Nations Chief, endorsed the bill as a way to balance economic and environmental concerns in pursuit of a better country, but said it has a “precarious journey” ahead on the way to Royal Assent.
Source: National Post Quebec Nordiques