Scott Moe and co.’s anti-Trudeau law tramples Treaty rights
Feature | Gregory Beatty
In a legislative session full of low points for the Saskatchewan Party government, the lowest came on March 16 when, with a gallery of First Nations and Métis people looking on, government MLAs voted unanimously to pass Bill 88, a.k.a. the Saskatchewan First Act.
The act is the latest salvo in the ongoing war between Scott Moe’s government and the federal Liberals over the latter’s plan to put the necessary regulations in place to honour Canada’s international commitment to address climate change and protect wildlife habitat and biodiversity.
That’s not a message the Moe government, with its fixation on resource development to “grow’ the economy, wants to hear. With Bill 88, the government set out to claim “exclusive jurisdiction” over the oil and gas, coal, agriculture, forestry and electricity generation sectors.
Now that Bill 88 is law, it seems inevitable Saskatchewan and Ottawa will again clash in court as they did in the 2019 carbon tax case, and as they are doing now over Bill C-69 — the so-called “No Pipelines Bill.” [see companion article]
But that’s not the only legal battle that’s looming for the government. Before Bill 88 passed, it had been strongly criticized by Federation of Sovereign Indigenous Nations (FSIN), Métis Nation-Saskatchewan (MSN) and others (including Saskatchewan Treaty Commissioner Mary Culbertson) for failing to respect the inherent and treaty rights of Indigenous people.
At the last minute, the government did add a clause stating that nothing in the bill “abrogates or derogates” from existing Aboriginal treaty rights as affirmed by s.35 of the Constitution Act, 1982.
Bill 88 arose out of a series of closed-door meetings with Sask. Party insiders and industry stakeholders. Given its sketchy roots, and the government’s refusal to allow First Nations and Métis leaders to be heard as witnesses in committee before the bill was rushed into law, the clause that was belatedly inserted provides zero comfort, says Treaty Commissioner Culbertson.
“With the Sask. First Act, you can’t insert one line and say that’s an assurance that it’s not going to infringe on treaty rights. First of all, who is the Saskatchewan government to think they can interpret and determine treaty rights, anyway?” she says.
To stake its bold claim, the Sask. Party government relies heavily on the division of powers laid out in s.91 and s.92 of the BNA Act (1867). Under s.92, natural resources are allocated to the provinces — a principle reinforced (for Saskatchewan and Alberta) in the Natural Resources Transfer Agreement of 1930.
But Canada’s constitutional structure is a lot more complex today than it was back then.
“When the federal government assigned those powers to the provinces, it was during a time when First Nations were not allowed to have lawyers,” says Culbertson. “Residential schools were at their height, and the pass and permit system was unlawfully in place.
“There was no discussion about how this was going to impact First Nations people. Their rights, at the time, had zero standing,” she says.
The standing that most First Nations do have in Canada is governed by a series of treaties that different nations signed with the Imperial Crown of Britain, starting with the Royal Proclamation of 1763. As Canada’s First Peoples, nations also have what are described as inherent rights.
In Saskatchewan’s case, notes Culbertson, the two main treaties that cover southern Saskatchewan — Treaty Four (1874) and Treaty Six (1876) — were signed a full three decades before Saskatchewan joined Confederation in 1905.
“Treaties that cover the land we live on today, they were here before Saskatchewan existed,” she says.
“First Nations assert, and rightly so, that their relationship with the Imperial Crown of Britain, and now Canada, supersedes the provincial relationship. When the federal government delegated authority over the lands and resources to the provinces, it did so wrongly and unlawfully,” says Culbertson.
Depth of a Plow
Onion Lake Cree Nation has already launched legal action. Other Indigenous groups, including FSIN and MNS, are likely to follow. When litigants argue their case that Bill 88 is unconstitutional, a familiar phase that is traditionally associated with the treaties, that First Nations agreed to share the land to “the depth of a plow”, will figure prominently, says Culbertson.
“No one was talking about mineral rights in 1874. Sharing the land to the depth of a plow was always in the negotiations. It was mentioned by the chiefs. They used signs with their hands for how far that would be, which was enough for people to plant their seeds. That’s what was said, that’s what was negotiated,” says Culbertson.
The argument will be that since minerals generally lie well below the depth of a plow, their rights, as defined by treaty, remain vested in First Nations. And FSIN has already laid claim to all rare earth minerals on treaty lands.
Another ‘arrow’ in the litigants’ ‘quiver’ is that in the secretive process the government used to draft the bill, it failed miserably in its duty to consult Indigenous people.
That duty, as interpreted by the courts, is laid out in the aforementioned s.35 of the Constitution Act. It was reaffirmed in 2021 when Parliament unanimously adopted the United Nations Declaration on the Rights of Indigenous Peoples.
In her capacity as Treaty Commissioner, Culbertson says she has a “good” relationship with Don McMorris, the Minister Responsible for First Nations, Métis and Northern Affairs. She points to the Highway Treaty signs as one positive initiative.
“Even though it might seem small, to me it’s a big win,” she says. “There’s something in the ground that the province helped put together that says this is treaty land. Everyone who drives by knows where they live. We’re acknowledging that the treaties are here and that they exist,” she says.
When asked about the lack of consultation leading up to Bill 88’s passage, Premier Scott Moe was quoted as saying that he’d spoken to many Indigenous people across the province.
Where did those conversations take place, Culbertson wonders. On the golf course?
“It’s completely frustrating because it limits First Nations access to the economy, and participation in the economy. And when we’re talking about those issues, we’re talking about poverty, and getting people working, and making sure barriers are not there,” says Culbertson.
“But then you have all these projects going on, and all these permits being issued,” she says. “Do you really think First Nations companies or Indigenous employees are a priority when it comes to hiring for any of these projects? Or even when it comes to environmental concerns?”
That’s another key part of the legal case — that reckless development undertaken without First Nations’ input and consent would jeopardize other treaty rights such as hunting, fishing, medicine gathering and the general health of the environment.
“When you have land that you can exercise your rights on, and it’s being diminished and taken away — like through the sale of Crown lands or expropriation for resource development — then you can’t access your right. And there is great concern about that,” says Culbertson.
Despite the high-minded principles federal and provincial politicians have embraced in recent decades to acknowledge First Nations people and their place in Canada, when it comes to substantive matters of governance, a colonial mindset too often reigns supreme.
Bill 88 is a prime example, says Culbertson.
“I believe there’s still this underlying concept of supremacy and discrimination. That’s what Canada was built on. It’s the very foundation of colonization,” says Culbertson.
“These are the First Peoples of this land. To have society, or governments, think they should be put third or fourth, or just completely put aside, is unfathomable. But when you think of the colonial context of the Doctrine of Discovery, Manifest Destiny, the papal bulls; the First Peoples were not even considered human. They were considered savages, and if you were non-Christian you could have anything taken from you,” Culbertson says. ■