Two types of claims fall under Ottawa’s jurisdiction
Prime Minister Pierre Trudeau, right, and Indian Affairs Minister Jean Chretien, second from right, meet with Nisga’a First Nation leader Frank Calder, centre, on Feb. 7, 1973. The Trudeau government introduced a new land claim policy after a Supreme Court decision ruled the Nisga’a had pre-existing title to their lands based on occupancy and use.(Canadian Press)
In 1969, the government of Prime Minister Pierre Trudeau tabled the White Paper on Indian Policy, which proposed eliminating the Indian Act and native status. This raised an outcry among First Nations, who declared they were sovereign nations and denounced the government’s attempt to extinguish their treaty rights.
In 1973, Trudeau reversed course and his government implemented a new policy to settle aboriginal claims. This was shortly after the Calder judgment, handed down by the Supreme Court, had recognized the Nisga’a First Nation’s pre-existing title to the land based on occupancy and use since time immemorial.
The new policy defined two types of claims:
- Comprehensive claims, concerning aboriginal peoples who had never signed a treaty, and
- Specific claims, aimed at redressing historical wrongs related to treaties or instances where the government had breached its lawful obligation to a native group.
Former PCO clerk Michael Wernick warned that the former justice minister’s directive could ‘gutted at the stroke of a pen.’
Liberal MP Jody Wilson-Raybould, left, issued formal guidelines for lawyers defending the government against lawsuits from First Nations before she was shuffled out of the Justice minister role in January; new Justice Minister David Lametti, Conservative Justice critic Lisa Raitt, and deputy NDP justice critic Murray Rankin have all endorsed those guidelines. The Hill Times photographs by Andrew Meade
Attorney General David Lametti and the opposition justice critics say they will stand behind former justice minister Jody Wilson-Raybould’s instructions to government lawyers, telling them to give fair treatment to First Nations suing the government over treaty rights, after departing PCO clerk Michael Wernick warned Ms. Wilson-Raybould’s instructions could be “gutted” by a new government or attorney general.
Two Canadian lawyers who represent First Nations in treaty cases say the directive was a step toward reconciliation, but only has as much strength as the government of the day gives to it.
“It’s not legislation,” said Kate Gunn, a lawyer with First Peoples Law in B.C. “A lot of it depends on the extent to which government, the bureaucrats are committed to pushing for it to be fulfilled.”
Ms. Wilson-Raybould’s directive included 20 guidelines for the government and its lawyers as they deal with litigation over treaty rights with Indigenous peoples. The guidelines say that government lawyers should not object to First Nations’ claims of historical use of a territory when there are “no conflicting interests” involved; that oral history should be treated respectfully as evidence; that the government should try to settle disputes out of court; and more.
Government lawyers have for years fought back against lawsuits from Indigenous people and First Nations by using “delay tactics” in court that make fighting the cases too expensive for the First Nation or Indigenous group behind the suit, said Scott Robertson, a lawyer with Nahwegahbow Corbiere Genoodmagejiig Barristers & Solicitors and the president of the Indigenous Bar Association of Canada.
Those tactics have included challenging First Nations’ sovereignty over the lands they had long occupied, he said. MORE
Province and First Nations seeking ‘alternatives to litigation’ in confidential discussions
West Moberly First Nations are not backing down from their long battle to stop the Site C dam following Tuesday’s announcement that they will engage in confidential discussions with BC Hydro and the provincial government, says Chief Roland Willson.
“Our position is that the dam should not go ahead,” Willson told The Narwhal. “We think there’s still an opportunity to kill the thing before they flood the [Peace River] valley.”
The B.C. government said in a press release that the discussions will “seek alternatives to litigation related to the Site C dam project.”
“We’re listening to what they have to say,” Willson said. “There may be an alternative [to Site C]. In the discussion we’re going to be talking about how they don’t have to destroy the valley. Our primary focus is going to be about trying to protect the valley.”
The West Moberly and Prophet River First Nations filed civil claims in January 2018 alleging the Site C dam and two previous dams on the Peace River unjustifiably infringe on their treaty rights. MORE
More than 100 scientists from Canada and the US are renewing the call for a moratorium on all new oil sands development, a move they say is necessary in order to combat the climate crisis.
No new oil sands or related infrastructure projects should proceed unless consistent with an implemented plan to rapidly reduce carbon pollution, safeguard biodiversity, protect human health, and respect treaty rights.
The following ten reasons, each grounded in science, support our call for a moratorium. We believe they should be at the center of the public debate about further development of the oil sands, a carbon-intensive source of non-renewable energy. MORE