By Trevor Greyeyes
Two months ago, prior to the last
provincial election I had predicted that the deal cancelled by
Pallister’s provincial government between the Manitoba Metis
Federation and Manitoba Hydro would result in a court challenge from
some Manitoba First Nations.
On Oct. 30, 2019, Sagkeeng First
Nation announced that they were going to be undertaking a court
challenge to Bipole III. That’s a $453 million, 500-kV transmission
line that is currently under construction from Northern Manitoba to
the United States.
I have watched and read the reactions in the mainstream media to this developing story. There coverage and understanding of this issue was in a word pathetic.
With my prognosticator’s hat on yet again, I predict that other First Nations will file suit or they will wait to see how the case proceeds.
I fully expect that Sagkeeng First Nation has a better than good chance at winning the case.
Having read various comments after First Nation stories in the mainstream media and receiving multiple emails myself, I know there are a vocal few out there who will decry these decisions as “legal fiction” when weighing it against their own limited ideology.
Generally, these people tend to be older and have been out of school for years but rely on what was taught in schools at the time.
Any number of racist ideals that have been dismissed by various courts over the years including, but not limited to:
- the idea that the land was empty and not in use. Terra nullius, the Latin term for empty land, has been firmly rejected by the courts.
- a theory that First Nations weren’t fully organized socially or politically so the treaties can not be considered full blown legal documents representing negotiations between nations. The theory of social Darwinism is for all practical purposes a “flat earth theory.” No one in the academic community actually takes it as a serious scientific inquiry. Again firmly rejected by the courts.
Now as a journalist for many years, I have been tracking court cases and the decisions.
It’s legal reality based on laws that are already on the books coupled with decisions made by various courts, including the Supreme Court of Canada, over the years.
By no means is grasping the new reality easy because you really have to know the cases and the decisions that serve as a sort of connective tissue between all the decisions.
And for all the colonizers out there, remember, all of these laws and decisions are based on a foreign system that some First Nations people decry even participating in.
So here’s a primer:
- The Royal Proclamation of 1763 lays the foundation for all the decisions that follow. It was issued by King George III on October 7,1763, following Great Britain’s acquisition of French territory in North America after the end of the Seven Years’ War. The proclamation is important because it a) acknowledges Indigenous title to the land and b) lays out the process for taking up of any lands.
- Negotiation of the Numbered Treaties 1-11 (1871 to 1921) came about as a response to American westward expansion the the south.
- Natural Resources Transfer Act (1930 Manitoba) was a series of laws that transferred responsibility for lands and resources to the provinces. Important to remember this because Manitoba’s provincial government has responsibility in this area and this legislation is the reason why.
- Calder et al. v. B.C. attorney general (1973) saw the Supreme Court rule against the Nisga’a in a close decision that saw the seventh judge rule against the First Nation on a technicality about land claims. However, the case opened the door for modern court challenges after nearly a century of interference by the Crown to keep First Nations from even filing court challenges.
- The Canadian Constitution Act of
1982 saw the introduction of the Charter of Rights and Freedom.
Additionally, Section 35 officially recognizes Aboriginal and treaty
rights in the supreme law of the country.
The problem for Canada, and this is a matter of perspective, is that the section specifically states that “35(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.” It did this without defining what those rights were leaving it up to court cases to determine those rights. And people need to realize that the burden to prove these rights exist and are being impacted by, for example, resource development are on the Indigenous side. - Delgamuukw v. British Columbia (1997) is a case where the Supreme Court of Canada did not make a decision but it’s statement on Aboriginal title to the land have laid the groundwork for for future land rights cases and the land claims process. It affirmed Aboriginal title to the land that went just beyond resource extraction. It was also the first time a court stated that there is a Constitutional duty to consult First Nations and to compensate those First Nations when treaty rights or title have been abrogated.
- R. v. Marshall (1999) is an important decision because it recognized that First Nations have a right to make a “moderate livelihood” from commercial fishing. Since that time, various provincial governments have yet to fully embrace the ramifications of this decision. Over the years, provincial governments have lost a number of cases trying to limit First Nation and Metis commercial and hunting rights.
- Haida Nation v. British Columbia Minister of Forests (2004) had the Supreme Court confirm there is a constitutional duty to consult duty for the Crown to consult with First Nations in any resource development.
- Tsilhqot’in Nation v. British Columbia (2014) is a landmark Supreme Court decision that a First Nation’s land title extends beyond the physical borders of the First Nation. The land title extends to areas of traditional economic use and traditional spiritual practices. However, remember this that the burden of proof is on the First Nation that a) traditional economic or spiritual practices occurred in those places outside the boundaries of a First Nation and b) that those are on-going. The Tsilhqot’in decision is particularly germane to the Manitoba Hydro case brought forward by Sagkeeng First Nation. Though the province has claimed in their report that there would be minimal impact because the lines go nowhere near the community. I am sure that Sagkeeng First Nation will put forward the argument that the development negatively impacts areas of traditional economic and spiritual practices outside the boundaries of Sagkeeng First Nation.
- Grassy Narrows First Nation v
Ontario Natural Resources (2014) was claimed by some First Nations
as a loss but then again it comes down to perspective. Grassy
Narrows First Nation claimed that Ontario could not issue a license
for a company to log because the Federal government represents the
Crown with a constitutional duty to consult with First Nations.
However, the courts ruled that the
province is an agent of the Crown and therefore can take up and
affect Aboriginal title and rights.
This decision is another important decision that has a direct effect on the current court challenge by Sagkeeng over the transmission line being built by Manitoba Hydro. Yes, while the Manitoba government has jurisdiction over resource development projects, the duty to consult and accommodate also lies with this provincial government as well.
Without an impact and benefits
agreement, or IBA that is shorthand used in resource industry, with
any First Nation or Metis representative, Manitoba’s provincial
government is risking the completion of the transmission line and
untold millions in compensation to First Nations.
However, with
all that I’ve written and pointed out, I do have some questions.
Why Sagkeeng First Nation?
From a purely strategic point of view, there are other First Nations along the route that geographically speaking might have a stronger case to make than Sagkeeng.
Did Sagkeeng First Nation just file
their case first?
Despite any misgivings I have about Sagkeeng
First Nation moving forward with this court challenge, I don’t think
the First Nation would move forward with this case without having
some compelling evidence that members of that First Nation continue
to make use either economically or through spiritual ceremony on land
affected by the construction of the transmission line.
Again, the
burden of proving the claim rests with Sagkeeng First Nation.