When it comes to things like agreements with private companies extracting resources from treaty lands, First Nation communities in Ontario appear to be making some real progress. But in other areas, the problems seem as intractable as ever, say lawyers who have been working in the area for many years.
When it comes to things like agreements with private companies extracting resources from treaty lands, First Nation communities in
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.
some of what is happening now in
Nations lawyer Martin Bayer, of Weaver Simmons LLP in
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."
big companies go with
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in lots of ways, things are not moving along well, he added, citing the federal government's continued reliance on the "outdated" principle of the inherent-right policy.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.
big issue in
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."
professor Brad Morse, who teaches aboriginal law at the
a result of that perception, the Ministry of Natural Resources believes it can
do whatever it wishes with Crown lands in
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.