Intro
The Natural Resources Transfer Agreement (NRTA) has always been an issue with First Nations. First Nations believe that the NRTA breached the Treaty between First Nations and the Crown; therefore modified the treaty without First Nations consultation and consent. Canada also breached its due process by constitutional amendments to change provisions of the constitution. The NRTA has far-reaching implications for First Nations. The First Nations are now seeking some remedy to address the outstanding issues of the NRTA. This essay will examine the original Treaty relationship between First Nations and the Crown. It is also necessary to examine that Canada is a federal state with division of powers according to the Constitution. The spirit, intent, and content of the NRTA will also be discussed. The essay will also briefly outline the First Nations provisions in the NRTA like hunting, fishing and trapping. To provide the legal base to these outstanding issues some Supreme Court decisions relevant to the NRTA will be mentioned. Finally the essay will suggest some recommendations like Treaty Land Entitlement (TLE) and natural resource share revenue from the land.
First Nations and Canada
To understand the trust/fiduciary relationship of Canada and First Nations, one needs to understand the relationship basis of First Nations and Canada, along with the Aboriginal rights which flow from being First Nations of North America. It is a legal fact as stated by the Supreme Court that, “First Nations were already here with distinctive societies, customs and their own laws.”[1] Before the arrival of Europeans, Aboriginal rights include title, government and including their ways of looking after themselves. The Royal Proclamation of 1763 is a declaratory recognition of Aboriginal rights by the Crown. It is not an instrument that accords rights; it is simply an acknowledgement of the rights of First Nations people. The elders of First Nations strongly believe through their teachings, language and history, their rights come from the creator.
The legal basis for the federal government to be involved in, “Indians and the lands reserved for Indians”,[2] is within the Constitution Act 1867 in Section 91[24]. The Constitution of 1982 includes sections 25, 35, and 37 which recognizes and affirms First Nations rights, and First Nations are of the opinion this obviously must include the right of self-government. The Indian Act is a passed pursuant to section 91[24]. It is administration legislation for management and control for First Nations and allows a limited local government like band councils. The Indian Act does not address the Aboriginal rights of First Nations. Treaties were negotiated with the Crown to deal with the land transactions to establish a relationship of the sovereignty of First Nations as holders of title to the lands, and the sovereignty of the Crown, the government for the settlers. This process did not include a conquest or defeat in war nor any surrender by First Nations. The Treaty process before and shortly after 1867, established the right for First Nations more than any other citizens by the very fact that First Nations were the original owners of North America.
According to Rarihokwats (historian), Treaty negotiators had templates in place that would rival the best modern business arrangements in which an Indigenous nation hires an ‘Indian Agent’ to sell off the opened-up lands. Income is remitted to Ottawa and placed in a ‘capital account’ to the credit of the people; interest is earned which goes into a ‘revenue account’, and government takes off 10% as an administration fee. Indigenous nations remain totally independent and self-sufficient. This is from the Archibald papers in the Ottawa archives and in the early Annual Reports. In 1871, Treaty negotiation began. Farming reserves were set up for those who wish to farm; economic activities continue on lands not taken up for settlement. “Treaties were negotiated for livelihood and economic transition for future generations”.[3]
Rarihokwats articulates this critical time period that followed treaty changed the fortune of Aboriginal people and led to poverty and the current underfunding crisis today. Prime Minister John A. Macdonald floods the prairies with immigrants attracted to offers of ‘free land’ – but Sir John fails to buy the lands he is giving away; huge tracts of land are given away to lure in railway investors – but no purchase of lands from Indigenous nations. Soon after poverty sets in, the Indian Act legislation and restrictive policy within control the lives of First Nations.[4]
The above description of the relationship of First Nations and Canada provides the assumed legal basis of funding arrangements for First Nations. A fiduciary relationship arises because the opening up of lands for settlement is handled by the Crown pursuant to the Royal Proclamation. This arrangement places fiduciary obligations on the federal government as the agency responsible for fulfilment of the Crown’s responsibilities. Further, the Supreme Court of Canada has built strong foundations under the trust/fiduciary relationship which must govern the federal government's relationship with First Nations.
There are two key reasons why the federal Parliament does not have unlimited powers to use section 91 (24) as it pleases. The first is that because of the Treaty relationship, as such, the Crown is obliged by a trust/fiduciary relationship created by the fact that the Crown correctly set itself up as the sole beneficiary of any transfer of Indian lands or resources. That reality cannot be changed by uninformed order of Parliament. Secondly, the Constitution Act 1982 has guaranteed the recognition and protection of Aboriginal rights.[5] Recent Supreme Court decisions like Guerin and Sparrow have recognized trust/fiduciary obligations to the First Nations including land.
Canada as a Federal State
Canada is a federal state; the concept of federalism is important to understand the role of the federal and provincial government. This concept is based on the principle of a nation similar to Great Britain; the Constitution of 1867 was based on similar principles of that of Great Britain. The Canadian Constitution of 1867 outlines the divisions and powers between the federal and provincial government. Sections 91 are the powers of the federal government and section 92 are the powers of provincial government. Section 109 clearly outlines about the constitutional control, jurisdiction over land and natural resources. This means it is the provinces according to the constitution that have the jurisdiction about lands and resources. First Nations Treaties are not mentioned but section 91[24] of the Constitution provides a legal basis about Indians and lands reserved for Indians.
NRTA: Spirit, Intent and Content
The NRTA came into effect 1930 confirmed by the Constitution act of 1930. The government of Canada in its original Constitution 105 provides jurisdiction of land to the provinces. It was only in 1930 that the provinces of Saskatchewan, Manitoba and Alberta, received jurisdiction and transfer of the administration of natural resources and the control of Crown lands from Canada to the provinces. NRTA was part of the Constitution of 1930. NRTA transferred control in administration of resources and lands to the provinces. For First Nations, Canada requested sufficient unoccupied crown lands to fulfil outstanding treaty land entitlement obligations to First Nations. This provision in the NRTA is the major discussion at this time. First Nations think that the transfer of jurisdiction over lands, waters, and natural resources, within traditional treaty territories of the First Nations, was contrary to the spirit, intent, and terms of Treaty. According to Manitoba First Nations, the NRTA infringed their rights to hunting, fishing, and trapping along with water rights and natural resources.[6] [7]
NRTA Provisions: hunting, fishing and gathering
In Manitoba, three groups begin plans to turn Northern Manitoba rivers in a source of hydro electric power for Manitobans and beyond in the late 1950’s. These groups were Manitoba Hydro, the Government of Manitoba, and the Canadian Federal Government; there was no First Nations consultation. Hydro began operations leaving First Nations and the environment adversely affected. In the 1970's Manitoba Hydro signed a treaty, the Northern Flood Agreement (NFA), with five of the communities affected, to build hydroelectric dams. This was signed to address grievances of the communities affected but there was little to no action from this agreement in the years that followed.
First Nations view the NFA as a stall tactic and in the 1990’s four of the communities signed Comprehensive Implementation Agreement (CIA) and Statement of Understandings (SOU) to proceed. However, this does not compare to other agreements in Canada. This is neither a livelihood nor a resource revenue sharing model and alters Treaties which are meant for both parties to share benefits of resources, but is rather a business partnership with extinguishment clauses – I.E., in the Wuskwatim deal, Nelson House First Nation assumes all financial liability, is tied to the success of future development, limits their ability to act as stewards of their own traditional resources and cannot seek redress through legal means in the future. The SOU does not support the hunting way of life, in fact, moves in a direction that diminishes the possibility of a future for northern hunters.
The NRTA gave jurisdiction to province, which violates the Treaty making process. This is why a community in Cross Lake First Nation’s position, who did not sign a CIA, holds a strong case for land rights and legal action. Recent Supreme Court decisions support First Nation Treaty rights to land- I.E., Delgamuukw case. Further supported by international law, and Section 35 of the 1982 Constitution, that is why the so-called implementation agreements signed in the 1990’s, which serve to extinguish rights promised in the NFA, are unconstitutional, and will not stand in court challenges that may rise. NRTA transfered all natural resources to the Prairie Provinces with the exception of lands reserved to Indians and hunting and fishing rights, with respect to unoccupied crown land.[8]
The Conflicting View between First Nations, Federal Government and the Provinces
Treaties were to open the lands for settlement, immigration, and trade. Nowhere is there any suggestion at all that there was mention made that as a result of Treaty, the First Nation signatories would be forever excluded from use, control, and benefit of the natural resources that had been previously enjoyed.
The federal government has faced counter-pressures to First Nation demands that the federal government deal with natural resources within Treaty areas in concurrence with its trust, Treaty, and constitutional responsibilities. The provincial and territorial governments have been persistent, determined and vocal in their demands that they, not the federal government, should have complete and unrestricted control over natural resources within their borders.[9]
The three Prairie Provinces have all benefitted financially in different senses. The major industry Alberta is the tar sands and they have long been the economic power province in the country. Recently in Saskatchewan, they have went from a ‘have-not’ to a ‘have’ province with the boom of the pot ash mines, also known as pink gold. In Manitoba, there is hydro development yet the province remains a ‘have-not’ province due to circumstances like flood crises year after year. The Universal Health Care Plan in Canada is bankrolled by more than ten percent of Canada’s Gross Domestic Product (GDP) revenues from resources. It is ironic resources taken from First Nations territory are allowing Canadians to enjoy a standard of health among the top ten of all countries in the world, while First Nations health sits closer to 100 on the United Nations index. Experts agree the most significant factor of poor health is poverty; First Nations do not receive any revenue sharing from resources in their territory.[10]
In Saskatchewan, Perry Bellegaurd said, “We're looking at challenging that NRTA, but we call it resource benefit sharing”.[11] When word that the First Nation Chiefs planned to legally challenge the potash industry resonated, “Canada’s Premier Brad Wall shot back by brandishing legislation dating back to 1930. ‘If there’s any attempt from a legal standpoint [to claim ownership],’ he said, ‘we would defend the fact that the natural resources of Saskatchewan are the exclusive jurisdiction of the province of Saskatchewan according to the Natural Resources Transfer Act of 1930.’ Mr. Wall said the Act ‘sets out whose jurisdiction this is and we obviously feel very confident in that being the position of the province’”.[12] The problem in Saskatchewan is that the prairie did not receive the title to the land and jurisdiction until 1930; whereas the eastern province like Ontario, New Brunswick, Nova Scotia had the original title specified under the constitution. The BNA act in 1930 gave Constitutional effect of Natural Resources Transfer Act (NRTA), the First Nations position is the NRTA is unconstitutional because First Nations were not consulted, consented, or agreed to any changes and this was illegal. According to Frank Tough, the NRTA has a weak position according to their different opinions from each of the provinces. Frank tough also indicates that the NRTA was agreed on without proper historical context. In other words, the NRTA was established without a thorough legal analysis of history and treaty rights. Because NRTA lacks a historical base, the law may appear weak in defense of NRTA.[13]
Another example is Keeseekoowenin First Nation. The original treaty also included fishing rights on the west side of Clear Lake. When the NRTA was established in 1930, Riding Mountain National Park was also established shortly after. During this process the fishing and land rights within the national park were taken away. Later through research and court challenge this land was reverted back to reserve status as was suppose to be in the original land status of Keeseekoowenin First Nation. This is a classic example of a First Nation with no legal right at the time, no consent and consultation or any public surrender to land; therefore, the NRTA violated the treaty between Keeseekoowenin First Nation and the Crown. This also gives an example when NRTA was established; it dishonoured treaty obligations to First nations. In this view, NRTA did not have a strong legal position because it lacked a proper analysis of the historical content of treaties.[14]
Supreme Court Decisions: Blais, Horseman, Badger
The Supreme Court of Canada has determined that if any uncertainty is sensed, such reservations are to be read against the drafters of the documents, and in favour of the First Nations. The evolution of law - strongly in support of the First Nation position, must be seen as still at its infancy and in continuing evolution.[15]
On February 10th, 1994, Ernest Blais and two other men went hunting for deer in the district on Piney, in the province of Manitoba. At the time, deer hunting was prohibited in the area by the terms of the wildlife regulations prior to the Wildlife Act of Manitoba, 1987. In the court’s view, R. v. Blais raises the issue of whether the Métis are Indians under the hunting rights provisions on the Manitoba Natural Resources Transfer Act. The court concluded that they are not. This confirms that the original treaties with First Nations are what the court recognizes.
In the case of R. v. Horseman, Bert Horseman, a treaty Indian, went moose hunting in the territory north of his reserve and shot a moose in the spring of 1983. The moose was too large to bring back to the reserve so he went got other band members to help him. When he returned, there was a grizzly bear there that had begun to eat the moose, the bear charged. Mr. Horseman shot and killed the grizzly bear, skinned it and took the hide. One year later, in spring of 1984, he applied for and was issued a grizzly bear license under the Wildlife Act and sold the hide. The conflict is Mr. Horseman did not have a license under the Wildlife Act to hunt grizzly bears or sell their hides at the time he shot the grizzly. Even though, and acted in good faith, he was charged with trafficking wildlife.
In the case of R. v. Badger, treaty Indian Wayne Badger was caught hunting on private property on Treaty 8 territory and was charged under the Wildlife Act. In this case, three questions must be answered. First, do Treaty 8 Indians have the right to hunt on privately owned land within territory surrendered under that treaty, second, have the treaty rights been extinguished as a result of the NRTA; and third, what extent does the Wildlife Act extend to the claimant. The conflict of interest was whether the same means of earning a livelihood would continue after the treaty as existed before it, or if the right could be limited by government regulations passed for conservation purposes. The judge then turned to the issue of the NRTA. He found that it extinguished the right to hunt commercially but not the right to hunt for food. When interpreting any treaties, they must be given their natural meaning as understood by the Indians at the time that they were signed. The limitation of the hunting treaty should be based on visible, unsuited land use. The Judge considered whether the Wildlife Act, which required hunting licenses, violated their aboriginal right to hunt. He found that it did violate their rights and could not be justified under the Sparrow test. [16] These Supreme Court decisions clearly indicate that the original treaties may have been modified but not extinguished. There was no clear intent by the crown to extinguish treaties, but merely to attempt to control and manage them under provincial regulations. This non-extinguishment is one of the reasons why First Nations have a strong case in their favor.
Section 13 of the NRTA states, “In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.”[17] These decisions confirm that the original treaty had a larger view of hunting, fishing and trapping rights. NRTA limited these rights.
TLE and Revenue Sharing
Following the Numbered Treaties, surveying for reserves was to follow a formula allocating 640 acres to each family of five, or an average of 128 acres per person. Problems that ensued were; First Nations populations fluctuated, or surveyors simply did not provide enough land. The bottom line is most bands fell short of the required size.
Officials worked under the assumption that the TLE had been met. First Nations argued the original population estimates were too low, necessitating additional lands and another survey. Section 10 of the Natural Resources Transfer Agreement recognized that the federal government had yet to fully meet its TLE requirements, and took steps to ensure that: (1) the provinces would have a role in TLE; and (2) provincial Crown land would be needed to fulfil First Nations TLE. Required to provide lands nonetheless, provincial authorities had to decide whether to use the population of the band at the date of the first survey (DOFS) or the population at the most recent survey. The second survey, which First Nations insisted to be used, meant multiplying the most recent official population by 128, and then subtracting that from the total from the amount of land originally received to arrive at the amount still owed the First Nation. The provinces all objected to the first formula, instead arguing for the DOFS formula. The federal government proposed a compromise formula based on the existing population and receiving 23% of land owed.
With the TLE was dragging on, the Minister of Indian and Northern Affairs Canada, Judd Buchanan wrote to all the premiers urging them to settle outstanding TLEs. The stumbling block was about who was going to pay, the provinces or the federal government. First Nations filed a statement of claim against the federal government to go to court; this resulted in the creation of the Office of the Treaty Commissioner and the equity formula. A number of First Nations have used their TLE money to purchase lands and lease to farmers, generating significant revenues. Others have bought land in urban areas, building office or retail buildings.[18]
Conclusion
In 1930, the federal government entered into a series of agreements with the Prairie Provinces through which it committed to the transfer to them of unoccupied lands, monies, and resources. There was no consultation with the First Nations, who were at the time legally prohibited to engage in legal actions on their own behalf. In making the transfer, the federal government did not consider or protect the First Nation interests. The Agreements were later confirmed by Parliament and by each of the three provincial legislatures.The conduct of the federal government appears to be contrary to its Treaty and fiduciaryresponsibilities. To the extent that the transfer breached obligations of the Crown to the First Nations, Parliament's action could be considered void. A variety of grounds for legal action are suggested by analysis of the historical record.[19] The NRTA spans across Treaties 1-8, however, criticism is that the leaders are too divided and cannot work together. In other words, leaders have to have a political process, established by First Nations and the Prairie Provinces to seek redress to fiduciary/trust obligations from the Crown.
[1] "The Supreme Court of Canada’s Decision in Marshall and Bernard: available at http://www.grantnativelaw.com/pdf/MarshallandBernard_TitleImplications.pdf. (Accessed March 5, 2012).
[2] "The Constitution Act, 1867." The Solon Law Archive. http://www.solon.org/Constitutions/Canada/English/ca_1867.html (accessed April 2, 2012).
[3] Ray, Miller, and Tough, “Bounty and Benevolence”: A history of Saskatchewan Treaties. (Montreal: McGill-Queens University Press, 2000), p. 73, 77.
[5] First Nations: The Forgotten Factor in the Transfer of Natural Resources to the Prairie Provinces. A Preliminary Research Report. 1994.
[8] Martin, Thibault, and Steven M. Hoffman. Power struggles. Winnipeg: University of Manitoba Press, 2008.
[9] First Nations: The Forgotten Factor in the Transfer of Natural Resources to the Prairie Provinces. A Preliminary Research Report. 1994.
[10] Jason Clemens. “Turning point 2014”:Reforming Canada Health Transfer. Accessed 20 February 2012 at: http://www.ipolitics.ca/2011/10/27/jason-clemens-turning-point-2014-reforming-the-canada-health-transfer/
[11] 37th PARLIAMENT, 2nd SESSION, Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources. /EVIDENCE :CONTENTS.Tuesday, June 10, 2003. Accessed March 23, 2012 at:http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=988599&Language=E&Mode=1&Parl=37&Ses=2
[12] Ebrahimi, Helia . "First Nations chiefs plan legal Potash challenge - Telegraph." Telegraph.co.uk - Telegraph online, Daily Telegraph, Sunday Telegraph - Telegraph. http://www.telegraph.co.uk/finance/newsbysector/industry/mining/8065143/First-Nations-chiefs-plan-legal-Potash-challenge.html (accessed March 2, 2012).
[13] Tough, Frank. "Introduction to Documents: Indian Hunting Rights, Natural Resources Transfer Agreements and Legal Opinions From the Department of Justice." Native Studies Review 10, no. 2 (1995): 121.
[14] Thompson, Dorfman, Sweatman. For Reason of Their Own: The Removal of Kessekoowenin Band From The Clear Lake Indian Reserve. Draft #3. 1994.
[15] First Nations: The Forgotten Factor in the Transfer of Natural Resources to the Prairie Provinces. A Preliminary Research Report. 1994.
[16] Borrows, John, and Leonard Ian Rotman. Aboriginal legal issues: cases, materials & commentary. 2nd ed. Markham, Ont.: LexisNexis Butterworths, 2003. Print.
[17] "Schedule - Manitoba Natural Resources Transfer Act." Available at http://web2.gov.mb.ca/laws/statutes/ccsm/n030e.pdf (accessed March 12, 2012).
[18] Belanger, Yale Deron. "Cowessess First Nation: Self-Government, Nation-Building, and Treaty Land Entitlement." In Aboriginal self-government in Canada: current trends and issues. 3rd ed. Saskatoon: Purich Pub., 2008. 240-258.
[19] First Nations: The Forgotten Factor in the Transfer of Natural Resources to the Prairie Provinces. A Preliminary Research Report. 1994.
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