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Tom Flanagan is professor emeritus of political science at the University of Calgary and chair of the Aboriginal Futures program for the Frontier Centre for Public Policy.
Resource-revenue sharing has emerged as the next Big Idea for First Nations. Like most Big Ideas, it seems simple, but in reality is full of legal difficulties and unintended economic consequences.
Perry Bellegarde, National Chief of the Assembly of First Nations (AFN), said immediately upon being elected to that position, “If our lands and resources are to be developed, it will be done only with our fair share of the royalties, with our ownership of the resources and jobs for our people.” By “our” he meant all the natural resources of Canada, everywhere, not just on reserves or First Nation settlement lands.
This view contradicts the treaties signed in Ontario and the Prairie provinces, which provided for the surrender of all titles to land and natural resources. But according to the AFN, the treaties do not mean what they say. The AFN says aboriginal leaders actually surrendered land only “to the depth of a plow,” for the purposes of agriculture, so today’s First Nations still own all subsurface rights to minerals and oil and gas.
The plow’s depth theory has never prevailed in court because it lacks historical foundation. It does not appear in the abundant documentary evidence surrounding the treaties. It first emerged in oral histories collected in the 1970s, a century after the treaties were negotiated. Courts have used oral history when written evidence is lacking or ambiguous, but not to overturn the plain meaning of written agreements supported by other documentation.
First Nations have a legal right to the revenues from resources on reserves. They also, by Supreme Court decision, have a right to be consulted about resource developments affecting claims to aboriginal title or hunting rights guaranteed by treaty, and those consultations have led to lucrative impact and benefit agreements.
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