Few
Canadians and even fewer international investors have any
appreciation of the fact that treaty rights of First Nations are
enshrined in Canada's Constitution Act of 1982, section 35.
35.
(1) The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.
(2)
In this Act, "Aboriginal Peoples of Canada" includes the
Indian, Inuit and Métis peoples of Canada.
(3)
For greater certainty, in subsection (1) "treaty rights"
includes rights that now exist by way of land claims agreements or
may be so acquired.
(4)
Notwithstanding any other provision of this Act, the aboriginal
and treaty rights referred to in subsection (1) are guaranteed
equally to male and female persons. |
The Supreme Court of Canada has
reaffirmed these provisions. In various decisions since 1982, the
Court has noted that the Crown has both a moral and legal obligation
to uphold treaty rights. Further, it has reaffirmed the term
“existing aboriginal and treaty rights” by noting they are extant
in areas not covered by existing treaties viz most of British
Columbia. Further, it has stated that the “honour of the Crown”
obligates governments to consult with First Nations in matters of
land use whether it takes place in non-treaty areas or in treaty
areas outside of reserves.
A more detailed treatise on the
evolution of the relationship between the Crown and First Nations is
presented here:
It is a very dynamic area of law and
opinion varies greatly within and outside First Nations.
A
trans-mountain pipeline to move bitumen to Canada's west coast will
not happen any time soon. In a very real sense, I can sympathize
with the misgivings of First Nations – the people with the most to
lose if an environmental catastrophe takes place either through a
rupture of pipelines and storage facilities or leakage from tankers.
Further, BC has a record of major earthquakes and many seismologists
feel that the next “big one” is due reasonably soon on the basis
of geological evidence.
The implications are horrendous. While
the damage to infrastructure from initial shockwaves can be very
significant, the follow-on impacts are even more devastating:
Low-lying
land masses are at highest risk for extensive flooding in the event
of a tsunami. Damage to coastal British Columbia would be great. A
final concerning consequence of a major earthquake is that of
landslides. Although surface soil is mainly made of compact layers of
silt or clay, the less compact layer below is composed of sand and
highly susceptible to liquefaction. Sandy soils that are
water-saturated can behave more like a liquid than a solid during an
earthquake (7). Movement of the more solid surface layer over
liquefied sand can destabilize building foundations and damage
bridges, roads, and pipelines.
In the debate about the future of the
pipeline(s), First Nations may well be the only interests who will be
effective in forcing governments to address the environmental and
cultural implications of pipelines. Speaking personally, I have far
more respect for the right of First Nations to question the pipelines
than I do for many environmentalist groups, a few of which will be
easy for governments to dismiss in the court of public opinion due to
their unbending ideological opposition to fossil fuel based energy.
As one who has invested significantly in oil sands companies, I am
inclined to respect the right of First Nations to have a major say in
determining the future of the pipelines. And if the final decision
inconveniences me as an investor, I am more than willing to accept it
as there are more important considerations at play than my personal
financial interests.
“Only in Canada” you say? I say,
“Thank God for that.” It is to be celebrated.
As the Report of the Royal
Commission on Aboriginal Peoples 1996 states:
Canada
is a test case for a grand notion - the notion that dissimilar
peoples can share lands, resources, power and dreams while respecting
and sustaining their differences. The story of Canada is the story of
many such peoples, trying and failing and trying again, to live
together in peace and harmony.
But
there cannot be peace or harmony unless there is justice.
...Canadians
need to understand that Aboriginal peoples are nations. That is, they
are political and cultural groups with values and lifeways distinct
from those of other Canadians. They lived as nations - highly
centralized, loosely federated, or small and clan-based - for
thousands of years before the arrival of Europeans. As nations, they
forged trade and military alliances among themselves and with the new
arrivals. To this day, Aboriginal people's sense of confidence and
well-being as individuals remains tied to the strength of their
nations. Only as members of restored nations can they reach their
potential in the twenty-first century.
Let
us be clear, however. To say that Aboriginal peoples are nations is
not to say that they are nation-states seeking independence from
Canada. They are collectivities with a long shared history, a right
to govern themselves and, in general, a strong desire to do so in
partnership with Canada.
No comments:
Post a Comment