John Olthuis and Bob Rae are partners at Olthuis Kleer Townshend LLP
The news that Archbishop Desmond Tutu is going to the Fort McMurray oil sands has stirred public interest. ‘Why is he going?’ and ‘what will he be saying?’ No one but the Archbishop knows exactly what he will be saying, he’s a free and eloquent spirit. He is going at the invitation of the Athabasca Chipewyan First Nation (May 30-June 1 conference co-sponsored by our law firm) to discuss how economic development in the region could be transformed in ways that respect treaty rights, protect the environment and ensure that benefits are equitably shared.
Treaty 8 was signed in 1899 as the Crown wanted to ensure safe passage for prospectos heading for the Klondike gold rush. In his brilliant book Clearing the Plains, James Daschuk describes how starvation was used as a deliberate tactic of the federal government to subjugate the Prairie population, and how a “miserly interpretation” of the Treaty from the earliest days left aboriginal people huddled in reserves, facing disease, discrimination and poverty.
Early in the 1970’s, Dene elders heard that Canada wanted to build a MacKenzie Valley pipeline. The elders said this was a violation of Treaty 8, which was a “peace and friendship treaty” and not a surrender of land treaty. This profound difference in narrative and understanding is with us still. As is well known, Canada accepted the recommendation of the Berger Inquiry for a moratorium on the Mackenzie Valley pipeline until land claims were settled, and began negotiating modern treaties in the Northwest Territories’ areas covered by Treaties 8 and 11. Some modern treaties have been finalized in the NWT and others are being negotiated. Modern treaties create legal certainty for First Nations and governments through a series of land and resource provisions. Several such agreements, including criteria for the negotiation of Impact Benefit Agreements between companies and First Nations, provide compulsory arbitration in the event that negotiations do not lead to agreements. Legal certainty leads to certainty for governments, proponents and community members.
For some time now, the Athabasca Chipewyan First Nation has been calling for governments to come to the table to negotiate a renewal of Treaty 8 and address this same legal uncertainty. There is a fundamental difference between the oral version of the treaties as understood by the elders, and the written text put forward later by Canada. Honouring the treaties is about reconciling these different views, and ensuring that the mutual promises that were made and understood in 1899 are respected in the present day.
With the vigorous push for resource development in many treaty areas, particularly in the northern parts of many provinces, comes the renewed need to negotiate agreements with First Nations. Where agreements are concluded, development can proceed in a manner and with the consent of First Nations. This provides for First Nation benefits while protecting the environment. But pushing ahead with developments in treaty lands without aboriginal consent and agreement is reckless public policy, and creates uncertainty that plagues projects with legal, financial, moral and on-the-ground uncertainty.
All Canadians are treaty partners. The honourable thing to do – and indeed the economic and environmentally smart thing to do – is treaty renewal that provides honourable implementation of the treaties and ensures that treaty rights and environmental protections are considered along with economic considerations when project decisions are made, rather than being considered as afterthoughts to be addressed later.
Articles 26 to 29 of the United Nations Declaration on the Rights of Indigenous Peoples addresses aboriginal rights to indigenous traditional land, resources and environment protection and sets out that those rights should not be interfered with without the free, prior and informed consent of the idigenous people involved. The May 11, 2014, report of the UN rapporteur also presses Canada to honour the treaties.
Based on his transformative work in South Africa and around the world, we expect Archbishop Tutu will address the pressing need for reconciliation between First Nations and other Canadians at the Fort McMurray conference. We expect that he will address the moral imperatives on our generation to reconcile our use of fossil fuels with the evidence that it is contributing to catastrophic climate changes that will affect future generations; and the conference will be discussing a treaty renewal, based on reconciliation between Crown and First Nations governments.
We must begin to imagine solutions not based on grudging concessions and bureaucratic processes for consultation, but on meaningful provisions in which aboriginal consent for major developments is achieved in the context of meaningful protections for their lands and rights, and an equitable sharing of benefits between governments, industry and Aboriginal communities. It also means that governments need to begin take seriously the idea that there are some ‘lines in the sand’ that will be drawn by First Nations where they determine that certain developments are not now and may never be acceptable because the impacts are just to great. The Athabasca Chipewyan First Nation has repeatedly expressed both of these positions. On the one hand, they are open to development in certain parts of the oil sands and have concluded or are concluding agreements with industry while at the same time maintaining principled opposition to developments in areas essential to their traditional way of life.
Many years ago, the Canadian government started a process that engaged First Nations living outside the traditional Treaty areas of the country. Greater self-government, more economic developnment and greater progress has resulted. It’s time for the same energy and imagination to inform relationships that have been so badly hurt by the Indian Act and truly regressive interpretations of the treaty obligation. In recent years the Supreme Court of Canada has been talking much about the “honour of the Crown”. It’s time Canadians and their governments paid attention.