It has been over a generation since Canada has been witness to relations with its first nations which truly are at a tipping point, as Assembly of First Nations Chief Shawn Atleo aptly observed. While this crisis was spurred by the decision of Attiwapiskat chief Teresa Spence to begin her hunger strike a month ago in protest to Federal omnibus legislation, her actions served as a catalyst to a message the Conservative government chose to conveniently ignore; when making decisions that directly impact our first nations, the duty to consult is not optional, but a non-negotiable imperative.
The constitutional authority for the duty to consult can be found in the relatively recent Supreme Court of Canada case, Haida v. British Columbia (Minister of Forests). Chief Justice Beverley McLachlin set out a three part test indicating when this constitutional requirement is discharged:
(1) the Crown’s real or constructive knowledge of a potential aboriginal claim or right;
(2) contemplated Crown conduct; and
(3) the potential that the contemplated conduct may adversely affect an aboriginal claim or right.
Of significance is McLachlin’s insistence that the impugned government action does not need to have an “immediate” impact on land and resources. The mere “potential for adverse impact suffices”, she wrote. “The duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on aboriginal claims and rights.”
The catalysts for this crisis were bills C-38 and C-45, and its “proposed changes to the Fisheries Act and the Navigable Waters Protection Act”. First Nations leaders expressed grave concerns that the proposed changes in the legislation would have a detrimental impact on their use and sustenance of their land.
According to Chief Steve Courtoreille of the Mikisew Cree, “We depend on … our livelihood, our way of life … out in the land. They’re [the government] supposed to protect our land, waters, air. Now it’s giving industry open season to our territory.” http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html
The Chief added that his band was not consulted at all about these proposed changes which, as Haida reiterates, had a direct, if not adverse effect on an aboriginal right or claim. He also suggests that this federal neglect of this duty to consult was the trigger for the “Idle No More” movement, one that has most recently gained considerable political momentum. http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html
To be fair, some of these changes, most notably reflected in Bill C-45, can be considered an attempt to bolster the economic well-being of first nations, by expediting the burdensome process for leasing land pursuant to the Indian Act. Tom Flanagan remarks that procedures to designate land have been extremely cumbersome, mired in complex voting procedures that would often add considerable cost and months to the land designation process.
Bill C-45 was an attempt to respond to these concerns by making two key changes to streamline the process. The first was to replace “approval by order-in-council by approval of the Minister of Aboriginal Affairs”, and the second to streamline what would constitute a majority, “the same way chiefs of first nations are elected. http://m.theglobeandmail.com/commentary/bill-c-45-simply-makes-it-easier-for-first-nations-to-lease-land/article6780103/?service=mobile
Where Flanagan errs, and likely draws the ire of the Idle No More movement, is in his dismissal of this constitutionally enshrined duty to consult. “Consultation has become a shibboleth of our time. It is, indeed, an essential part of democracy, but it can also become a constraint on freedom.” He adds, “prolonged consultation may give some people a veto to prevent other people from exercising their own rights.” http://m.theglobeandmail.com/commentary/bill-c-45-simply-makes-it-easier-for-first-nations-to-lease-land/article6780103/?service=mobile
While the proposed legislation is perhaps more efficient in enabling first nations to designate lands and reap economic benefits, to suggest that such vital decisions can be made without their input perpetuates old paternalistic modes at the core of the flawed Indian Act. It also continues the ongoing cycle of mistrust in relations between the federal government and first nations leadership. It understandably upsets first nations people to be told, even assuming the intentions are benevolent, that a federal government can make decisions for peoples to whom it owes a fiduciary obligation, without their input.
Flanagan’s well reasoned arguments do at least provide a rationale for the legislation, and a reminder to all that the status quo is mired in bureaucratic procedures likely inhibiting economic opportunities for many first nations in Canada.
But it is convenient to forget that the claim first nations have to the land predates colonialism, and our laws enshrine an obligation for the federal government to consult in validating continuous, constitutionally protected, indigenous land claims.
As a prime minister, Stephen Harper has often shown himself to be competent, attuned to the nuance of policy. But his grave error as a leader is an unflinching Machiavellian instinct where the ends almost always justify the means, and efficiency considerations trump due process. This is reflected in his top-down management style, an unprecedented use of time allocation to limit parliamentary debate, and his unrelenting preference for omnibus legislation to quell legitimate debate at the core of democracy.
Astute and prescient, Harper understood that he would have to bend, given Idle No More gaining political traction, and Chief Teresa Spence’s unwavering insistence on a meeting with the government as a key demand of her hunger strike. The prime minister came to the inescapable conclusion that if he did not and employ a more consultative approach in addressing first nations grievances, the situation could escalate to violence. Though his recent about face is an encouraging sign, the situation remains volatile with social unrest palpable.
More cynically, the prime minister likely realized that his key economic priorities for resource development and extraction in a turbulent global economy run through the lands of our first nations. If the Haida decision is not at the core of his recent conversion to a more consultative style, the practical realities that his economic agenda and personal legacy risk being tarnished by hubris of his own design.
Politics aside, the challenges being met by first nations today are multifaceted, without a single cause or culprit. In Harper’s decision to employ a consultative approach as reflected in Haida, let us hope that we can genuinely heal the festering wounds in relations with our first nations, sowing the seeds for a genuine renaissance in which we all reap the benefits.
Jeremy Richler has completed an MA in Political Science and an LL.B. He is a sole practicing lawyer in Toronto, and a member in good standing with the Law Society of Upper Canada.