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
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.
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
big companies go with Bay Street
firms that may not know the context they are working in, he observed.
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.
was a time when the First Nation negotiation team was comprised of a
negotiator, a lawyer, and advisors who were all non-native."
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government's continued reliance on the "outdated" principle of the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."
Aboriginal law veteran John Olthuis, of Toronto's Olthuis Kleer Townshend, says
what is needed now is economic viability, not more band-aids.
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.
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.
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.
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."
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.
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.
this failure to engage continues to exist despite the two recent decisions from
the Supreme Court requiring consultation with First Nations.
I think there is a huge amount of uncertainty as to what is going on, but it's
business as usual," said Morese.
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.
to be pragmatic and enter into an agreement now, rather than be forced into one
later, he concluded.