In a sweeping decision, the Supreme Court has once again altered the legal landscape between Canada and its Aboriginal peoples. Thursday’s judgment ruled that Ottawa must guarantee both Métis and non-status Indians federal government protection of their rights.
In the Daniels decision, the Court ruled that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867. In so ruling, the Court has ended the decades of federal and provincial governments’ attempts to deny those rights and their legislative authority over them. In a scathing commentary, Justice Rosalie Abella denounced this record, which she said had created a “jurisdictional wasteland of significant and obvious disadvantaging consequences.”
The Court did not set a duty to legislate, but the finding of Métis and non-status Indians to be “Indians” in law, means that the ruling will have “the undeniably salutary benefit of ending a jurisdictional tug-of-war.” The very fact that a legislative vacuum exists in this regard underscores the long-held position the federal government has taken to deny its constitutional responsibility. The ball is now firmly in the hands of Ottawa to offer appropriate remedies.
So, it is now clear that Métis and non-status Indians are under federal jurisdiction. But who is included in that group? In the ruling, Justice Abella conceded that there is ongoing debate on the definition of Métis or non-status Indians, but declared that these “definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope” of the law.
For the first time, every person of Aboriginal origin will now come under federal jurisdiction.
While the ruling does not mean that the 600,000 Canadians in question are now “status Indians” under the Indian Act, it does raise practical questions: will Métis or non-status Indians now qualify for tax exemptions? Likely not. But the post-secondary education and health care funding available to status Indians? Not tomorrow, but in some form, likely one day. In some cases, this may also open the door to discussions about lands. A process of negotiation between these previously excluded Aboriginal peoples and the federal government will now be launched, as the prime minister said, hours after the ruling, that Ottawa would respect the Court’s judgment. It remains to be seen if this will mean new funding, or a dilution of funding already allocated to Aboriginal peoples.
The Court also cleared the legal fog on the questions of whether the federal crown owes a fiduciary duty to Métis and non-status Indians and if they have the right to be partners in consultation and negotiation. Citing the many decisions taken in the past two decades affirming this obligation, Justice Abella stated that since these questions have already been answered, additional declarations would be redundant: “a declaration can only be granted if it will have practical utility, that is if it will settle ‘a live controversy’ between parties.” There is no controversy any longer, the case law has been very clear: the federal government does indeed have a fiduciary relationship with all of Canada’s Aboriginal peoples and the federal government most certainly has a duty to consult and negotiate with rights-bearing Aboriginal communities. That is why Justice Abella noted “restating this in declarations would be of no practical utility.”
With federal jurisdiction now paramount, Ottawa will be required to determine if the duty to consult and accommodate the Métis has been met
The duty to consult is where things have not changed as it relates to Métis rights, rather it underscored its necessity. In this decision, the Court reaffirmed the protection of historic community-held rights of the Métis. Developers seeking to build new pipelines, mines or other major projects with the potential to impact Aboriginal rights, will continue to have to consult with rights-bearing Métis communities as they have been doing in Ontario in recent years. Other provinces, Alberta in particular, have not been as fastidious. With federal jurisdiction now paramount, Ottawa will be required to determine if the duty to consult and accommodate the Métis has been met.
To date, Métis rights have been dealt with by provinces where issues such natural resources and harvesting and hunting licenses are concerned. Within their recognized traditional territories – in parts of Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and the Northwest Territories – those provinces will need to ensure they meet the oversight responsibilities of the federal government. The Court clarified that federal jurisdiction over Métis does not mean that all provincial legislation and policies pertaining to Métis are suddenly void. Instead, courts should favour these policies where they exist. But in some cases, like in Alberta, those policies were torn up by previous governments.
Like many of this Court’s path-breaking decisions on aboriginal rights, the ripple effects of this ruling will roll across jurisdictions and inform the reconciliation and negotiations processes for years to come. The specifics of those changes will be hammered out at the negotiating tables, but the Court has made it abundantly clear to politicians and corporate executives alike, they may not be delayed or denied any longer. This ruling presents the Government of Canada with one of its best opportunities yet to right the wrongs of our past relationship with the Métis and begin the process of true reconciliation with all of Canada’s Aboriginal peoples. SOURCE
Melanie Paradis is a Senior Consultant at Earnscliffe Strategy Group and the former Director of Lands, Resources and Consultations at the Métis Nation of Ontario.
In the coming months, the BC Supreme Court is expected to decide whether a civil claim against a B.C. company with a mine in Eritrea can be heard in Canada.
Three former Eritrean mine workers claim Nevsun Resources Ltd. (TSX:NSU) was complicit in the Eritrean government’s use of conscripted labour and other human rights abuses at the company’s Bisha mine.
Should the court decide the claim can be heard in Canada, it could have wider implications for Canadian mining companies operating in countries with less than sterling environmental and human rights records.
More than three-quarters of the world’s mining and exploration companies are based in Canada and operate in 100 countries, according to a McCarthy Tétrault report on mining and the courts.
The Nevsun claim is one of three that have been launched against Canadian mining companies since 2014.
Toronto’s HudBay Minerals Inc. (TSX:HBM) faces three separate claims, which include allegations of rape and murder committed by security forces acting on behalf of HudBay at Guatemala’s Fenix mine, which it acquired through a merger in 2008 and sold in 2011.
Even though HudBay didn’t own the mine when the alleged rapes occurred in 2007, the company might still be held liable if the allegations prove true, according to Nicholas Hughes, co-chairman of McCarthy Tétrault’s mining litigation group.
“It depends on how the merger operated,” Hughes said. “If the merger operated as such that there was an amalgamation, then you bring in all the problems into the merged company.”
In December, the BC Supreme Court ruled against hearing a civil claim launched by seven Guatemalans against Tahoe Resources Inc. (TSX:THO), whose Guatemalan security personnel were accused of using excessive force during a violent protest at its Escobal silver mine.
Tahoe argued that Guatemala, not Canada, is the proper jurisdiction for such a claim. The court agreed and stayed the proceedings – a decision that is being appealed by the Canadian Centre for International Justice (CCIJ), which helped launch the claim. CCIJ is also assisting the Eritreans in their claim against Nevsun.
Canadian courts have jurisdiction to hear cases against Canadian companies operating overseas.
But in the Tahoe case, the court decided that in countries with a functioning court system, it is more convenient to hear the cases in those countries.
That argument might be harder to make in the Nevsun case because its Bisha mine is in a country that the United Nations (UN) says is plagued with “widespread and gross” human rights violations, including forced labour and a “total lack of rule of law.”
“Indeed, with no parliament meeting and the court system controlled by the executive, it could even be affirmed that there is no rule of law in Eritrea,” a 2015 UN commission of inquiry on Eritrea stated. “It is not law that rules Eritreans, but fear.”
If the BC Supreme Court agrees there is no real means of legal redress in Eritrea, it could open the door for the claims to be heard in B.C.
“If justice can’t be done, that will be weighed heavily by the court,” Hughes said.
The Tahoe, Nevsun and HudBay claims are part of a recent trend of Canadian mining companies operating abroad being taken to court in Canada by litigants who claim they cannot get justice in their own countries.
It poses a dilemma for Canadian courts, because to an extent they are being asked to impose Canadian law on sovereign nations, since the alleged crimes may have been committed by personnel acting on behalf of the state.
According to human rights organizations like CCIJ, Canadian mining companies have operated for too many years with impunity in countries with lax environmental and human rights standards, so they are trying to bring some of the more high-profile cases to court in Canada.
According to CCIJ, Canadian resource extraction companies often use subsidiaries set up to act as firewalls to insulate them from liability. Nevsun, for example, owns the Bisha mine in Eritrea indirectly through a complex link of subsidiaries.
Image: HudBay riot damage (top) and an image recorded by a security camera on April 27, 2013, showing security personnel confronting protesters at Tahoe Resources Inc.’s Escobal silver mine in Guatemala | Submitted
Nevsun Resources (Canada) owns 100% of Nevsun (Barbados) Holdings Ltd., which owns Nevsun Africa (Barbados) Ltd., which owns 100% of Nevsun Resources (Eritrea) Ltd., which owns 60% of the Bisha Mine Co. The Eritrean National Mining Corp. owns the remaining 40% of the Bisha Mine Co.
Nevsun disputes the suggestion the ownership structure is intended to insulate the company.
“This ownership structure is common international practice that is done for several reasons related to flexibility in future ownership changes, tax planning, operational management segregation and accountability,” the company said in an email to Business in Vancouver.
Regardless of intent, the use of subsidiaries might not insulate companies from liability, if a Chevron Corp. case is any indication of where the courts may be headed.
Last year, the Supreme Court of Canada made a ruling that could give mining and oil and gas companies with overseas operations a case of the litigation jitters.
“It’s relatively limited as to its ultimate legal impact, but it has got everyone hot and bothered,” Hughes said.
In that case, Chevron Corp. (NYSE:CVX) inherited the liability of Texaco, which was hit with a US$9.5 billion judgment against it after a group of indigenous people sued for environmental damage in Ecuador.
Chevron claimed the ruling had been procured through fraud and went to court in New York seeking a Racketeer Influenced and Corrupt Organizations Act application. The U.S. courts accepted the argument and issued an injunction against those suing Chevron.
So the litigants filed suit in Canada.
They applied to have the judgment they received in Ecuador enforced in Canada against Chevron Canada Inc., a subsidiary of Chevron, even though Chevron Canada had nothing to do with the Ecuador operations.
They went after the Canadian subsidiary because the parent company, Chevron, has no assets in Canada.
A laundry list of legal questions will still need to be ironed out in the Chevron case. But the fact that a Canadian court has opened the door to the possibility of enforcing judgments by a foreign court against a Canadian subsidiary suggests that companies might not be insulated against liability through their subsidiaries and could face costly legal battles.
The Nevsun case could also prove to be an interesting test case. Eritrea has been condemned by human rights organizations for using indefinite military conscription. Conscripts are forced to work on government projects and for private companies, according to the UN and Human Rights Watch.
It is alleged that conscripts were forced to work on the Bisha mine project by Segen Construction Co., which is owned by Eritrea’s governing party. In its response to the Eritrean claims, Nevsun said that if forced labour had occurred, the company was unaware that it had.
A report by Human Rights Watch, which had “extensive dialogue” with Nevsun, suggests Nevsun might have had little say or control over the workforce in Eritrea.
“Its efforts to investigate the allegations have been obstructed by Segen itself, and Nevsun has professed itself powerless to compel its contractor to co-operate,” the 2013Hear No Evil Human Rights Watch report states.
Nevsun disputes the report.
“Their information is not only outdated and incorrect, their primary information source on the Bisha mine is not reliable,” the company stated.
The report concludes with a warning: if Canadian mining companies can’t operate in Eritrea without ensuring the welfare of workers, “they should not invest there at all.”
Canadian companies can protect themselves from civil claims by insisting that their foreign subsidiaries and security forces adhere to higher environmental and human rights standards, Hughes said.
Mark LaLonde, director of risk solutions for Xpera Risk Mitigation & Investigation, which specializes in security and intelligence, said one of the biggest problems for Canadian mining and oil and gas companies operating in countries like Eritrea and Papua New Guinea is the local security forces they hire to protect their workers and assets.
“We’ve seen in eastern Europe and some parts of Africa where it’s organized crime groups running security, or they’re one step away from being an armed militia, or they’re an armed far-right wing group, or they’re running security companies so they can buy firearms for the company and resell them on the black market.”
There is nothing wrong with hiring local security personnel as long as there is proper oversight by someone who will ensure they adhere to international human rights standards, LaLonde said.
“One way to mitigate your risk is to insert a western company to manage your local guard services,” LaLonde said.
The recent claims against Canadian mining companies have prompted renewed calls from Liberal MP John McKay for a Canadian ombudsperson that would investigate complaints about Canadian extraction companies operating abroad.
Pierre Gratton, president of the Mining Association of Canada, said an ombudsperson could do nothing to prevent the kinds of civil claims now being brought before Canadian courts.
“An ombudsman is a non-judicial process that helps parties resolve disputes where legal issues … best left to the courts are not at play,” he said. “In short, John [McKay’s] ombudsman would have no role to play in the HudBay example.” •
Claims test reach of Canadian courts
Araya vs. Nevsun
In a claim launched in November 2014, Gize Yebeyo Araya and two other Eritreans now living outside of Eritrea as refugees say that Nevsun Resources Ltd. (TSX:NSU) is responsible for the actions of a government-owned contractor, Segen Construction Co., that used forced labour and violated international human rights laws.
According to the claim, Nevsun either “expressly or implicitly” condoned the use of forced labour and mistreatment of workers in the construction of its Bisha mine.
Hearings were held earlier this year in BC Supreme Court, and a decision on whether the claim can be heard in Canada is expected in the coming months.
Nevsun indirectly, through subsidiaries, owns 60% of the Bisha mine; the Eritrean government owns 40%.
Between 2008 and 2012, more than 1,000 conscripts of Eritrea’s national service program were forced to work on the Bisha mine’s construction, and some workers who had voluntarily joined Segen Construction Co. were not allowed to quit, according to the claim.
Eritrea has mandatory and indefinite military conscription, with soldiers often forced to work for public and private companies, according to the United Nations (UN). Such was the case at the Bisha mine, claimants say.
Nevsun denies the allegations. And if the alleged abuses had occurred, the company says, it was unaware that they had.
Nevsun insists that contractors were prohibited from using forced labour on the Bisha mine project.
Nevsun also disputes the characterization of Eritrea as a rogue state with no rule of law. It argues that Eritrea has a functioning court system and legally forbids forced labour.
Any claim should therefore be tried in Eritrea, not Canada, the company says.
“The rule of law applies and state actors including public officials are subject to Eritrean laws and the jurisdiction of the Eritrean courts,” Nevsun states in its response to the claim.
But if Eritrean law prohibits forced labour, the government is flouting its own law, according to Human Rights Watch.
“We produced a pretty long report on the national service program a few years ago, and there’s really no way to look at it other than an immense program of forced labour,” Chris Albin-Lackey, a senior legal adviser for Human Rights Watch, told Business in Vancouver. “The service is indefinite. The conditions people endure are horrific.”
According to the UN, Eritrea lacks the basics of a functioning civil society. It has no constitution or legislative assembly, national elections or independent press. A UN commission of inquiry last year concluded Eritrea is a country with “widespread and gross” human rights violations with a “total lack of rule of law.”
Albin-Lackey said forced labour is the primary cause of a massive flight of refugees out of Eritrea.
García vs. Tahoe
In June 2014, Adolfo García, on his and six other complainants’ behalf, filed a civil suit in BC Supreme Court against Tahoe Resources Inc. (TSX:THO) claiming damages in a violent incident that took place in 2013 at Tahoe’s Escobal silver mine project in Guatemala.
On April 27, 2013, the protests at the mine over environmental concerns turned violent when, according to Tahoe, 20 people, some of them armed with machetes, stormed the mine’s gates. Tahoe said there had been reports that outside protesters had been bused in.
The mine’s security personnel responded with pepper spray and fired rubber bullets and buckshot, injuring the claimants.
Those injured claim Tahoe was ultimately responsible for their injuries and allege that the response of the mine’s security team was planned and ordered by the mine’s security manager, Alberto Rotondo Dall’Orso, who is facing criminal charges in Guatemala.
A lawyer from Guatemala who gave expert testimony said in an affidavit that Guatemalan law allows for claims of negligence, battery and vicarious liability.
Stefan Ioannou, an analyst for Haywood Securities, said there are questions about the merits of the allegations against Nevsun. But should a Canadian mining company be found guilty of human rights abuses, it would be bad for the Canadian mining sector’s image.
“If there are allegations and they’re proven to be true, it’s definitely a black eye for the mining industry in general.”
Angélica Choc, German Chub Choc and Margarita Caal Caal vs. HudBay Minerals Inc.
Forced evictions, rape, murder – these are some of the allegations levied against HudBay Minerals Inc. (TSX:HBM) in three separate civil claims launched against the Toronto mining company as a result of protests and illegal occupations of a mine it used to own in Guatemala.
One of the claims against the company predates the company’s ownership of a mine where clashes between security personnel and protesters resulted in the allegations of murder and rape.
HudBay owned Compañía Guatemalteca de Níquel, which owned the Fenix ferro-nickel mine in Guatemala. It sold the property in 2011.
In Caal vs. HudBay, it is alleged that security forces acting on behalf of the mining company raped 11 women in January 2007 as part of a forced eviction of an illegal occupation of the Fenix mine area.
HudBay did not own the mine at the time. It was acquired through a merger with Skye Resources Inc. in June 2008.
In Choc vs. HudBay, mine security personnel allegedly killed community leader Adolfo Ich Chamán on September 27, 2009. According to the claim, Chamán was hacked with machetes and shot in the head.
The company said an “armed mob” attacked the Fenix mine and ransacked a hospital and police barracks on site, stealing AK-47s and using them to fire on security personnel. Five were injured in the violence.
In Chub Choc vs. HudBay, German Chub Choc was allegedly shot and paralyzed by security personnel in the same riot.HudBay says all the incidents stem from what it calls an illegal occupation of the property that belonged to the mine. The occupation began in 2006, it says.
In 2009, the company negotiated an agreement, approved by the government, to return those occupying the land to their original villages, and agreed to build a new school and water system and to improve roads.
Most abided by the agreement but some continued to occupy the land.
As for allegations of forced evictions, HudBay says no one was ever evicted while it owned the mine. SOURCES
Montreal-based lawyer breaks down Clyde River rights case
By FRANKLIN GERTLER, reposted from NUNATSIAQ NEWS, Apr 19, 2016
“States shall consult and cooperate in good faith with the indigenous peoples concerned… in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources”
— UN Declaration on the Rights of Indigenous Peoples (2007) Article 32(2).
As the debate on the extraction and transport of hydrocarbons rages on across Canada, the new federal government has promised a new era of respect for Indigenous rights, as well as the reform of the federal environmental assessment process.
Now the Supreme Court of Canada has agreed to hear two cases that will explore these essential issues. The Supreme Court will determine, among other things, whether the regulatory process of the National Energy Board (NEB) can discharge the Crown’s obligation of consultation and accommodation when a proposed government decision may affect the rights of Indigenous Peoples.
The Indigenous Peoples of Canada inhabited this land long before the arrival of the European settlers and they have steadfastly insisted on respect for their rights in the lands seized by the colonizers.
Some Indigenous communities in Canada have entered into treaties or agreements respecting their rights, while others are in negotiations.
The Courts have recognized a broad duty of consultation and — in some cases — of accommodation flowing from the honour of the Crown to respect the Indian, Inuit and Métis rights protected under section 35 of the Constitution Act, 1982 where government resource decisions may affect such rights.
Some courts have held that in certain circumstances, a process of environmental impact assessment or a decision-making regime under a comprehensive claims agreement may suffice.
But what happens when Indigenous Peoples are faced with a resource development project subject to the regime of the National Energy Board?
The Federal Court of Appeal has recently decided two cases with contradictory results.
The first involves the community of Clyde River, a Hamlet of about 1,100 people in Nunavut, north of the Arctic Circle.
The great majority if the residents are Inuk who for generations have thrived by hunting marine mammals in Baffin Bay and Davis Strait.
The Inuit of Clyde River are opposed to seismic testing for undersea hydrocarbons. Relying on the Canadian Environmental Assessment Act (1992) as it then applied and pursuant to which certain consultations were held with the community, the NEB issued an approval for the testing program.
The Inuit challenged this decision in Court, alleging that the process applied by the NEB did not fulfill the Crown’s obligation to consult and accommodate. However, in August 2015 the Federal Court of Appeal ruled that the Government of Canada could rely on the NEB process to satisfy the requirements binding on the Crown.
The second and contradictory decision arose far from the Arctic Circle and involves the Chippewas of the Thames First Nation in southern Ontario, the energy company Enbridge, and its Line 9 pipeline.
Enbridge sought approval from the NEB for the reversal of the flow of the pipeline. After a process of assessment and consultation in which the Chippewas participated, the NEB granted the approval.
The Government of Canada did not participate in the hearings at the NEB and did not consider it necessary to hold further and dedicated consultations for First Nations.
At the NEB, an important issue was whether the Board was required to make determinations regarding the Crown duty to consult as a result of potential impacts on Aboriginal and treaty rights and whether that duty was discharged by delegation to the NEB.
The NEB granted the approval to Enbridge. The Chippewas turned to the Federal Court of Appeal, claiming that the NEB Act does not provide for such delegation and that the Crown duty had to be fulfilled before an NEB decision.
In January 2016, the Court refused to invalidate the approval and dismissed the appeal. But in contradiction with what was decided in the Clyde River case, this time the Federal Court underlined that the NEB, an economic regulator specialized in energy matters, is not necessarily equipped with the expertise to fulfill the Crown duty.
In March, the Supreme Court agreed to hear both cases together and the hearing is now expected to be on November 30, 2016.
In this context, the testing companies have cancelled testing for the 2016 season. Canada’s highest court now has an opportunity to clarify the requirements for involvement of Indigenous Peoples facing resource development on their territories.
The decisions of the Supreme Court may have important implications for the processes of review and consultation in the coming months of TransCanada’s Energy East project, which as proposed, would pass through or near 150 First Nation and Métis communities. SOURCE
Franklin Gertler is a Montreal-based lawyer who has practised Aboriginal, environmental and energy law for over 30 years.
Metis National Council President Clement Chartier, left, and David Chartrand, president of the Manitoba Metis Federation, centre, celebrate following the decision at the Supreme Court of Canada in Ottawa on Thursday, April 14, 2016. SEAN KILPATRICK / THE CANADIAN PRESS
On April 14, 2016, the Supreme Court of Canada (SCC) rendered its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12.
The Plaintiffs (Appellants) in the case are the Congress of Aboriginal Peoples (a corporation representing Métis and non-status Indian peoples throughout Canada), as well as several individuals identifying as Métis or “non-status Indian” (i.e. persons with Indian heritage that are not recognized by the federal government as registered under the Indian Act, RSC 1985, c I-5). They sought declarations from the SCC that the federal government has legislative authority over Métis and “non-status Indians” pursuant to section 91(24) of the Constitution Act, 1867, that the federal Crown owes a fiduciary duty to the Métis and non-status Indians, and that it must consult these groups on a collective basis concerning all their rights and interests as Aboriginal peoples.
The Plaintiffs had no choice but to initiate legal proceedings because the federal government claimed it was constitutionally precluded to assume legislative authority over Métis and non-status Indians, while the provincial governments also refused to act on the basis that the matter was a federal one. As described by the SCC, this put the Métis and non-status Indians in a sort of “jurisdictional wasteland”.
In its decision, the SCC declared that the Métis and non-status Indians were “Indians” within the meaning of section 91(24). However, it declined to grant declarations that the federal government owed these two groups fiduciary duties and consultation obligations under section 35 of the Constitution Act, 1982 because these rights and responsibilities were already recognized in law (in cases such as R v. Powley, [2003] 2 SCR 207 and Métis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623).
The key principles set out by the SCC in the Daniels decision can be summarized as follows:
The historical, philosophical and linguistic contexts establish that the term “Indians” in section 91(24) includes all Aboriginal peoples, including non-status Indians and Métis (para. 19);
The term “Indian” or “Indians” in the constitutional context can have two meanings: a broad meaning, as used in section 91(24), that includes both Métis and Inuit and can be equated with the term “Aboriginal peoples of Canada” used in section 35 of the Constitution Act, 1982, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples (para. 35);
Determining whether particular individuals or communities are Métis or non-status Indians and therefore “Indians” under section 91(24), is a fact-driven question to be decided on a case-by-case basis (para. 47); and
For the purposes of the federal legislative authority set out in section 91(24), the concept of Métis should be given a broader meaning than in the context of section 35 of the Constitution Act, 1982. In Powley, the SCC referred to the following three criteria for determining who qualifies as Métis for purposes of section 35: (1) self-identification as Métis, (2) an ancestral connection to an historic Métis community, and (3) acceptance by the modern Métis community. In the Daniels decision, the third criterion – community acceptance – was found irrelevant for the purposes of section 91(24). Indeed, the SCC confirmed that there is no principled reason for presumptively and arbitrarily excluding people from Parliament’s protective authority on the basis that they may no longer be accepted by their modern Métis communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools (para. 49).
The primary significance of the Daniels decision relates to responsibility for social programs and services. Prior to this decision, provincial and federal governments had a history of denying jurisdiction, and hence responsibility for matters such as the health and education of the Métis and non-status Indians. The Daniels decision does not deal with the collective Aboriginal rights of these groups over land and natural resources because the SCC’s prior decisions already recognized these rights. However, it arguably confirms that there is no hierarchy of Aboriginal rights based on the category of Aboriginal group to which one belongs. In practice, industry had generally been taking this approach. The case is therefore of more significance to governments than it is to industry.
Loans help build infrastructure and autonomy for First Nations, while the Indian Act does not
Magnilion / iStockphoto.co
By Cherie Brant, reposted from LawyersWeekly, Apr 22, 2016
Development on First Nations land is an important and increasingly necessary imperative. First Nations communities need massive infrastructure development but equally important are the needs to work alongside industry, attract outside investment and realize the value trapped in the lands that are governed by the Indian Act.
I started my legal practice with a simple goal in mind: to assist First Nations to become prosperous and sustainable. What I quickly learned was that the Indian Act had the effect of crippling progress and creating an unrelenting cycle of administrative dependency. Put simply, the Indian Act inserted the Department of Indigenous Affairs as the final decision-maker and signatory to real property development decisions on behalf of First Nations. First Nations, banks and other third parties see the government as an unwilling party forced to participate in these transactions. The Indian Act must be eliminated if Canada’s First Nations lands are to be put to sustainable uses that create strong communities for our people. Now, to eliminate the Indian Act is no simple task. The legislation holds the baggage of a historical relationship between indigenous people and the Crown and there is not enough political will to have it eliminated entirely — or not just yet.
Indigenous nations in Canada have always retained their inherent rights to self-govern and realize their ambitions. Canadians are reminded of this through recent decisions from the Supreme Court of Canada such as Tsilhqot’in Nation v. British Columbia [2014] SCC 44. In Tsilhqot’in, the Supreme Court is seeking to reconcile the historical relationship between Canada and its indigenous nations by setting forth a legal test for establishing title (i.e. Aboriginal title) over lands that meet the Court’s test of historical occupancy, exclusivity and continuity of title.
While the test for Aboriginal title was long overdue and the Tsilhquot’in decision will continue to bring about more legal certainty and affirm inherent jurisdictions, other tools are also available to assist First Nations to realize their objectives for autonomy and self-sufficiency — each with its advantages/disadvantages and no one perfect solution.
The First Nations Finance Authority (FNFA) is a creation of statute (First Nations Fiscal Management Act, 2005) as a not-for-profit constituted by First Nations members to pool capital requirements and seek long-term low cost borrowing from capital markets. In June 2014, the FNFA announced an inaugural $90 million capital raise to enable 14 First Nations to access long-term loans to build and make improvements to roads, water and waste systems, power/lighting, public buildings and other local infrastructure as well as provide economic opportunities to use funds for both on and off reserve investments. Since that time, the number of First Nations members has increased to 52 and the total amount of capital accessed has increased to $140 million. The FNFA also expects to announce another capital raise for $130 million sometime in the second quarter this year.
All 634 First Nations across Canada should become borrowing members of the FNFA, as membership will increase their knowledge and understanding of how to access financing and can contribute to breaking the cycle of dependency when First Nations see the benefits of autonomous decision-making. Now let’s be clear, autonomy comes with risk and the FNFA loans also come with risk. The FNFA provides funding from revenue streams without collateral. However, borrowing obligations still contain promissory note pledges that ultimately back stop the revenue streams. As a result, the FNFA has attracted criticism from those who are seeking fully non-recourse loans. The FNFA, nonetheless, provides valuable access to capital at low borrowing rates for long terms (up to 30 years) and should be tailored for those types of investments that are difficult to finance, such as infrastructure development on reserve lands or construction financing for economic development projects both on and off reserve.
Another tool is the First Nations Land Management Act (FNLMA). First enacted in 1999, the FNLMA allows First Nations to opt out of parts of the Indian Act and put in place a land code that sets out the new rules of engagement when seeking to access and develop on-reserve lands. Barriers to development are removed by the FNLMA as First Nations signatories no longer need the involvement of the federal government in decisions affecting reserve lands. So far, 95 First Nations have signed on to the FNLMA and increasingly others are recognizing that the autonomy of decision-making leads to outside investment and can contribute to long-term economic sustainability for First Nations. A 2009 study by KPMG found that $100 million in external investment had been created among 17 FNLMA communities, resulting in thousands of jobs for both First Nations and non-First Nations members.
The most recent initiative in my view has been the adoption of the political accord between 133 First Nations in Ontario and the province. Premier Kathleen Wynne and Ontario Regional Chief Isadore Day signed this historical accord in June 2015 with the goal of resetting the relationship between First Nations and Ontario. The accord challenges both the province and First Nations to think creatively about how to improve the quality of life for First Nations and create a better future for First Nations children and youth. Access to capital will no doubt need to be a part of that creative thinking if both the province and First Nations are to realize their ambitions of strong First Nations governments. SOURCE
Cherie Brant is a partner with Dickinson Wright whose practice is in commercial transactions involving Aboriginal groups.
It seems the country finally is determined to confront the disgrace of its treatment of Aboriginal Peoples. Good. But anyone expecting dramatic, rapid solutions, or promising them, is dreaming or dissembling. Sir John A. Macdonald’s legacy on this front is too deep, and has done too much harm, for that.
The latest community in crisis is the Attawapiskat First Nation, wracked by suicides. The politicians who raced to the scene this time — Indigenous Affairs Minister Carolyn Bennett and MP Charlie Angus — appear entirely genuine in their desire to help. Prime Minister Justin Trudeau and his cabinet are seized with the issue and have budgeted more than $8 billion to redress. It’s impossible not to get the sense that this time is different.
But there are some structural problems that stand in the way.
The first is the Indian Act, drafted in 1876, and a racist horror show. It explicitly confers upon “Indians,” a legal and social status akin to that of children. In creating geographically separate reserves and a race-based system of distinction, it enshrined Canada’s very own apartheid regime.
The second is that many of Canada’s 600-plus “Indian” bands, though not all, remain located in places where there is no natural economy in which a plurality of residents have a hope of getting a job that can earn a living. Attawapiskat is a prime example.
The third is that the reserve system was designed to deny private property rights to most residents, though this is changing on some reserves, propelled by reformers such as Chief Manny Jules. Home ownership, of course, is the nearly universal Canadian path to middle-class savings and a pension.
The fourth is that the system of basic supports enshrined in the reserve system — inadequate though these benefits are when compared with gainful employment — is still preferable for many reserve dwellers to being thrust into a southern urban setting where all sense of community is gone.
Though hundreds of thousands have voted with their feet, making the off-reserve population now larger than the on-reserve, the system still perversely incentivizes the preservation of hopeless Bantustans. It remains to be seen if the Supreme Court of Canada’s extension of “Indian” status to Metis and off-reserve people will change this.
And a fifth great obstacle is that the internal aboriginal governance system in Canada is a relic of the 19th century, which denies aboriginal people the possibility of effective representation by population. The Assembly of First Nations is just that, an assembly. It is not a legislature. Its grand chief has no authority to speak for or negotiate on behalf of its members.
Then, add the tortuously slow pace of land-claims settlements. Taken together, it sheds some light on why so many aboriginal activists are so suspicious of exhortations to “abolish the Indian Act,” and the reserve system, on grounds of their egregious racism. It is a horrendous system, virtually all agree. But although some bands are ready to move beyond the despised Act, and many have, there is great variance from band to band in the degree of preparedness.
All of which is why, even as the Liberals strive for reform, they must be aware progress will be slow, with individual bands’ successes punctuated by further tragedies, in no small part because the process must be led from the ground up. This is the lesson of every previous failed attempt, from Jean Chretien’s White Paper in 1969 to the First Nations Education Act in 2014. Reform imposed from above will fail and that rules out speed.
So, begin the transformation, absolutely. But let’s not pretend it will be quick.
Media Release, reposted from SaultOnline, Apr 18, 2016
Anishinabek Nation Grand Council Chief Patrick Madahbee commented today on the Supreme Court of Canada in the Daniels case relating to the rights of the Métis and non-status Indians.
“Métis are recognized as S. 91-24 ‘Indians’, but this doesn’t necessarily translate into legislation or funded services as was the case in 1939 with the Inuit also getting the same designation,” says Grand Council Chief Madahbee. “The issue of non-status Indians was created by the disenfranchisement of many of our people by the federal Indian Act. Most non-status Indians belong to First Nations communities and the problem would not have been created if Canada was not in the business of determining Indian Status and recognized the right of First Nations to determine their own citizens.”
The Anishinabek Nation’s E-dbendaagzijig “Those who belong” draft citizenship law states that every citizen of an Anishinabek First Nation is an Anishinabek Nation citizen and that a person is entitled to be an Anishinabek Nation citizen provided that the person can a) can trace their desendancy through at least one parent to the original people of an Anishinabek First Nation b) has at least one parent who is a member currently registered with an Anishinabek First Nation or c) the person can trace their desendancy through at least one parent to a status Indian who is registered or entitled to be registered with an Anishinabek First Nation.
“The Supreme Court may have muddied the waters by potentially equating Métis rights with those of non-status Indians,” says Madahbee. “The impact on First Nations is unclear however a lot will depend on the federal response. As we know there is only one fiscal pie and First Nations resources are already stretched thin.”
The Anishinabek Nation established the Union of Ontario Indians as its secretariat in 1949. The UOI is a political advocate for 39 member communities across Ontario, representing approximately 60,000 people. The Union of Ontario Indians is the oldest political organization in Ontario and can trace its roots back to the Confederacy of Three Fires, which existed long before European contact.
