Consent no Barrier, or is it?

One thing that has been bothering me for a long time is the capitulation of Provincial and Federal Governments to the Indians. You know, those covered by the "Indian Act"? Note that it is not called the "First Nations Act" or any other "modern day" derivative. I for one expect our governments to honour the terms of those treaties. Note that from the Ottawa River westward to the Rocky mountains much of Canada is covered by treaties, some such as the Robertson Superior dating back to the middle of the 19th century.

An article in the September 21, 2015 issue of the Thunder bay Chronicle Journal caught my eye titled  “Can we talk? Study touts free, informed consent as key to resource development” (http://www.chroniclejournal.com/news/national/can-we-talk-study-touts-free-informed-consent-as-key/article_eaa3c030-4a9a-5bd5-9674-15f3b52de7b8.html). It describes an attempt by a group to rewrite history including the terms of existing treaties in the false hope that by caving in to extortion, moving mining projects especially, forward will become easier to the point of ending the current impasse we see at the Ring of Fire.

The articles of Treaty 9 for example, the treaty that covers the Ring of Fire area, are very explicit: “the said Indians do hereby cede, release, surrender and yield up to the government ..., all their rights titles and privileges” with the  “right to pursue their usual vocations of hunting, trapping and fishing ... subject to such regulations as may from time to time be made by the government ... saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”

Three times the Supreme Court has issued rulings in which it invoked a duty to consult: 2004 Case 73 Haida vs. BC; 2004 – Case 74 Taku Tlinget vs BC; and 2005 – Case 69 Mikisew Cree vs. Canada. In the first two, as little of BC is covered by treaty, active negotiations were, and still are, in place and the BC Government attempted to deal away rights they had no title to and were chastised in that they had a duty (Honour of the Crown) to consult with those tribes they were negotiating with. The third on the other hand dealt with First Nations covered under Treaty 8, with very similar articles as Treaty 9. In this case the Federal Government contracted the construction of a winter road through the Mikesew reserve without consulting them. This was further complicated by having a “200 metre no firearm corridor” that impacted their right to hunt. Again the Supreme Court chastised the government, and rightly so, as First Nations rights to reserve lands can only be affected “with their consent first had and obtained”.

An important aspect of the Mikisew Cree decision is that the Supreme Court, while agreeing there was a duty to consult explicitly states that it does not grant the right of “veto”, in other words the ability to grant consent.

So while there can be, and the Supreme Court has left the threshold rather vague, a need for consultation, nowhere in either the treaties or in any applicable Supreme Court ruling have First Nations, when they have ceded their rights, retained the right to give consent. And now the Boreal Leadership Council wishes to give them something they don’t have in the hope it will make getting new projects approved? For example try that with the First Nation at Big Trout Lake (Kitchenuhmaykoosib Inninuwug) and see how far you get. Nowhere, and that indeed is a barrier.