On the Road Again 2014 Interium Land Claims

In the past few weeks there have been two significant decisions made by the Canadian Supreme Court as to the rights of First Nations communities to be in control of their ancestral territory. The claims on the surface present, at best, a mixed message as to what rights the Indigenous people of Canada have in terms of controlling the land's resources. At worst the court rulings have made it impossible for a significant percentage of the Canada's  Aboriginal peoples to have any control over the resources.

The first court decision involved a community in BC ( Tsilhqot'in First Nation). The courts seem to have said that not only do government and/or big corporations  have to "consult" with the communities before any resource extraction occurs but in fact will have to negotiate (in the true meaning of negotiation where the party who has title to the land controls what happens on the land) an agreement with the community. 

The second court decision stated that the community (Grassy Narrows First Nation north of Kenora, Ontario) have no right to control the resources on their traditional lands; that the Province of Ontario has the right to award those resources to a company that wanted to extract them. While the First Nations community would be consulted with, they would have no control over the final decision. It should be remembered that the community of Grassy Narrows has been devastated by the forced relocation of their community 60-70 years ago and the leakage of mercury by a paper mill, into their water sources in the 1960s that caused wide spread health problems. They also had for a number of years maintained the longest standing blockade  to protect their forest of any group in Canada.

The court rulings would appear to be almost diametrically opposite. Why? The difference appears to rest on whether or not there had been a treaty signed and what rights those treaties assigned to whom. In the case of the B.C. decision there had been no treaty signed and therefore the government is obliged to negotiate in good faith, recognizing that the other party has full rights and control over the resources on their territory. In the case of Grassy Narrows - there is a long standing treaty and the court has determined that it is still a valid contract.

In the case of Grassy Narrows it appears as if the courts perceived the treaty as a contract, and that the contract of 150-200 years ago was still valid. The fact that one signatory to the agreement has consistently failed to honour their commitments, that the Indigenous people who signed the original contract/treaty did not understand the concepts outlined in the contract (in what world would a contract be deemed legally when the interpreters were being paid by the company with the most to gain and where there was no one who could validate the interpretations?), or that the Indigenous people who signed the contract/treaty had in fact no legal or moral right to sign such a contract.

It is clearly a misunderstanding of all that is fair and just that a 200 year old contract that was unjust and unfair then and that has not been honoured since, has now been used to strip away all possibility that a community can finally re-assume some self determination and a measure of economic self sufficiency . While it is easy to applaud the court's decision to grant full control over the resources for a community in BC, it is equally as easy (unfortunately) to condemn their decision to do the exact opposite for the people of Grassy Narrows.

Sometimes the law is an ass.