The First Nations in Saskatchewan, through their inherent and Treaty rights, will establish jurisdiction over the natural resources in their reserves and traditional territories and will ensure effective stewardship and sustainable development of these resources for the benefit of all of their citizens, now and in the future.
The Lands and Resources Commission is an effective and accountable entity of the FSIN and will promote First Nations’ ownership, management and control of natural resources through the implementation of both a rights based agenda and a developmental agenda. The Treaty rights based agenda will include: establishing access and jurisdiction for hunting, fishing, trapping and gathering in all Treaty territories; working with the settler governments in interpreting and implementing our Treaty rights to revenue share from resource development on our reserved and traditional lands; and settling outstanding land claims based on breaches of Treaty or illegal acts committed pursuant to the Indian Act. The inherent rights based agenda on self-government will include the development of First Nations laws and regulatory systems that will ensure effective stewardship of land and resources.
The development agenda may include: intergovernmental agreements that will promote partnerships and co-management; set out proper protocols for all areas of natural resources management; promote cooperation; support harvesting that is designed to protect and preserve resources; and ensure sustainable development of resources. This agenda also includes the development of lands and resource use plans and policies and the development of the human resources capacity to implement them.
- Treaty Right to Hunt, Fish, Trap, and Gather
- Free Prior and Informed Consent
- Duty to Consult.
- Natural Resources.
- Federal and Provincial Crown Lands.
- Environmental Protection.
- Sacred Sites and Archaeology.
- Climate Change / Emergency Preparedness / Disaster Mitigation
- Treaty Land Entitlement
- Key Supreme Court Decisions
Treaty Right to Hunt, Fish, Trap, and Gather
The Treaties contained clauses, which confirmed a right of hunting and fishing throughout the territory, which the various bands gave up. The following is the hunting clause from Treaty 6:
“ Her Majesty further agrees with her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as herein before described, subject to such regulations as may from time to time be made by her Government of her Dominion of Canada and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by her said Government of the Dominion of Canada or by any of the subjects thereof, duly authorized therefore, by the said Government.”
The promises that were made in the Treaties were reinforced in 1982 when the Constitution Act, 1982 included Section 35 which covers The Rights of the Aboriginal Peoples of Canada.
The Treaty right to Hunt, Fish, Trap and Gather is to last for time immemorial.
First Nations believe that the Treaties were agreements to ensure the livelihood of the parties. That the newcomers would depend on agriculture and domestic animals and that First Nations would be given a choice to continue to practice their traditional lifestyles while at the same time accepting the education and agricultural expertise of the newcomers that would allow them to share in the development of a new way of life. This assurance to First Nations of a continuation of livelihood means that the HFTG activities could be for subsistent or commercial use. The assurance of HFTG also means to First Nations that they could continue to harvest game and natural resources with no outside interference; limited to only the First Nations laws regarding resource use.
The assurance of livelihood also meant for First Nations that they would be able to practice these rights on all lands to which they had previously accessed except the occupied lands. First Nations believe that there should be no boundaries on their lands from which they derive a livelihood, with reference to the provincial and territorial boundaries. The First Nations recognize that they had their own territorial lines which were respected by other First Nations. They are seeking that these traditional lands be identified and be under First Nations’ jurisdiction to ensure proper management.
First Nations also recall the specific capital and financial resources granted by the Crown to assist them in harvesting their natural resources. These specific Treaty promises included ammunition, twine, netting and copper wire. They are both real items to assist in the HFTG lifestyle but are also symbols of Crown’s assurance to the First Nations’ right to harvest the natural resources. The issuance of ammunition is also suggests that the Crown acknowledges that First Nations have a right to firearms, as one of their traditional means to hunt.
First Nations also recalled that the protection and conservation of the natural resources for the use of First Nations is another specific Treaty obligation made by the Crown. First Nations believe that the Crown agreed to provide protection and means to conserve the game, fish and other natural resources for the future generations of First Nations people. The current legal structures; laws and regulations have all undermined First Nations’ perceptive of Treaty. First Nations cite the most resented laws include the 1930 Natural resource Transfer Agreement; the federal gun control laws and the provincial laws on wildlife, forestry, fisheries and trapping.
First Nations are seeking jurisdiction and authority to protect HFTG for future generations. First Nations want recognition and the jurisdiction to practice traditional management of their lands. They are also seeking validation that the Treaty right to HFTG includes commercial as well as subsistence practices. First Nations also want to codify their people’ traditional lands to be able to protect and conserve the resources of their lands.
First Nations want priority rights to the commercial harvesting of natural resources be affirmed as part of the implementation of the Treaty right to HFTG.
First Nations want acknowledgement that Treaty harvesting rights applied throughout their traditional homelands without regard to territorial and provincial boundaries.
First Nations are seeking the restoration of the specific benefits of ammunition, twine, netting and copper wire and are also seeking the removal of Gun control laws for Treaty First Nations.
Treaty First Nations suggested that the following problems need to be addressed: the dwindling area over which such traditional livelihood activities may take place; dwindling supplies of medicinal plants, fish, and wildlife; pollution and environmental damage; lack of exposure of many Treaty First Nations to traditional activities (inadequate training of parents and youth); and competition from non-Aboriginal people (such as commercial fishing operations at the location of traditional fishing camps).
First Nations are seeking the establishment of measures to ensure that First Nations are consulted, and receive compensation, a share of the revenues, or other benefits from resource development that interferes with resource harvesting within their traditional territories.
First Nations are asking for a review and reform of all federal and provincial legislation and regulations that impact on their Treaty right to HFTG. The reform should include the 1930 Natural Resource Transfer Agreement; the federal gun control laws and the provincial laws on wildlife, forestry, fisheries and trapping and then expand into other related laws. The intent of the review is to harmonize First Nations’ perceptive of Treaty with the federal and provincial laws and to reform all current laws and regulations concerning fish, wildlife and fauna to recognize the absolute priority of Treaty First Nations’ rights to HFTG on lands which are not recognized.
Free Prior and Informed Consent
Free Prior and Informed Consent
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument which was adopted in 2007 by the United Nations to enshrine (according to Article 43) the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” This instrument safeguards collective rights of the Indigenous peoples of those countries who adopt UNDRIP. UNDRIP was adopted by 144 countries, there were 11 abstentions, and 4 countries voted against it, including: Canada, United States, Australia, and New Zealand. In 2009, Australia and New Zealand indicated their support of UNDRIP.
In the March 3, 2010 Speech from the Throne, the Government of Canada announced that it would take steps to endorse the UNDRIP. On November 12, 2010, Canada endorsed UNDRIP, but also refers to it as “an aspirational document”, noting that it is not legally binding. Canada’s Statement of Support, or endorsement, also “reiterated continued concerns expressed by Canada since 2007 regarding specific text in the UNDRIP, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties” . Further, according to INAC’s website, “[d]eclarations can be adopted by consensus or by vote. When declarations are voted upon, a State may vote in favour of the adoption of the declaration, against its adoption or may abstain or be absent from the vote. There is no official way for a State that did not support the adoption of a declaration to subsequently indicate support, though they may do so, for example, by way of an official statement as was done by Canada on November 12, 2010.”
However, a World Conference on Indigenous Peoples was held in September 2014, wherein an action-oriented “Outcomes Document” was adopted, the intent of which was to move forward on implementing the rights of Indigenous peoples, including the principles and objectives of UNDRIP. Canada was the only UN member that refused to adopt the “Outcomes Document”, which affirmed commitment to UNDRIP.
Since the newly elected Liberal majority in October 2015, the Minister of INAC, Carolyn Bennet, has committed to implementing UNDRIP and rebuild its relationship with First Nations people by including them in every discussion, which affects them and their lands. There are 46 Articles in UNDRIP, and a quick review of such Articles found that 25 of them apply to Lands and Resources. Some of the Articles are general in nature and apply across all sectors, while others are more significant and apply specifically to Lands and Resources as it relates to free, prior, and informed consent. These Articles are as follows:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the Indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
- States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
- Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
- Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
- States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
- Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
- Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
- States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”.
Work in this area is ongoing, and correspondence and lobbying efforts shall continue to reference UNDRIP and its relevant Articles.
Duty to Consult
First Nations in Saskatchewan have Inherent and Treaty rights to lands and resources within the province of Saskatchewan. Section 35 of the Constitution Act, 1982, recognizes and affirms existing Aboriginal and Treaty rights of the Aboriginal Peoples of Canada, which includes First Nations people. Recent decisions of the Supreme Court of Canada (SCC) have established that the Crown is always under a common law and constitutional duty to consult with First Nations and may have to accommodate the rights and concerns of First Nations, prior to making any decisions when contemplated conduct may adversely impact the section 35 rights of First Nations.
The Government of Saskatchewan unilaterally drafted and released the “Draft Government of Saskatchewan First Nation and Metis Consultation Policy Framework” on December 22, 2008. However, First Nations were not appropriately consulted on the Consultation Policy, which failed to address process-related and substantive concerns regarding taking into account the long-term sustainability of section 35 rights. As a result, First Nations of Saskatchewan rejected the Consultation Policy by Resolution #1627, “First Nations Strategy on Consultation, Accommodation and Resource Revenue Sharing”, at a Special Legislative Assembly convened on February 18, 2009. The Consultation Policy was rejected for seriously and negatively affecting the Inherent and Treaty rights of First Nations in Saskatchewan, and failed to meet the legal requirements set out by the Canadian courts for meaningful consultation and accommodation with First Nations.
By Resolution #1627, First Nations in Saskatchewan identified the need to unify and work collectively to implement the duty to consult and accommodate and resource revenue sharing because these issues affect the collective Inherent and Treaty rights of First Nations. In order to ensure that consultation procedures respect established legal rights, the First Nations Chiefs-in-Assembly directed the then Federation of Saskatchewan Indian Nations (FSIN – now referred to as the Federation of Sovereign Indigenous Nations) to support and/or work with the Tribal, Agency, Grand Councils, Independent First Nations and Treaty organizations to develop a unified declaration and agenda on consultation and accommodation, and resource revenue sharing by March 31, 2010.
The consultation process being developed by and for First Nations in Saskatchewan, pursuant to this direction, will create a unified procedure which will further the complementary goals of developing long-term sustainability, achieving peace and reconciliation, and creating certainty and predictability over lands and resources in Saskatchewan. First Nations have directed that the First Nations Strategy on Consultation, Accommodation, and Resource Revenue Sharingbe based on the First Nations Inherent and Treaty rights, direction by First Nation communities, and the following Treaty Implementation Principles:
- We, the First Nations, come from Mother Earth, and this determines our relationship with nature, our role as stewards of this land, and all forms of life and our sovereignty;
- We, the First Nations, occupied North America as sovereign Nations long before other people came to our shores;
- We, the First Nations, have always made our own laws, institutions and jurisdiction, which reflects our cultures, values and languages;
- Our sovereignty enables us to enter into Treaty and other political accords with other Nations;
- The Royal Proclamation of 1763 recognized our sovereignty, institutionalized the Treaty-making process, and made our consent a condition before our lands and resources could be alienated;
- First Nations and the Crown affirmed each other’s sovereignty in the Treaty process;
- Our sovereignty will continue forever and will continue to define our nationhood forever;
- Our Treaty has international stature;
- The spirit and intent of the Treaty relationship is more valid than the written text and will last “as long as the sun shines, the rivers flow and grass grows;
- Canada has an on-going obligation to fulfill the Treaty according to the Spirit and Intent.
In addition, it will also ensure that the following legal principles which have been established by the courts are respected and upheld:
- Consultation is an ongoing process and is always required; (Haida)
- Consultation is a “two-way” street with obligations on each side (Ryan, Halfway River);
- Consultation and accommodation are constitutional obligations; (Kapp)
- First Nations’ input must be seriously considered, substantially addressed and, as the context requires, may require accommodation (Mikisew, Halfway River);
- Stakeholder processes will not be sufficient to discharge the Crown’s duty to consult (Mikisew) nor will public processes open to First Nations, such as participation in Public Hearings, be sufficient to discharge the Crown’s duty to consult (Dene Tha’);
- The Crown has a positive obligation to provide full information on an ongoing basis, so that First Nations can understand potential impacts of decisions on their rights (Jack, Sampson, Halfway) and such information must be responsive to what the Crown understands to be the concerns of the First Nations (Mikisew);
- The Crown must properly discharge both its procedural and substantive duties in any consultation process (Mikisew) and a failure to properly satisfy process-related concerns of First Nations, irrespective of the ultimate impact on substantive rights, may be a basis upon which a decision can be struck down (Mikisew);
- The Crown must have sufficient, credible information in decision making and must take into account the long-term sustainability of section 35 rights (Roger William);
- The purpose of consultation is reconciliation and not simply the minimization of adverse impacts (Dene Tha’);
- Consultation must take place early, before important decisions are made – at the “strategic planning” stage (Haida, Dene Tha’, Squamish Nation);
- Consultation cannot be postponed to the last and final point in a series of decisions (Squamish Nation);
- Consultation is required in respect of the design of the consultation process itself (Huu-ay-aht);
- First Nations must be consulted about the design of environmental and regulatory review processes (Dene Tha’);
- Consultation cannot just be in respect of “site specific impacts” of development – but must also focus on the cumulative impacts, derivative impacts, and possible injurious affection resulting from development (Dene Tha’, Taku River, Mikisew, Roger William);
- The Crown must approach consultation with an open mind and must be prepared to alter decisions depending on the input received (Haida); and
- Consultation cannot be determined simply by whether or not a particular process was followed, but on whether the results are “reasonable” in light of the information presented, degree of impacts, and related matters (Wil’itsxw).
Therefore, any and all consultation with First Nations in Saskatchewan must be coordinated with and adhere to the unified strategy being developed pursuant to Resolution#1627, “First Nations Strategy on Consultation, Accommodation and Resource Revenue Sharing”.
Model Law Template on Consultation
In March 2010, the FSIN Chiefs in Assembly adopted Resolution #1684, entitled “Declaration and First Nations Model Procedure on Consultation and Accommodation”. This Chiefs in Assembly Resolution adopted the Model Law Template on Consultation, with accompanying documents, and such documents were provided to the First Nations who wished to adopt the template for their First Nation – and to change the templates to suit their individual needs.
FSIN Consultation Policy
In May 2006, pursuant to recent decisions from the Supreme Court of Canada (SCC) on the duty to consult and accommodate, the Chiefs in Assembly adopted Resolution #1455, entitled First Nation Consultation Policy. The purpose of the FSIN Consultation Policy was to address the manner in which the FSIN will consult with First Nations; address the manner in which the FSIN will be consulted when working with First Nations, Crown agencies, private agencies, businesses and organizations, people and communities; produce better communication, and stronger relationships; ensure that the honour of the Crown is upheld by ensuring government discharges its obligation to consult and, if appropriate, accommodate First Nations’ interests; and, produce easier accommodation and resolution of issues between the FSIN, the First Nations, Crown agencies, private agencies, businesses and organizations, people and communities.
Natural Resources Transfer Agreement, 1930
First Nations have asserted their relationship to the land since before contact with the Europeans. At the time of Treaty, the land question was of great magnitude. In 1874 during the negotiation of Treaty 4, the signatory Chiefs questioned the sale of First Nations’ land to the Hudson’s Bay Company and demanded transparency and accountability from the Crown. Elders tell us that at the time of treaty signing, the federal government’s spokesperson, Lieutenant Governor Alexander Morris, stated that the First Nations would continue making a living from the land the way they always had. As we know, this has not happened. At the time of the adhesion to Treaty 6 it was understood by the First Nations that it was only the ‘dry land’ that was to be shared. The natural resources were to remain with First Nations for their benefit and use.
First Nations did not relinquish, cede or surrender rights to the natural resources at the time of Treaty negotiations. In fact, at the time of Treaty, First Nations agreed to open up the land for settlement, sharing six inches into the ground or a plough share depth for agricultural purposes. This is supported by both oral history and written sources. The Elders tell us that there was no word in the First Nations’ languages to describe selling the land, and the concept of selling the land and its resources would have caused extensive discussion.
Elders have advised that the concept of First Nations land ownership must be placed in its appropriate context. First Nations understanding that the land is borrowed or lent to others is in opposition to the government’s view that the Treaties were land transactions resulting in the sale of land. The concept of ‘stewardship’ is also to be discussed and must be carefully communicated – government could potentially use stewardship as evidence that First Nations themselves agree they have no direct entitlement to the resources in reserve land and within Treaty territory.
The Natural Resources Transfer Agreement, 1930(NRTA) granted the “administration and control” of the land and resources to the provincial government in Saskatchewan. First Nations view the NRTA as illegitimate because at no time did First Nations hand over to the federal Crown the authority over the .
Resource Revenue Sharing
The treaties and the sharing of the land is what allowed Canada to become the wealthy country it is today. Provincial governments have likewise acquired tremendous wealth from our traditional lands and territories, and such continues to this day. Yet First Nations are excluded from benefiting from the resource wealth.
First Nations governments need a stable, predictable revenue-sharing program that provides the financial resources necessary to meet their responsibilities. Revenue-sharing would provide that financial stability, as well as enhance the financial autonomy of First Nation governments.
The Royal Commission on Aboriginal Peoples reported in 1996 that provincial governments have benefited greatly from First Nations’ lands and resources and that they have a moral and a legal responsibility to participate fully in measures to restore self-reliance and autonomy, including arrangements to share resources.
First Nations in other parts of the country have successfully negotiated, or are in the process of negotiating revenue-sharing arrangements with provincial and territorial governments. The provinces of Quebec, Ontario and British Columbia have implemented First Nations’ revenue-sharing programs. The federal government and the provinces are negotiating revenue-sharing arrangements with First Nations in comprehensive claims settlements and modern treaties. This concept is not new.
A revenue sharing program with First Nations in Saskatchewan would meet several common goals for First Nations and the Government of Saskatchewan:
- Revenue sharing would help to honour the spirit and intent of the Treaties by compensating for past infringements and loss of access to traditional and ancestral lands within our Treaty territories;
- It would provide a more equitable sharing of the wealth in this province;
- Revenue sharing would help significantly in closing the socio-economic gap through improved social programs and new economic and employment opportunities; and
- It would encourage provincial economic growth by providing a stable and predictable investment environment for industry and others.
Saskatchewan First Nations already have a revenue-sharing agreement with the Saskatchewan government in the Gaming Framework Agreement. Through the Gaming Framework Agreement, the Saskatchewan government receives millions annually from the casinos operated by the Saskatchewan Indian Gaming Authority. In the 2012/2013 fiscal year SIGA generated 86.4 million in revenue, out that amount the Saskatchewan government received 25%, which calculates to 21.6 million dollars.
The First Nations have used this extra source of revenue wisely to improve the overall well-being of First Nations people. The benefits the First Nations receive from the gaming agreement have predominately contributed towards improving the circumstances of First Nations youth, elders, and the communities.
The Saskatchewan people should look at how this example of revenue-sharing has worked well for both Saskatchewan and the First Nations people. When they do, hopefully the lessons learned will contribute to a more open and frank discussion between the governments on how resource revenue sharing will ultimately lead to a greater benefit for all the people of Saskatchewan.
There is a growing interest among First Nation leadership to form a stronger and mutually beneficial working relationship with the natural resource development proponents in Saskatchewan. Improved relations with industry will create and environment for positive dialogue which in turn will foster an environment of greater business certainty for the natural resource sector in Saskatchewan.
Improved relations with industry will provide an opportunity for all parties to begin to understand each other’s obligations with respect to the duty to consult and accommodate. Although the duty to consult and accommodate is a constitutional legal obligation owed to the First Nations by the federal and provincial governments, certain procedural aspects of the duty to consult and accommodate are often delegated to the natural resource developing proponent. It is this aspect of the duty whereby the parties must reach a mutually agreed upon understanding in order to create an environment of greater business certainty.
Improved relations with industry will serve to open the doors to the greatest resource First Nations have to offer – a large, young and growing potential employee pool. As you are aware, the First Nation population is the fastest growing sector of Saskatchewan society. With investment by both parties, the natural resource sector can rely and depend on this employment pool, which has thus far been untapped by government and other business sectors.
Energy East – TransCanada
TransCanada is proposing to construct and operate the “Energy East” pipeline: a 4,500 km oil pipeline system from Hardsity, AB to Saint John, NB; to transport crude oil from Hardsity, AB and Moosomin, SK. to delivery points in Quebec (QC) and NB. The delivery points include three existing refineries in Eastern Canada and two new marine terminals: one at Cacouna, QC, and another at Saint John, NB, which will allow for the export of crude oil to international markets. The construction of the proposed pipeline would run through southern Saskatchewan, and potentially through reserve lands: Carry the Kettle and Sakimay First Nations.
TransCanada filed a Project Description with the National Energy Board (NEB) on March 2014. On October 30, 2014, TransCanada filed its formal application for the Energy East pipeline with the NEB. Filing the Project Description is the first step of the NEB regulatory process towards obtaining a Certificate, which if granted, would allow the Project to proceed. After receiving the full application from TransCanada, the NEB will schedule a public hearing, which will allow persons who are directly affected by the Project, or have relevant information or expertise relating to the Project, to express their views, which could be in favor or opposed. The NEB may also hear views on how the Project may impact Aboriginal communities, the use of traditional territory, and any potential or established Treaty or Aboriginal rights. After the hearing, the NEB will submit and make public a report to the Minister of Natural Resources with its recommendation whether to issue a certificate for the Project, after it has weighed both the positive and negative impacts.
Discussions are ongoing with TransCanada to keep the First Nations apprised of developments in relation to the Energy East project.
Line 3 Replacement Program – Enbridge
On 5 November 2014, Enbridge Pipelines Inc. (Enbridge) submitted an application to the NEB for the proposed Line 3 Replacement Program. The proposed project would include: the replacement of the existing Line 3 863.6 mm crude oil pipeline with a replacement 914.4 mm crude oil pipeline; the addition of remotely operated sectionalizing valves; the replacement of some or all Line 3 pumps and associated infrastructure and equipment; the addition of tankage at the Hardisty Terminal; and the decommissioning of the existing Line 3 pipeline.
On April 25, 2016, the NEB approved Enbridge’s L3RP with 89 project specific conditions, which are designed to enhance safety, environmental protection, and to ensure consultation with stakeholders. One such condition provides that Enbridge is to develop a plan for Aboriginal groups to participate in monitoring the construction of the new pipeline. In addition, the Panel recommended that NEB, the pipeline industry, and Aboriginal groups work together to create a set of principles, objectives or a framework approach that can be used to assist the development of Aboriginal monitoring programs for large pipeline projects.
The NEB granted intervener status to 39 individuals and stakeholders. There were thirteen (13) Aboriginal groups from Saskatchewan who participated either as commenter or as intervener: File Hills Qu’Appelle Tribal Council; George Gordon; Kahkewistahaw; Keeseekoose; Moosomin; Mosquito; Ocean Man; Ochapowace; Pasqua; Poundmaker; Sweetgrass; Thunderchild; and White Bear.
FSIN signed a Letter of Understanding with Enbridge on April 1, 2015, to undertake work for the 2015-2016 fiscal year, including liaison between industry and First Nations, which will also include research, information sharing, and education to the First Nation communities with regard to the Line 3 Replacement Program. Discussions continue with respect to further involvement with Enbridge for the 2016-2017 fiscal year, particularly to keep the First Nations apprised of the development of this project.
Federal and Provincial Crown Lands
Prairie Farms Rehabilitation Act Lands
The Prairie Farm Rehabilitation Act(PFRA) that created the Community Pasture Program was enacted on April 17, 1935. This act was created after 8 years of falling grain prices, unrelenting drought, severe wind erosion, and the resulting wide scale abandonment of farms in the Palliser Triangle, the driest southern areas of the prairies. Some 250,000 acres (101,214 ha) were blowing out of control and up to six million acres (2.43 million ha) were severely affected by drought and soil drifting. Tens of thousands of farmers and their families were destitute and requiring aid to survive.The mandate of the PFRA was to rehabilitate land affected by soil drifting and to develop and promote ‘systems of farm practice, tree culture, water supply and land utilization’ that would rehabilitate eroded fields and, ultimately, the economic security of farmers in the region.
In 1937, the PFRA Actwas amended to add land utilization and land settlement. The most erosion-prone lands could only be stabilized and protected with permanent cover. Sixteen community pastures, ranging from 6,000 to 25,000 acres (2,430 -10,122 ha) in size, were fenced and seeded that same year and opened for grazing the following spring.
PFRA currently operates 87 community pastures across the Prairies, with 62 pastures in Saskatchewan covering 1.78 million acres. Out of the 1.78 million PFRA acres located in Saskatchewan, 1.6 million acres will revert back to the province. These pastures support one of the largest ranching operations in North America; help to preserve the biodiversity of the prairie region; protect marginal land from erosion; and, provide wildlife habitat. The Community Pasture Program has returned more than 145,000 hectares of poor-quality cultivated lands to grass cover, significantly improving the ecological value of these lands and helping to increase the productivity of the area.
On April 18, 2012 Agriculture Minister Gerry Ritz stated that Agriculture and Agri-Food Canada (AAFC) will be changing its priorities on how it supports the agriculture industry. PFRA pastures will be transitioned out of federal management gradually over six years to the be managed by the province.
Community pasture patron groups have expressed interest in partnering with First Nations whereby the First Nations would purchase the land and have it transferred to reserve under TLE or other Specific Claim settlement agreements. Pasture patrons could then enter long term agreements to graze their cattle on the lands, while First Nations would derive the revenue from the fees.
The Provincial government has indicated it is willing to allow First Nations to select these former PFRA pastures and have them transferred to reserve under claim settlement agreements. The first step would be for the First Nation to make a selection of the lands. The Province would then do its usual internal canvas. As well the Province would consider whether the selection raises any concerns related to the duty to consult and accommodate. As per Section 4.08 (b) (i) of the Saskatchewan TLE Framework Agreement, 75 % of the pasture patrons would then have to consent to the land being transferred to reserve. This could be done at a meeting of pasture patrons or through a written sign off. Once that hurdle is cleared then the selection would proceed through the Additions to Reserve process. It would be up to the First Nation and the Pasture Patrons to negotiate terms for grazing leases.
Provincial Crown Land Sales Program
Enhanced Provincial Crown Land Sale Program – Ministry of Agriculture
In November 2008, 1.6 million acres of the 7.2 million acres of agricultural Crown land in the Province of Saskatchewan was put up for sale by the Ministry of Agriculture. This included 600,000 acres of cultivated land and one million acres of pasture land. These lands were made available for purchase to the farmers and ranchers who were leasing those lands. The provincial government offered these lessees a “sliding scale” incentive to make the purchase: a 10 per cent discount on the sale price of the land in the first year; an 8 per cent discount in the second; a 6 per cent discount in the third; a 4 per cent discount in the fourth; and a 2 per cent discount in the final year of the program.
Sale of Wildlife Habitat Protection ActProvincial Crown Lands – Ministry of Environment
In June 2009, the Ministry of Environment made the decision to expand the Crown land sale program to also make available Crown lands protected under the Wildlife Habitat Protection Act(WHPA). The Ministry of Environment manages 3.525 million acres of Crown land under the provisions of the WHPA. The Province undertook the re-evaluation at the request of the lessees who wanted to expand the Crown land sale program to include the lands protected under the WHPA. In response to this demand, the Ministry of Environment announced that it intended to re-evaluate the ecological attributes of all its Crown land holdings in southern Saskatchewan managed under the WHPA. This re-evaluation was intended to determine whether any of the lands protected by the WHPAcould be removed from the WHPAdesignation and be made available for sale to the lessees.
On May 12, 2014, the Ministries of Agriculture and Environment announced that the amendments to the WHPAand Conservation Easements Acthad been “Proclaimed” allowing for the sale of WHPAland. Further, under a new land management strategy called “The Southern Conservation Land Management Strategy”, lessees would be offered the opportunity to purchase eligible parcels of Crown land previously designated under WHPA.
Incentive Program to Sell Agricultural Crown Land
On November 4, 2015, Agriculture Minister Stewart announced a new incentive program to encourage the sale of eligible occupied agricultural Crown land. All agricultural Crown land including cultivated, grazing and hay land that is deemed to have no public and low environmental benefit will be eligible for the program. The Ministry of Agriculture estimates that approximately 600,000 acres of land will be sold under this program. From now until March 31, 2016, a 15 per cent discount will be applied to all sales. The incentive drops to 10 per cent on April 1, 2016 and five per cent on January 1, 2017.
The November 4th media release for the Incentive Program to Sell Agricultural Crown Land stated: “Sales associated with public tenders and Treaty Land Entitlement are not eligible for the program”.
Through this new incentive program is in addition to the other Agricultural Crown Land Sale Programs that were in place from November 2008 the province has sold more than 500,000 acres of provincial Crown land.
First Nations assert that the protection and conservation of the natural resources for the use of First Nations is a specific Treaty obligation made by the Crown. First Nations believe that the Crown agreed to provide protection and means to conserve the game, fish and other natural resources for the future generations of First Nations people. Because of the depletion of the buffalo and other game, First Nations wanted the Crown to be actively engaged in protecting the natural resources so that First Nations could continue a priority right to the natural resources required for their survival.
First Nations have responsibilities regarding lands and waters, given by the Creator, and they must exercise their duties throughout their territories to uphold their responsibilities. Given the current situation and with changes throughout the land, Saskatchewan has reached a critical point in regards to water. There are threats to sustainability, health and quality of life. The province is anticipating growth and it will bring with it an obvious increase in the demand for water and water services to satisfy its domestic, agriculture, business, industry, environmental, recreation, and power generation needs.
Saskatchewan “Environment Code”
On November 3, 2104, the Ministry of Environment officially announced the Code that contains 16 chapters that address such areas as air quality, impacted sites, water and natural resources protection. The Code will come into force in stages in 2015 to allow for “affected industries to prepare for the change.”
The major change in policy of the Environment Code’s is that the provincial government will NOT monitor resource development. The Code prescribes how the province has removed itself from the function that it served before, which was to monitor the “on-the-ground” environmental protection activities of the natural resource developer proponents. The Code now states that the natural resource development proponent must do its own “on-the-ground” monitoring and report its environmental protection findings and “stakeholder” consultation and accommodation activities to the province. The Code defines “what” the required environmental outcomes are and leaves the “how” to achieve compliance up to the regulated community.
The province will now merely audit the compliance reports submitted by natural resource development proponents. The Lands and Resources Secretariat viewed this aspect of the Code as its greatest weakness on protecting the environment and a delegation of the consultation and accommodation of Treaty rights to the natural resource developer proponent.
On February 16, 2012, the FSIN Chiefs-in-Assembly passed Resolution #1806 opposing the Saskatchewan Environmental Code and calling on Ministry of Environment (MoE) to implement its legal and constitutional obligations to consult and accommodate First Nations in Saskatchewan. Based on Resolution #1806, the FSIN was never involved in the RBR Framework process or the development of the Code. The FSIN maintains the position that government has a duty to consult and accommodate in relation to changes to legislation, policy or regulations that could impact First Nations.
Federal Government Policy
Liberal Party of Canada Election Platform: The Liberal’s election platform states: “Canadians must be able to trust that government will engage in appropriate regulatory oversight, including credible environmental assessments, and that it will respect the rights of those most affected, such as Indigenous communities. While governments grant permits for resource development, only communities can grant permission.
“We will undertake, in full partnership and consultation with First Nations, Inuit, and the Métis Nation, a full review of laws, policies, and operational practices. This will ensure that on project reviews and assessments, the Crown is fully executing its consultation, accommodation, and consent obligations, in accordance with its constitutional and international human rights obligations, including Aboriginal and Treaty rights and the United Nations Declaration on the Rights of Indigenous Peoples. We recognize the relationship between Indigenous Peoples and the land, and will respect legal traditions and perspectives on environmental stewardship.”
The Lands and Resources Secretariat will ensure the Saskatchewan First Nations participate in the promised “review of laws, policies, and operational practices” of the federal Liberal government. This review will also include the provincial government’s Environment Code and legislation.
Sacred Sites and Archaeology
Article 11of the United Nations Declaration on the Rights of Indigenous Peoples states:
- Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
The increased activity of natural resource development has had an adverse impact on First Nation archeological, heritage and sacred sites. There is growing concern among the First Nations that First Nation archeological, heritage and sacred sites are not receiving the protection and preservation they deserve.
The Ministry of Parks, Culture and Sport have an established working relationship with the Saskatchewan Indian Cultural College (SICC) Elders Advisory Council. The Council provides the ministry with guidance on the policies around managing and access to culturally sensitive sites. The Council is also a key element in the development of the province’s Archaeological Burial Management Policywhich the SICC’s Board of Governors approved in 2002. The policy specifies the SICC as the ministry’s primary contact for determining the treatment and disposition of newly discovered burial of First Nations origin.
In 1998 the Government of Saskatchewan, in co-operation with various First Nation agencies, acquired land for the creation of the Central Burial Site. This land, situated near Saskatoon, will accommodate the reinternment of human remains and grave goods of ancient Aboriginal origin when the original grave site is not available or known.
The Ministry of Environment administers The Environmental Assessment Act to ensure that economic development proceeds with adequate environmental safeguards to protect the land, environment and human health. The environmental assessments performed by the Ministry determine the proposed project’s potential environmental impacts, and the proponent’s actions to mitigate those potential impacts.
The Ministry of Agriculture is responsible for The Prairie Farm Rehabilitation Actpasture lands. The pastures provide areas for a variety of non-agricultural activities, such as hunting, tourism, mineral extraction, oil and gas exploration and development, research, recreation, and preservation of archeological and historical sites. The PFRA pasture lands have for the most part been undisturbed and have preserved First Nation archeological, heritage and sacred sites. A concerted effort is required to preserve the PFRA pasture lands so that First Nation archeological, heritage and sacred sites are preserved.
The Ministry of Parks, Culture and Sport administers The Heritage Property Actwhich protects and conserves archaeological, paleontological and built-heritage resources. The Ministry is to “gain further knowledge and increase public awareness, understanding and appreciation of Saskatchewan’s heritage through any suitable means.” Section 6.5 of The Heritage Property Actprovides: “The Foundation, on any terms and conditions that it considers appropriate, may retain the services of any consultants or professional or technical advisors that it considers necessary for the purposes of the Act.”
The Foundation administers The Heritage Property Act which protects and conserves archaeological, paleontological and built-heritage resources. The Foundation performs ‘Impacts Assessments’ to determine the effect of a proposed operation or activity and whether that operation or activity is likely to result in the alteration, damage or destruction of heritage property. During the performance of its mandate, the Foundation is to “gain further knowledge and increase public awareness, understanding and appreciation of Saskatchewan’s heritage through any suitable means.”
It is this aspect of the Foundation’s mandates under that the SICC is seeking an agreement to allow the meaningful participation and input of First Nations Elders, knowledge keepers and leadership. First Nations Elders, knowledge keepers and leadership possess a wealth of information that will greatly assist the Ministries in ensuring that any First Nation archeological, paleontological and other heritage resources receive the proper protection and preservation in Saskatchewan.
The inclusion of First Nations Elders, knowledge keepers and leadership may be accommodated by Section 6.5 of The Heritage Property Act that provides: “The Foundation, on any terms and conditions that it considers appropriate, may retain the services of any consultants or professional or technical advisors that it considers necessary for the purposes of the Act.”
Climate Change / Emergency Preparedness / Disaster Mitigation
Climate change has the potential to adversely impact all First Nations communities, but those in the North will be the most likely to feel the effects of climate change before any other communities. First Nations communities experienced the effects of climate change with last year’s forest fires. The length of the forest fire season was prolonged, as well as the intensity of the fires. Climate change may also exacerbate seasonal flooding.
Throughout the past decade, Saskatchewan has witnessed more frequent than normal numbers of extreme climate events that have forced communities, municipalities, urban centers and the provincial government to assess emergency services management.
Emergency management for Saskatchewan First Nations has never been more prevalent or necessary than it is today. The ability of First Nation communities to effectively prepare, respond and recover from natural disasters such as flooding, tornadoes, plow winds, out-of-control wildfires, or any disaster is critical to the communities’ long and short term sustainability.
The ability of a community to respond to disasters is directly proportional to their level of emergency preparedness. Ensuring that First Nations ‘at risk’ have the necessary resources required cannot be understated and therefore poses many questions about who is responsible for what, inside and outside the community.
In Saskatchewan, Indigenous and Northern Affairs Canada (INAC) regional officials work closely with ‘at risk’ communities to determine their needs, develop work plans, ensure that emergency plans are in place and fund emergency preparedness measures. According to an INAC official, approximately 73% of Saskatchewan First Nations have emergency plans in place.
It is imperative to be proactive when it comes to emergency preparedness and to deal with the impacts of climate change.
To strengthen emergency management on reserves, on November 2013, the federal government announced a new comprehensive single-window approach to emergency financial arrangements with improved access to emergency funds for First Nations and provinces. The new approach includes over $19 million annually to negotiate new or renewed formal agreements with provinces and territories and to support emergency preparedness activities.
On June 4, 2015, all First Nations and Tribal Councils received a letter of notice from Anna Fontaine, INAC Regional Director General, Saskatchewan Region, outlining INAC’s general mandate to support and fund programs through the Emergency Management Assistance Program (EMAP).
The Federal Budget released on March 22, 2016 promised $8.4 billion over five years as an investment in Indigenous issues. This included $2.24 Billion over five years on Green infrastructure to help the health and safety of First Nations communities. Of that $2.24 Billion, starting in 2016/17 two hundred and fifty five million ($255 million) over two years is to be used for a First Nations infrastructure program to support things like: roads, bridges, energy systems, broadband, fire protection and physical infrastructure to mitigate the impacts of natural disasters.
The Lands and Resources Secretariat will seek to build capacity within First Nations and First Nation organizations, to put in place emergency preparedness measures, so First Nations can mitigate the impacts of natural disasters.
Treaty Land Entitlement
On September 22, 1992, twenty-five Saskatchewan First Nations signed the Saskatchewan Treaty Land Entitlement (TLE)Framework Agreement (FA). That same day Nekeneet signed a similar but separate agreement. Mosquito and Ochapowace First Nations are the only two original 1992 signatories who have not yet achieved their Shortfall Acre amount.
Since 1992, an additional seven First Nations have signed settlement agreements based on the terms in the Framework Agreement. They are: Cowessess (1996); Carry-the-Kettle (1996); Kawacatoose (2000); Sturgeon Lake (2007); Muskoday (2007); George Gordon (2008); and, Pasqua (2008). Of these seven First Nations; the Muskoday, George Gordon and Pasqua First Nations have not yet achieved their Shortfall Acres.
The total value of all TLE settlements to date (Framework Agreementand post-Framework) is $595,505,684.83. The 33 TLE First Nations are to acquire a total of 2,277,325.30 acres; of that amount 547,667.02 are Shortfall Acres and 1,729,658.28 are Equity Acres.
As of January 6, 2015, the Saskatchewan Region has added 1,007,978 acres to reserve pursuant to claims and settlements since 1973. Of those 1,007,978 acres, a total of 835,700 acres have been added to reserve pursuant to TLEs based on the 1992 Framework Agreement and 58,789 acres pursuant to other Specific Claims since 1990. Of the amount of 835,700 TLE acres, 39%, or approximately 326,700 acres, has been Provincial Crown land. The remaining approximately 509.000 acres acquired and transferred to Reserve by TLE First Nations are freehold/private lands.
The other 113,489 acres include mostly TLEs between 1973 and 1992, before the TLE Framework Agreement was signed, which were settled using a current population formula called the Saskatchewan Formula. The First Nations settling under this formula included Black Lake, Fond du Lac and Lucky Man.
The TLE First Nations currently have a total 1,441,625.3 acres including both Shortfall and Equity acres which can be transferred to reserve. In addition, 141,000 potential acres could be added pursuant to other Specific Claims. From these two remaining amounts, the TLE and Specific Claim First Nations have selected and initiated 352,175 acres for additions to reserves but the process to convert those lands is not yet completed.
Additionally three other First Nations (Ahtahkakoop, Mistawasis, and Sakimay) are currently negotiating TLE settlements which will include additions lands to be added to reserve.
There are currently 51 urban reserves in Saskatchewan, with an additional 55 that have been initiated by First Nations.
The Lands & Resources Secretariat will continue to support and provide information, advice and assistance to the entitlement and Specific Claim First Nations on the issues they encounter as they implement their agreements.
Key Supreme Court Decisions
We are witnessing a recent trend of Courts and Tribunal decisions, which have increasingly found in favor of First Nations, particularly recognizing Aboriginal and Treaty rights in the area of Lands and Resources. Much of the litigation involves the government’s lack of consultation and/or accommodation when it comes to resource development within First Nations’ territories. In turn, this has placed a heavy burden on resource and land developers to consult and accommodate First Nations, whereas in the past, this was not the case. Although it is the governments who have the duty to consult and/or accommodate First Nations, they have delegated procedural aspects of consultation onto the resource and land developers. Even though in many cases First Nations have been successful in the courts, there have been losses too, and often this is a result of taking cases forward without the best fact situation or argument. And even when the courts side with the First Nations, all levels of government often ignore the decisions of the courts, or take a very narrow view of the decision, leaving no other choice but for the First Nations to further litigate. A brief discussion of some of the more recent decisions will be discussed in this section, and implications for First Nations in Saskatchewan.
The Tsilhqot’indecision was released in 2014. It is a British Columbia case wherein the Supreme Court of Canada (SCC) found that the First Nation had established Aboriginal Title over the claim area. This case involves forest licenses which were issued by the province within the First Nations’ territories. The First Nations had always maintained that the land in questions was their own. The SCC found that once Aboriginal Title is established, the First Nations have the exclusive right to decide how the land is used and has the right to benefit from its use. In addition, the Crown must justify any incursions on such lands. The SCC went so far as to say that in order to avoid allegations of infringement, the government should obtain the ‘consent’ of First Nations with respect to their established Aboriginal Title lands, and that provincial laws do not apply on such lands.
Tsilhqot’ingenerally impacts all claims, as it establishes a high standard for the Crown where s. 35 rights are concerned, given that s. 35 rights include Aboriginal and Treaty rights. It also reaffirms both levels of governments’ duty to consult and accommodate where assertions of titled or claimed areas are made, but are not yet proven, and could arguably apply to traditional lands used by the First Nations. In addition, the Crown cannot simply rely on “broader public interests”, such as economic benefits, to the detriment of the First Nations. Examples of this have occurred in Saskatchewan whereby the Province denied TLE First Nations the right to purchase economically valuable lands, with the Province using the “broader public interests” argument. As well, this decision may impact those First Nations who have not yet entered Treaty with the Crown, if the First Nations can prove occupation before sovereignty, continuity, and exclusivity.
Another interesting decisions in 2014 was that of Keewatin v. Minister of Natural Resources. This decision involved the province’s issuance of forestry licenses again, within the First Nation’s traditional lands. The First Nation launched an action to set aside the forestry license on the basis that it violated their Treaty #3 harvesting rights. The trial judge found in favor of the First Nation, particularly that it limited the First Nation membership’s harvesting rights pursuant to Treaty. The province appealed and the Ontario Court of Appeal disagreed with the trial judge. Keewatin appealed to the SCC, and at issue was whether the province has the right to “take up” Crown lands in the First Nation’s trap line areas. The FSIN intervened in this case at the SCC level, challenging the limitation (or extinguishment) of First Nations’ inherent and Treaty rights, as well as challenging the continued devolution of federal powers onto the provinces. Unfortunately, the SCC dismissed the Keewatin appeal and found that the province does have the power to “take up” lands under Treaty 3. However, the right to take up lands is burdened by the governments’ obligations to First Nations. Both levels of government are responsible for fulfilling these promises when acting within the divisions of powers. Any interests that may impact the First Nations’ interests must meet the standards as established in Mikisew, particularly that the honor of the Crown must be upheld. And if the taking up of land does not uphold the honor of the Crown, it will be an infringement of Treaty, although the infringement of Treaty was not argued in this case.
This case may at first seem that it gives the province exclusive powers over the land and its resources, which it does, but it limits the province to enact legislation, or make any decisions, which may infringe First Nations treaty harvesting rights. This judgment can be interpreted to ensure that First Nations’ rights and interests are strictly dealt with by the Province, which the SCC said has the same obligations of the federal governments. Both levels of government have the obligation to ensure that Treaty rights are fulfilled. The province has always indicated that Treaty obligations belong to the federal government, other than that which is to provide Treaty lands, pursuant to the Natural Resources Transfer Agreement 1930. This judgment now states that the provincial Crown is as obligated to honor and uphold the Treaties to the same degree as the federal Crown, and such may lead to many questions of treaty infringement within Saskatchewan alone.
The Danielsdecision was released by the SCC in April 2016. This case was launched in 1999 by a Metis activist, who sought three (3) declarations: that Metis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act; that the federal Crown owes a fiduciary duty to Metis and non-status Indians; and that Metis and non-status Indians have the right to be consulted and to be negotiated with. The SCC granted the first declaration, specifically that Metis and non-status Indians are under s. 91(24), and declined to make the 2nd and 3rd declarations, as it would be restating law.
The Danielsdecision is solely about jurisdiction and not rights. It does not grant the Metis and non-status Indians status under the Indian Act, nor does it grant either group any material benefits other than those they had before the decision. In terms of lands of resources, where Metis and non-status Indians are able to establish a connection to a specific area, they may be included in consultations with government, which likely extends to natural resource development. With respect to harvesting rights, the province is already working with the Metis as a result of the Powleydecision. This case does not affect the ongoing negotiations with the province. With respect to specific land claim settlements including TLE, it is possible the Danielsdecision could be used by Metis or non-Status groups to block the transfer or sale of Crown lands to First Nations, by arguing that the transfer of these lands to reserve could hinder future land claim settlements – although it is not certain whether the Province or Federal government would accept this argument. In terms of funding, this decision may affect the ‘envelope’ in that the federal government will have to justify any distinction in the level of funding/services it provides to status, non-status, and Metis peoples. And finally because this case was only about jurisdiction, it is almost certain to result in more litigation in terms of Metis and non-Status Indian rights and the obligations the Federal Government has to them.
Lands and Resources Secretariat
In the fall of 2016 the Federal Government announced that they would undertake four federal reviews: modernization of the National Energy Board (NEB); review of the federal environmental assessment processes (EAP); and reviews of the Fisheries Actand Navigation Protection Act. After extensive engagements with Tribal Councils, First Nations and an Elders’ Advisory Committee, the Federation of Sovereign Indigenous Nations (FSIN) provided final written submissions for all four reviews. On February 6 and 8, 2018, the federal government introduced into Parliament Bills C-68 (Fisheries Act) and C-69 (Impact Assessment Act).
On March 26 and 27, 2019, FSIN worked with the Canadian Environmental Assessment Agency to facilitate a two-day engagement forum for First Nations, Elders and technical staff to provide information on the Bills, as well as to obtain feedback on the development of Indigenous Knowledge policies. It has currently been announced that engagement sessions will be held with First Nations on the development of regulations with respect to the proposed legislation, but no dates have been finalized.
Since the last Federal election, many files have been reinvigorated with the appointment of a new Federal Negotiator for Saskatchewan and a new willingness to negotiate. A number of settlements in Saskatchewan have been concluded or are close to being concluded, including claims for Pasqua First Nation and Makwa Sahgaiehcan. Black Lake and Fond du Lac have reached agreements with Canada on Treaty benefits claims. Discussions are underway with legal counsel who represent Treaty 4 and Treaty 6 First Nations on a framework approach to settling Treaty benefit claims in the province. At the October 2018 Assembly, the Chiefs in Assembly passed a resolution supporting a framework approach to settling agricultural benefit claims, which First Nations in Saskatchewan could opt into to settle their claims.
In response to the Auditor General’s Report on Specific Claims, the Assembly of First Nations (AFN) and Indian and Northern Affairs Canada (INAC) have created a high level Technical Working Group to deal with claims reform. FSIN is part of this technical working group which has recommended the creation of a truly independent specific claims process. Cabinet has approved a process for engagement with First Nations, which is expected to happen during the summer and fall of 2019.
For the 2018-2019 fiscal year, funding was provided for a Treaty Land Entitlement (TLE) lands position within FSIN, as well as for FSIN to provide for a technical working group meeting and a two-day TLE Forum on environmental issues and the First Nations Land Management Act.
FSIN assisted in the Pieronedecision, a case which involved a Treaty hunter who was charged with hunting on private land where he had no permission. The Crown appealed to the Queen’s Bench, and then it was appealed to the Court of Appeal. The Crown further appealed to the Supreme Court of Canada (SCC), where the SCC declined to hear the case, which means that Pierone won and even though he did not have permission to hunt on the private land, he was exercising his Treaty right to hunt.
Another significant case involves Treaty hunters from the Six Nations First Nation in Ontario. Essentially, the province’s position is that Treaty or status Indians who are not from Treaties #2, 4, 5, 6, 8 and 10 do not have the same Treaty hunting rights as those Treaty hunters from the aforementioned Treaty areas in Saskatchewan. FSIN is working with the Treaty hunters from Six Nations in that this provincial policy may have nationwide implications for Treaty or status Indians who exercise their Treaty rights across Canada.
On Thursday, November 27, 2018, the Provincial Government introduced amendments to the Trespass to Property Act, The Snowmobile Act, andthe Wildlife Act. FSIN commissioned the law firm of McKercher LLP to undertake a legal review of the proposed changes which appear to require First Nations’ hunters to request access to hunt on lands that are not posted. Currently, if land is not posted, First Nation hunters would be able to hunt on that land if there is no visible incompatible use being put to the land (Badgercase), depending upon the circumstances.
FSIN has met with the Provincial Ministers of Justice, Environment and Government Relations and has written to Premier Moe raising concerns that the proposed changes would impact constitutionally protected inherent and Treaty rights. On January 15, 2019 the Lands and Resources Commission adopted a motion recommending that the Treaty Rights Protection Fund support an application for a potential legal challenge to the trespassing legislation. In February 2019, the Chiefs in Assembly adopted a Resolution, which directed FSIN to explore all political and legal options to challenge the proposed legislative changes, and if necessary, mount a legal challenge against the province in relation to the legislation. The province has stated that the legislation will not impact inherent and Treaty rights, but there remains uncertainty. FSIN is looking at a potential legal challenge to the legislation.
There are currently 34 Saskatchewan First Nations with outfitting businesses operating on-reserve.In 2016, the Ministry of Environment (MoE) sent correspondence to the First Nations requesting to meet to discuss sustainable wildlife populations on First Nation reserve lands, which would support a viable commercial First Nation outfitting industry. Subsequently the province indicated that the number of export permits that would be issued for the next hunting season (2017) would be determined by MoE based on its “Sustainable Harvest Strategy” for white-tailed deer, moose, mule deer and elk. An export permit is issued by the outfitter to its clients to transport animal parts across the Canada-United States border.
FSIN has been working with the First Nations and with the First Nations Outfitting Association (FNOA) on this issue since 2016. The MoE has agreed that the number of export permits issued to First Nation outfitters operating on-reserve for the 2017, 2018, and 2019 season would remain the same as the amount that was issued for the 2016 season. In addition, MoE agreed to engage with the First Nations who were affected by their proposed Sustainable Harvest Strategy. FSIN continues to work with the FNOA on the issue.
FSIN has established a Sr. Industry Liaison position to work as a liaison between industry, FSIN, the Saskatchewan First Nation Natural Resources Centre of Excellence (SFNNRCOE), and the First Nations. This included working with Enbridge and Husky, as well as with First Nations when issues arise with industry.
Enbridge’s Line 3 Replacement Program (L3RP) is a pipeline running between Hardisty, Alberta and Gretna, Manitoba. When the Government of Canada approved the L3RP in 2016, it came with 89 conditions, one of which required Enbridge to develop a plan for Indigenous operational consultation for the L3RP. As a result, an Indigenous Advisory and Monitoring Committee (IAMC) was created, consisting of First Nations and Metis who advise Natural Resources Canada on monitoring of the L3RP.
On July 21, 2016 there was a breach in a Husky Energy pipeline near Maidstone, which saw 225,000 litres of oil leak from the damaged pipeline, around 40 per cent of which made its way to the North Saskatchewan River. Nine First Nations with shoreline land were affected by this breach, as well as all traditionally used lands along the North Saskatchewan River. FSIN has been meeting regularly with Husky, and the SFNNRCOE, to address assessments of the water that was affected, among other issues.
The Serafina Energy Glenbogie SAGD Project in the Bronson Forest in northern Saskatchewan did not provide for adequate consultation and accommodation to the Makwa Sahgaiehcan First Nation, Ministikwan Lake Cree Nation, andthe Onion Lake Cree Nation. The First Nations met with the province on March 19, 2019 in Regina to discuss the lack of consultation. As a result, this project was deferred until November 2019. The First Nations are hopeful that this means the province will undertake to meaningfully and properly consult and accommodate the First Nations’ concerns. With the help of SFNNRCOE and FSIN, Serafina Energy facilitated two community information meetings in Makwa Sahgaiehcan and Ministikwan Lake Cree Nation.