Indigenous Rights are not Absolute

Commentary, Aboriginal Futures, Joseph Quesnel

Indigenous people today seem to think that their rights are absolute or act as if their rights trump everything else.

This attitude was seen clearly in a reaction from the Saskatchewan-based Federation of Sovereign Indigenous Nations (FSIN) after the Saskatchewan government changed the policy regarding when people can hunt on summer pasture lands.

All hunters must now receive the permission of pasture managers or lessees before hunting on former federal pastures or Crown land.

“I’m going to hunt on these lands, so be prepared to charge me,” dared FSIN Chief Bobby Cameron.

The policy change was made because the government was concerned about the safety of people in the pastures and especially concerned about the safety of livestock. Also, the Supreme Court has clearly ruled that safety is paramount in Indigenous hunting rights cases.

However, that does not stop some Indigenous people from acting like their rights are absolute.

Indigenous proponents of certain natural resource projects have developed the same absolutist attitude when they invoke the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) to oppose projects, arguing they have what amounts to veto power. But, even though Supreme Court rulings saying that UNDRIP is not a veto still does not stop some First Nation people from claiming that it does.

Indigenous peoples sometimes need to be reminded that their rights are not absolute and they must be balanced with rights and interests of other people. This is important because they need to understand that there are many other important objectives in society, such as the orderly development of resources to the benefit of all Canadians. Or for the conservation of resources.

In this age of truth and reconciliation, it is hard to not think that First Nations are the most important issue out there. Indigenous people need to learn more humility around these issues.

Our public policy discourse needs to move away from one where First Nations issues are paramount to one where they are one set, albeit an important set, among many. If that happens, perhaps Indigenous people will be more balanced in their demands and approaches and they will work more cooperatively with other Canadians.

One recent Federal Court ruling, as well as a recent action by the Alberta and Manitoba Governments, demonstrate how and why Indigenous rights are not absolute.

In Bigstone Cree Nation v. NOVA Gas Transmission Ltd., the Federal Court of Appeal unanimously upheld the government’s decision to approve a natural gas project in northern Alberta. It also concluded that Canada had adequately fulfilled its duty to consult and accommodate the Bigstone people, whereas Bigstone had failed to meet its reciprocal duty to engage in consultation in good faith. The ruling also upheld the National Energy Board (NEB) review process.

The court ruling found that the First Nation was given adequate time and funding to be consulted and accommodated. The Nation failed to do this.

The Manitoba Government recently announced it would curb the practice of hunting at night with spotlight, with some specific exemptions for Indigenous people. Predictably, First Nation critics said a ban on night hunting – a practice seen by wildlife groups as dangerous and unfair to game – violated their treaty and constitutional rights. First Nation organizations in Manitoba used that familiar complaint that they were not consulted enough. But, First Nations who oppose certain legislation will always say this. No amount of consultation is ever enough for these Indigenous organizations.

But, the province justly asserted its rights to protect wildlife and protect all people in the area.

Perhaps the most glaring and long-standing example of this problem is in the historic treaties across Canada. First Nations frequently interpret the treaties – such as the Numbered Treaties on the Prairies – to include things that were not in the original documents. The criticism levelled by Indigenous critics that treaties are not just “real estate transactions” is mistaken. But, that is largely what they were in reality.

So, fundamentally, governments need to remind Indigenous people and communities that their rights are not absolute or paramount. Other Canadians need to know this as well. All rights and interests must be balanced with other equally important rights. Placing Indigenous interests first allows First Nations people to discount the balance that is necessary and frankly it lacks humility which is also important.

One hopes that this information and more positive attitudes will change how we all view Indigenous rights in Canada.