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Natives making some progress in self-sufficiency

|Written By Patricia Chisolm - for Law Times

Whenit comes to things like agreements with private companies extracting resourcesfrom treaty lands, First Nation communities in Ontarioappear to be making some real progress; that's evidenced by the major dealbetween De Beers and a James Bay bandfinalized last week.

But in other areas, such as the jurisdictional squabbling that erupted in the recent crisis over clean water on the northern Ontario Kashechewan reserve, the problems seem as intractable as ever, say lawyers who have been working in the area for many years.

Driving some of what is happening now in Ontario (and across the country) are two November 2004 decisions from the Supreme Court of Canada: Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director). They set down the principle that governments have a duty to conduct meaningful consultations in good faith with First Nation communities that may be affected by government actions — typically when companies are granted permission for activities like mineral extraction or road building on lands claimed by First Nations groups as treaty or traditional land.

First Nations lawyer Martin Bayer, of Weaver Simmons LLP in Sudbury, Ont., has worked extensively in the area of self-government and resource sharing agreements that are occurring with greater frequency between First Nations communities and the many corporations now turning their attention to the potential of Northern Ontario. He was recently involved in the widely noticed impact-and-benefit agreement between diamond mining giant De Beers and the Attawapiskat First Nation, announced last week.

It sets out how the James Bay-area band will participate in the project in areas like employment, profit-sharing, joint stewardship, scholarships, and management of the environment. Bayer, who has been practising for about 10 years, acted for De Beers.

He said, "It's a good thing when international companies hire Aboriginal lawyers because if they are operating within a treaty area, then they should know something about Aboriginal law and the treaties that govern that particular area."

Often big companies go with Bay Street firms that may not know the context they are working in, he observed.

In some respects, negotiations with First Nations peoples are improving, he said, because First Nations peoples are getting better at participating on their own behalf in the process.

"There was a time when the First Nation negotiation team was comprised of a negotiator, a lawyer, and advisors who were all non-native."

But in lots of ways, things are not moving along well, he added, citing the federal government's continued reliance on the "outdated" principle of the inherent-right policy. Governments continue to lack flexibility and proper planning with their policies, he said, which focus on trying to "control or constrain First Nation communities."

Forty-year Aboriginal law veteran John Olthuis, of Toronto's Olthuis Kleer Townshend, says what is needed now is economic viability, not more band-aids.

The big issue in Ontario, from his perspective, is treaty implementation. Historic agreements that allowed First Nations to use their treaty lands have been eroded by leases and licences granted by Ontario to resource companies. The question now, especially in light of the dreadful conditions at the Kashechewan reserve that recently received much media attention, is whether life on reserves is viable.

He said that crisis arose because the federal government ignored the band's objection to the location of the community in the first place: it is built on a bog that is also part of a tidal floodplain. The government chose the site because it was easy to get supply barges into the coastal community. The result has been uncontrollable mold in the houses and tainted water.

If there is to be a future for the next generation, First Nations peoples must have some access to their traditional lands outside the reserves, Olthuis said. The argument is that if economic activities are to be licensed in these areas, then First Nations should be able to share in the benefits. This issue has special meaning for the 50,000 First Nations people who live in the Treaty Nine areas (north of Timmins and Thunder Bay), which are drawing increasing attention from major resource companies.

"What First Nations really want is to move toward economic and social self-sufficiency," he said. "They say that can only come through the treaty implementation process, rather than just new government programs that essentially address the symptoms."

But professor Brad Morse, who teaches aboriginal law at the University of Ottawa, says that while such developments would be welcome, he does not see much impetus for them from government or the private sector in Ontario. Their longstanding view, he said, is that "there really is no need to worry about any of these issues" because the treaties pre-date Confederation, which extinguished those agreements.

As a result of that perception, the Ministry of Natural Resources believes it can do whatever it wishes with Crown lands in Ontario, he said. This lack of concern about First Nations claims is exacerbated by the location of reserves in Ontario. Unlike in B.C., for example, they are situated far from major urban centres.

And this failure to engage continues to exist despite the two recent decisions from the Supreme Court requiring consultation with First Nations.

"Legally, I think there is a huge amount of uncertainty as to what is going on, but it's business as usual," said Morese.

But companies would be very wise to pay attention to First Nations issues in areas where they plan to operate, he cautioned. In the future the courts are likely to be much more active in this area and require companies to reach deals with local Aboriginal communities, he predicted. If they fail to do so, they could find their operations stalled indefinitely by lawsuits, which in this area are notorious for dragging on for many, many years.

Better to be pragmatic and enter into an agreement now, rather than be forced into one later, he concluded.

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