Reflection Paper - Water Legislation

First Nations have a different perspective and respect of water that is evident through their spiritual relationship to it. The day began with a prayer by Florence Painter. Women are life givers, this is what spirit and intent is all about. As long as sun shines, grass grows and river flow was the rhetoric used at the time but the treaties are silent about water. Reason why it is because it essential, First Nations knew water was a human right for all living things, no need to put it in treaty. First Nations will have no say in the governance of water in the new fiscal year through non derogation clause relevant to treaties in the contribution agreements bands receive. 

International organizations support Indigenous rights such as the duty to consult and accommodate, court cases have set precedent to dictate partnerships, yet First Nations find themselves fighting against the Harper Governments legislative moves that have disregarded the environment and those who live in the impacted environments. This has been evident through Idle No More protests which have sprung up across the country recently. An update at the Marlborough Hotel on water legislation with regards to Bill C-38 and 45 was the focus of the day, March 12^th, 2013. Many more pieces of legislation are waiting to move that impact our way of life, it is an important message.  

The day began with a presentation entitled “Overview: Treaty and Aboriginal Rights” by Aboriginal lawyer Aimee Craft. The afternoon session speakers were Karen Bubsy, a law professor at the University of Manitoba and Melissa Hotaim, policy analysis at Assembly of Manitoba Chiefs. Craft spoke about collective rights, duties flowing from Section 35 rights and water.  She said we are not entitled to half, but rather sharing. Questioned audience who makes decisions? There are no treaties in B.C., and in East there are Peace and Friendship Treaties. Treaty and Aboriginal rights are different, but have commonalities. Treaty is contained within text. The infringement has to be justified. Aboriginal rights are not within context, Aboriginal rights relate to governance. Craft was clarifying Section 35 and the fact the Harper Government can make legislation without caution, raises a red flag. For instance, the Keystone pipeline would require only 18 months of environmental impact assessment, experts are saying this is simply not possible.

There is an emerging Indigenous law to be built on yet recent Supreme Court cases create confusion. Treaty interpretation of mutually binding obligations rules that ambiguities shall be resolved in favor of First Nations - R. v. Badger. There are no frozen rights, how they can evolve has to be considered and applied; R.V. Simon rejected frozen rights. R. v. Sparrow is another legal test regarding regulation of fishing rights - if extinguished was there infringement? Today a case where Sparrow has relevance is regarding recent Interlake load slip charges. The infringement will make reference to Sparrow and be up against a valid legislative objective – conservation. This raises another question; do fishing rights include commercial fishing rights? The test is pre-contact.

Craft said R. v. Mikisew outlines duty to consult but there is a lot of grey when it comes to Manitoba Hydro because 3^rd parties are not responsible for consultations. However, Alberta companies have set an administrative consulting precedent. The current issue for Treaty 2 is the bipole project through Treaty 2 territory. Craft said to look at Mikisew case for a legal precedent. A band is not the same as a corporation can’t be sued but can set up their own corporate number. Why consult? Protect Aboriginal treaty rights and mitigate impacts. Duty to consult comes from Honor of the Crown. Mikisew said you cannot frustrate the process. Fiduciary duty is on the way out; Honour of the Crown is the term used today. This is the duty to act diligently. First Nations need to outline their rights from the outset.

The treaties are silent about water. Bills C-38 and 45 create water dumps - industrial use fracking on the Manitoba radar. Water insecurity is becoming an issue. In the Halalt case, their ground water title claim is weak because Crown has the right. This brings into question, assumed and asserted sovereignty. The bills are viewed as an extension of the sterilization policies; First Nations have their own holocaust experience, genocide continues. Canada spends billions in foreign aid to build infrastructure while neglecting their own backyard.

Karen Bubsy and Melissa Hotaim’s afternoon presentation was entitled “Impacts to First Nations: Legislative Review” put into perspective the agenda of the Harper government who are pushing bills through parliament. Bubsy explained the legislative process; once bills are passed it goes to Governor General for Royal Assent which becomes effective immediately or on a date. Legislation that has received Royal Assent recently includes Bill C-38 and Bill C-45.

The overall impacts are not meeting the duty to consult or accommodate as per Supreme Court of Canada; its contradiction of Section 35 of 1982 Constitution Act; no respect or process to implement United Nations Declaration on the rights of Indigenous peoples. It is chipping away of the Indian act in smaller bills. Bill C 38 and 45 have more wide sweeping effects.

The Jobs Growth and Long Term Prosperity Act, Bill C-38 is the omnibus Budget Bill legislation to rewrite 70 laws. It replaces and weakens the Canadian Environment Assessment Act by narrowly defining environmental impacts; gives cabinet discretion to remove a particular part, i.e., - fish, from the definition of environment and restricts who can participate, essentially allows federal government to avoid environmental reviews of specific projects and minimize comprehensive reviews. Other water related Acts affected with similar amendments include the Fisheries Act and Species at Risk Act.

The Jobs and Growth Act (C-45) is the second omnibus bill that changed 44 Federal laws, the reaction was through Idle No More protests across the country. Within the Indian Act the surrenders and designations portion is changed. This allows reserve lands to be leased easier by a threshold of a simple majority rather than a referendum of majority of all eligible band electors. The Navigable Waters Protection Act exempts pipelines and interprovincial power lines from proving they will damage waterways; takes away federal environment triggers for 99% of Canada’s waterways and only protects 3 oceans, 97 lakes, and portions of 62 rivers, excluding 32,000 lakes and 2.25 million rivers! The minister does not need to consider First Nations rights. However the Mikisew Cree and Frog Lake First Nations are challenging the bills in federal court.

Some other bills moving along are Bill S-8, Safe Drinking Water for First Nations Act which sounds good in title but no money attached. Water looks to be headed for privatization. Bill C 469 is the Declaration on the Rights of Indigenous Peoples Act –  would require Canada to take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Right of Indigenous Peoples. This document is aspirational at best. 

       In conclusion, the new fiscal year is approaching and All First Nation Reserves will be receiving 

packages that contain the usual contribution agreements. These new contribution agreements now have a 

non derogation clause relevant to Treaties. This means treaties could be extinguished because the 

government in now operating on regulations and policies without due process to treaty issues. Attached 

is an Appendix now that says they must sign all the legislation First Nations are fighting. Communities 

have to agree to all the resource exploitation efforts proposed and if they do not sign those contribution 

agreements they can be forced into third party management or face other restrictions. Leadership is 

recommending that First Nations need to be accomadated and possibly move into impact benefit 

agreements.

Reflection Paper - Dr. Shulash Shukla and Chad Cornell

Monday’s class was a presentation by Dr. Shulash Shukla whose professional background is in Natural Resource Management. Accompanying Dr. Shukla was local herbalist, Chad Cornell. Cornell is the owner of Hollow Reed, a store providing medicinal plants to the community of interest. Before the gentlemen began, Dr. Pelletier started by introducing the pipe she was gifted with from the late Tabasonakwut Kinew and began with an opening prayer. Dr. Pelletier acknowledged she is a novice pipe carrier, but more importantly shared teachings of the pipe she learned with the class.  Further than the four directions that Dr. Pelletier mentions, these are, to point to the creator, to acknowledge creation and one creator, and secondly the direction to mother earth, to represent that people survive through air and water,  and all sustained life from earth. And thirdly the people smoking the pipe as they smoke and touch the stem of the pipe, represents human beings that includes First Nations. Elders say one should understand the seven sacred directions of the pipe as a framework or circle of the teachings of the Anishinabe people to be aware of the teachings it represents.

 Chad began by talking about the holistic aspect of his work, the interrelationship and a brief personal history. In his late 20’s he left his government job to fulfil his inner desire to learn about the medicinal properties of plants. Chad played a film which he described as a medium to reach out to future generations. In Our Common Roots, Chad gave a more detailed reason version of his introduction, an expression that seemed to reflect his time out on the lake. He was on anti-biotics in his late 20s which upset his system. He took a job as a wilderness guide in Haida territory (B.C) where he experienced healing. Chad attended the Natural Healing College in Wildrose, Alberta. He studied ayurveta (written history of Indian and Chinese traditional medicines, 5000 years old). He learned way chemicals are used in everything and used the term ‘chemical empires’ to describe our relationship to earth today.

The film was shot at the bannock point petro-forms, a sacred place to First Nations peoples.  A discussion between Chad and another fellow in film detailed the reasons why botanical energy is green energy, the energy source for sustainability - decay (fungus) and plant life, feminine and masculine relationship, and what should be the energy direction Canada takes collectively.  Plants capture light and the more light we ingest, the more well we will be. Chad spoke on acknowledging the spirit of plant. There are medicines within the boreal forest. Kaniknik is commonly used for urinary tract infections; it can be smoked as a filler to supplement tobacco; Juniper protects the body’s aura; addressing a subtitle in film, Legends of Nature – Birch. Chad explained Paper birch is being studied a lot. The vetchilinic acid can be used to treat tumors, ect., - Opposite of decay – helps the body shed toxins.

Ron Bell was interviewed, began by singing a Sioux song. Said the sick people are placed in the middle of petro forms - Healers reside outside. Said it’s easy to stand up and preach, practice kindness to strangers and have them say, ‘oh he is a nice guy’, but the hard part is to go home and live it. He has a family and home, a roof to keep clean; that the key is to live the teachings.   Chad and Ron discussed how traffic has picked up to the petro forms, there are more people coming; these people are from other faiths who come. Chad commented that the people are rekindling, there was time away, a disconnection; Bell clarified that practice was outlawed. Things taken away, people come and express hurt. One elderly lady cried and told Ron that her grandmother told her that she would receive that very teaching that she just heard someday, at that site.

Chad expressed public opinion and thought that were are headed for difficult time ahead, especially for our children. A view fueled by media and cinema films like the Day After Tomorrow. He expressed his opinion that he doesn’t share the same thought and holds out hope for a future of brighter minds. Eclectic doctors resulted because First Nations traditions met with European doctors, a blend of both is what they practiced. A global mind is emerging. Prophecy- Warriors of the Rainbow, is about people of different tribes who share a common goal and defend it. Whose information is it? – Its global knowledge. He told story about ‘Neem’, how he received information, he felt like a recipient rather than one to take credit. He said First Nation healers held a cosmic ontology that the new comers and followers of church identified as a threat that had to be destroyed. He told us, similar thinking still exists; Codex[sic] may be looking to shut down Hollow Reed someday; Harvard Research is looking for the spirit molecule – dmt.

The class stimulated thinking, I began thinking about the White Earth Land Recovery Project Dr. Winona Laduke has founded and implemented into the school curriculum in her own community and if the presentation was headed in that direction. I have often daydreamt about a garden and greenhouse; I could grow tobacco, squash, and a variety of goods at my parent’s property near Riding Mountain National Park. There are traditional teachings about the petro-forms that should be done through the languages, what’s in the songs. What is in the prayers? -  Oil has a purpose in the land, and the exploitation of it is creating the imbalance of climate change, in other words, it’s more than greenhouse gases.

Reflection Paper of Speaker - Chris Henderson (TLE)

Chris Henderson gave a speech at the Treaty Commission of Manitoba learning center Wednesday, February 6, 2013, about an economic development zone. He used different wording than the more familiar term ‘urban reserve’. Henderson starting his presentation holding up a big green book titled, Framework Agreement: Treaty Land Entitlement Manitoba, to give a visual of the amount of paperwork and legal implications to be followed. The Treaty Land Entitlement Committee of Manitoba Inc. (TLE) was established to address the land allocation that was not completed after the treaties were agreed too. For example treaty 1 and 2 were suppose to get figures of similar measure to Treaty 5 – 160 acres for family of 5. One of the promises is the per capita provision- Treaty 5 – 160 acres, or 32 per person.  TLE is not new land allocation to First Nations; it simply honors what was promised at the time of treaty. 

Henderson is the Executive Director of the TLE, and in addition to a brief history behind the mandate, said Oka lit the fire to initiate the TLE. He let us know that there is a Treaty and Aboriginal Rights center on Lombard Street if anyone wants to go do some additional research. Henderson clarified the finer details of the legal jargon beginning with Reserves owed other lands who are given money and then purchase land. Within Manitoba, Rolling River acquired lands outside of Brandon; Brokenhead First Nation acquired land east of St. Paul; and Sapotaweyak acquired land near Swan River. To member First Nations to initiate a TLE, a Community Approval Process needs to be obtained. Then a municipal services agreement needs to be reached, as well as a memorandum of understanding.

Land acquisitions of private land takes on average 9 years to convert land to urban reserve, Sapotaweyak is a victim to rules changing, as well as Long Plain where Yellowquill College is located. He explained there is a legal delay process that comes without penalties or fines, in other words, government can drag its feet when it comes to converting land into reserve status. He acknowledged there should be timelines and penalties if corporations can buy, lease, and use lands faster than reserves. These are the challenges; however First Nations have bought land, and are moving forward. Despite time, challenges, progress is being made. First Nations are moving ahead and the TLE framework is the way to go.

According to Henderson, as a side note to questions why this lengthy practice is commonplace, he gave an interesting answer that reflects opinion within the bureaucratic circles. Referring to an incident years back, when then Chief Terrence Nelson put Indian Affairs Minister Jim Prentice into a situation in which if he did not convert a piece of land purchased into urban reserve, he would block train lines into the states disrupting the Canadian economy to the highest degree. Prentice reached out to him, asking Chief Nelson what he wanted. Government sped up the process converting the Red Sun Gas Station to reserve land in 3 months. After that incident, the government has been very reluctant because of Nelson the Government doesn’t like to be pushed and now has discretion of what will go up.

I asked the question, what is the legal status of the reserves he is speaking about, that have now entered the Land Management Act with their TLE land, if they go broke, does the land revert back to the province or the band to try another venture, ? – He said he wasn’t sure, would have to check with legal counsel, but he knows that within the big green book, the lands will be held in trust. According to the Treaty Land Entitlement Committee of Manitoba Inc. Annual report 2011/2012, to date, Canada has set aside a total of 462,727 acres of land as reserve; there remains a total of 509,759 acres of land. The total crown land and other lands amount to is 963,097acres.