It’s time to give new life to our First Nations treaties – by John Olthuis and Bob Rae (Globe and Mail – May 23, 2014)

The Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

John Olthuis and Bob Rae are partners at Olthuis Kleer Townsend

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.

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