Indigenous Rights

The government of Canada had to be legally forced by First Nations to consult with Indigenous communities about development projects. But consultation is used as a tool of implied consent, telling a community a project is being proposed that may or may not have impacts to a First Nation and the recognition of its Treaty rights. As of yet, there is no legal framework within the Constitution of Canada that recognizes the principles of Free, Prior and Informed Consent (FPIC) for the right of First Nation communities to say “No” to a proposed development. Treaties form a legal relationship between Indigenous Nations and the Crown, now known as the settler state of Canada. Downstream from the existing tar sands plants are Cree, Dene, and Métis settlement communities who are most directly affected by the flow of toxic sludge. In particular, communities of the Mikisew Cree First Nation and the Athabascan Chipewyan First Nation have actively protested against the poisoning of their waterways and the severe health issues and environmental catastrophe’s facing our Peoples.

Since time immemorial, Indigenous communities have lived and sustained from the previously plentiful sources of nourishment that the Arctic Drainage Basin Watershed has provided. Due to the devastation that industry and government have allowed to not only continue but grow in spite of overwhelming scientific evidence that the impacts of industry have on Indigenous bodies. As the environment we live in becomes sicker so do we. We live in the era of manufactured consent that creates spaces for industry and governments to continue to expand while we are busy facing crisis after crisis in our communities. Approximately 60% of Canada's fresh water drains north, while 85% of the population lives closer to the southern border with the US. The impacts of the tar sands expansion, tailings ponds seepage and the very real possibility of dumping those “treated” toxic waters into the Athabasca will further harm Indigenous bodies and our traditional ways of existing in our territories. The combination of forestry, oil and gas, and tar sands development is continually shrinking the areas of effective habitat that can support viable populations. Woodland Caribou habitat loss is often the ultimate cause of this species endangerment and is also a leading factor inhibiting species recovery. Source

Indigenous-led environmental protection work has been ongoing in the settler state of Canada through the many different forms of Indigenous resistance across this land for generations. It has been more noticeable since the 1970 Red Paper response to the 1969 White Paper. Indigenous resistance has evolved over the years into direct action such as the Constitution Express, the Oka Crisis, the Gustafsen Lake standoff, the Ipperwash crisis, the Idle No More movement, the Water is Life movement, the Keep It In the Ground movement to the LandBack movement. Indigenous-led action for the right to exist as autonomous Nations with collective rights is only a small part of our collective history that has helped Indigenous-led organizations like Keepers of the Water (KOW) grow into the organization we have become today. As KOW grows, we are able to lift up more voices from the numerous communities that are intrinsically connected together by waters carried throughout the Arctic Drainage Basin.

 In the Mackenzie Valley of the Northwest Territories, several Nations have been resisting and pushing back against what is happening in the tar sands because of the contamination and depletion of the Deh ho (Mackenzie River), which flows down from the Athabasca. More than 95 per cent of the water drawn from the Athabasca River is too polluted to place back in the natural water cycle. The frequency of deformities, lesions and cancers found in fish caught in Lake Athabasca has increased dramatically. Local harvesters suspect the rapidly expanding tar sands operations further upstream as the cause of their health concerns. Learn how Keepers of the Water is working to help protect this beautiful river in the Personhood for the Deh-cho (Mackenzie) River Report released on January 8th, 2022. This report was written by Crystal Stamp-Cardinal, BSc. and Josie C. Auger, PhD.

At about 1,500 metres above sea level, at the bottom of the Columbia Icefield, is an unnamed lake of melted ice and snow. This nameless lake is where the headwaters of the Athabasca River begin. The Athabasca River is an undammed river that flows almost 1300 km northeast across Alberta, absorbing and distributing water through multiple watersheds that eventually drain into the Arctic Ocean. The amount of life that depends on this freshwater source is immeasurable. This river travels through numerous Indigenous communities and is a lifeline to thousands of people and countless other forms of life, until eventually draining into the Arctic Ocean.

A watershed is an entire river system. Like the Athabasca River, it is an area drained by a river and its tributaries, such as streams, ponds, lakes, connecting rivers, wetlands, or estuaries that eventually drain into one place. Large watersheds are often called drainage basins containing many smaller watersheds. Watersheds also transport nonpoint source pollution. Nonpoint source pollution is a combination of pollutants, e.g. oil from cars and manure from farms, from a large area rather than from specific identifiable sources such as leaking tailings lakes and ponds. Snowmelt and rain runoff are generally associated with nonpoint source pollution because runoff water empties into streams or rivers after accumulating pollutants from everyday places like gardens, parking lots or construction sites. Non-point pollutants accumulate in watersheds due to the combination of various human and natural activities and threaten access to clean water for everyone within the Arctic Drainage Basin.

The Impacts On Our Bodies and Health

The immediate and long-term health of Dene, Cree, Métis, Inuvialuit People are interconnected by their distinct traditional practices within the Arctic Drainage Basin. The Arctic Drainage Basin is a watershed that spans the vast territories of many Indigenous Peoples and clean water is absolutely vital to our inherent rights, Spiritual connection to the land, our ability to hunt, fish, trap, gather traditional medicines, provide land-based education, and practice our ancient ceremonies. These rights are threatened by seeping toxic tailings lakes and ponds. Added to this already toxic threat is the threat of industry and government working together, without adequate safety data, on releasing these toxic lakes into the mighty Athabasca River.

In 2006, Dr. John O’Connor made international headlines when he first spoke out about elevated cancer rates in Northern Alberta communities and believes they were linked to tar sands activity from toxins leaking from tailings lakes and ponds, into the surrounding land and water systems. This claim was later supported by a study partially funded by Health Canada. It is time to move on from oil dependency - a healthier, more sustainable society is underway. With some care and some thought, we can ensure the 18 communities who rely on fossil fuel employment get the support they deserve. In 2009, the Alberta Cancer Board released a study, which found that cancer rates were indeed higher than expected in Fort Chipewyan, by about 30 per cent while in the same year the College of Physicians and Surgeons of Alberta concluded an investigation about O'Connor after three physicians with Health Canada laid four complaints against him. While at that time he lost everything, he is still a fierce, vocal, and an award-winning community advocate.

Treaty and Aboriginal Rights Under Canadian Law

Indigenous nations existed on this land before Canada existed as a country. Like other nations, Indigenous nations had laws, governments and governance structures, economic systems, environmental management regimes, spiritual and cultural practices, and protocols for inter-Nation diplomacy and trade. Governing as a nation and managing the land required for subsistence and the survival of the nation are all part of the rights of Indigenous peoples.

But Canadian governments and Canadian law has never recognized all these Indigenous rights, or anything close to it. Instead Canada prefers to recognize only a small subset of Indigenous rights while keeping Indigenous nations under the framework of settler law and governance for most aspects of life. Canada always wants to retain control over land to ensure profit from the extraction of minerals, fossil fuels, and from other industries.

Canada was started as a British colony, and Canada’s first constitution was a British law passed in 1867. In 1982 Canada repatriated (took back) its constitution and added new sections to it. These new sections included section 35 of Canada’s Constitution Act, 1982 which states that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This statement is now the highest authority for Indigenous rights under Canadian law.

Aboriginal rights and treaty rights are considered to be slightly different things under Canadian law.

An aboriginal right is something that is not written in any historic or modern treaty and is only legally recognized through a court decision. When Indigenous peoples are being prevented from doing something that is their right by the laws of a Canadian government the Indigenous peoples can go to court to claim that they have an aboriginal right to do that thing. Canadian courts have developed a legal test to determine if something is an aboriginal right that should be recognized under Canada’s constitution, and thus protected from infringement by Canadian government laws. Governments will also attend the court proceedings to argue against recognition of the aboriginal right.

Canadian law’s test for aboriginal rights also includes a test for “justified infringement” of that right. This means that the aboriginal right exists, but Canadian governments are still allowed to restrict Inidgenous peoples from practicing that right for some good reason according to the courts.

A treaty right is a right written into either a historic or modern treaty. Historic treaties are old agreements between an Indigenous nation and Canada or the European nations that settled Indigenous lands before Canada existed (like England). These historic treaties go back hundreds of years and continued to be signed into the first half of the 20th century. Modern treaties started in the 1970s and include some land claim agreements and self-government agreements.

Like aboriginal rights Canadian governments may be allowed to infringe treaty rights, and there is a legal test for this.

A big part of Canadian law’s dealings with Indigenous peoples is the duty to consult and accommodate. This is a legal obligation on Canadian governments to talk to and work with Indigenous peoples when their aboriginal or treaty rights might be impacted by some action the government is taking. The government has to explain the action, get feedback from the Indigenous peoples on impacts to rights, and then try to avoid or minimize those impacts. The duty to consult does not require Canadian governments to get agreement from Indigenous peoples and allows something to proceed even if an Indigenous nation objects because of the impacts to their rights. 

UNDRIP and Free, Prior and Informed Consent

In 2007 the United Nations General Assembly approved the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This Declaration is a 28 page document that clearly states a bunch of rights that should be recognized for Indigenous peoples around the world.

UNDRIP was drafted over many years by Indigenous peoples from around the world, other experts, and representatives of states (representatives of the different governments of countries that participate in the UN). The state representatives were careful to make sure that UNDRIP did not recognize any rights that would allow Indigenous peoples to have full sovereignty over their lands, communities, and lives, and that would ensure Indigenous peoples and lands continued to remain within the fabric of the state’s law and governance.

However, UNDRIP does recognize a bunch of rights that had not been comprehensively recognized at that level before. These include rights to equality, self-determination and self-government, security of the person, culture and language, education and media, economic and social rights, health and wellness, lands and resources, and treaties and agreements.

The way UNDRIP is written it creates obligations on states (like Canada) to make sure the Indigenous rights included in it are not infringed by government action, and allows for some measure of control by Indigenous peoples over their internal affairs and governance.

But UNDRIP is not international law. It is a statement about Indigenous rights that the UN General Assembly has agreed to but that each country has no legal obligation to adhere to.

One of the most important things in UNDRIP is free, prior and informed consent (FPIC). FPIC is the right of Indigenous peoples to participate in decision-making about issues that impact them, including the use of their land, territories and natural resources. Decisions must be made freely without coercion, intimidation or manipulation by other peoples or governments, and Indigenous people must be fully informed with all necessary information early on so that decision-making influences plans. Indigenous peoples are free to say “yes” or “no” to planned projects that affect their lands and their lives. They can set conditions for consent based on their own collective decision-making.

When a proposed action could seriously impact the rights of Indigenous peoples, the consent of those Indigenous peoples is absolutely required before government can proceed with the action. This is fundamentally different from the duty to consult that currently exists in Canadian law, as that duty never requires agreement from Indigenous peoples and government is always allowed to do things even when Indigenous peoples continue to say “no”.

Canada’s federal government has agreed to implement UNDRIP in its laws and policies, and passed a law in 2021 that requires it to make all its laws consistent with UNDRIP. But so far no substantial changes have been made.

Canada’s federal government cannot force provincial governments to implement UNDRIP. Since most land and resource activities are under the control of the provinces it is up those necessary for those provincial governments to implement UNDRIP before it applies under Canadian law to most Indigenous lands. British Columbia is the only Canadian province to pass an UNDRIP law so far.

Treaty 8 and Treaty 11

Treaty 8 and Treaty 11 are the two historic treaties signed between Canada and the Indigenous peoples of the Deh Cho (Mackenzie River) watershed.

Treaty 8, signed in 1899, includes the south-eastern portion of the land claimed by the Northwest Territories, and the northern portions of land claimed by Saskatchewan, Alberta, and BC.

Treaty 11 includes most of the remainder of the land claimed by the Northwest Territories, with the exclusion of Inuvialuit land along the Arctic coast and on Arctic islands.

Treaties 8 and 11, which are nearly identical documents when it comes to the alleged agreement being made, are similar to other historic treaties in that the written versions are a poor agreement (for Indigenous peoples) that don’t reflect the actual negotiation, discussion, and any verbal agreement that occurred between the treaty parties.

Both treaties include cede, release, and surrender clauses saying that “the said Indians do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for [his majesty the King or her majesty the Queen] and His Successors forever, all their rights, titles, and privileges whatsoever to the lands included within the following limits …”.

Canada’s goal with these treaties was to secure its legal position as owner of all the land to ensure it could avoid complications when extracting minerals and fossil fuels.

Dene challenged the written versions of Treaties 8 and 11 in a 1973 court case known as the Paulette Caveat. Witnesses included Elders who had been alive and present during Treaty discussions and signing.

Elders told the court how the actual discussions did not reflect the written version of the Treaties, and how coercion and underhanded tactics were sometimes used by Canada to obtain signatures on the Treaty documents. One Chief, Julian Yendo from Pehdzeh Ki (Wrigley), testified that he did not remember signing the Treaty even though his signature is allegedly on the document.

The judge in the case concluded that the treaties did not extinguish aboriginal title and that the Dene in the case “are prima facie owners of the lands … that they have what is known as aboriginal rights.”