Expect First Nations to press on resource rights – by Doug Cuthand (Saskatoon StarPheonix – November 30, 2012)


Resource Rulers, a new book by Bill Gallagher, outlines the recent history of First Nations, the resource industry and government relations, and confirms what I suspected.

The First Nations are on a winning streak, and we’re kicking butt in the courts. There are close to 170 positive court cases so far, related to resources and jurisdiction since the inception of the Constitution Act of Canada.

In 1982, when the pa-triation of the Constitution from Britain and the discussions to develop the Charter of Rights and Freedoms were underway, First Nations fought to have aboriginal and treaty rights enshrined in the Constitution and given legal weight. The result was Section 35, which states: “Existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

At the time we complained that Sec. 35 was not defined and only gave us the right to go to court. Then prime minister Pierre Trudeau announced that three first ministers’ conferences would be held to define those rights. The three conferences were held, but unfortunately the meetings got nowhere.

The premiers had the chance to define rights or initiate a process at the conferences, but instead left it for the courts to decide. In the intervening years First Nations have gone to the courts repeatedly and we have amassed an impressive winning streak.

Prior to the patriation of the Constitution, aboriginal title was established by the Calder case in British Columbia and the James Bay Cree decision in Quebec.

In 1997, however, the Supreme Court ruled on the Delgamuukw case and shifted the landscape forever. Delgamuukw refers to a case brought forward by the Gitxsan and Wet’suwet’en traditional territory in British Columbia.

The court defined aboriginal title as the collective right for aboriginal people to hold title to their traditional lands. It then recognized that the right was protected under Sec.

35 of the Constitution and stipulated that the Crown had a duty to consult aboriginal groups prior to acting and said that compensation is required in some cases. The Bernard and Marshall cases on the East Coast bookended the decision, with the court ruling in favour of the Mi’kmaq nation.

For the rest of this article, please go to the Saskatoon StarPheonix website: http://www.thestarphoenix.com/news/Expect+First+Nations+press+resource+rights/7631408/story.html