Rcap-579.Pdf

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1 TABLE OF CONTENTS

I Page • LIST OF TABLES vi LIST OF FIGURES vii • PART ONE - HISTORICAL OVERVIEW

1.0 INTRODUCTION AND BACKGROUND 1

• 1.1 THE MKO REGION - 1670 TO 1980: FROM RUPERTSLAND TO HYDROPOWER 3

1.1.1 The Early Historic Period: Pre-Contact 3 — 1.1.2 The Post-Contact Period 5 • 1.1.3 The Fur Trade: Commercial Partnership and Mutual Benefit 6 • 1.1.4 The Forts of the HBC 8 | 1.1.5 The Royal Proclamation of 1763: The Emergence of the Treaty-Making Process 10 • 1.1.6 The Period of Increasing Intervention: 1774-1870 12 1 1.1.7 The Red River Colony 13 1.1.8 The British North America Act, 1867 14 • 1.1.9 The Manitoba Act, 1870 15 1 1.1.10 The Decline of York Fort and the Northwest Rebellion of 1885 17 • 1.1.11 For As Long as the Sun Shines: I The Treaties and Their Adhesions (1874-1910) 20 TREATY 4: The Qu'Appelle Treaty (September, 1874) 21 • TREATY 5: The Winnipeg Treaty (September, 1875) • and its Adhesions 21 TREATY 6: The Forts Carlton and Pitt Treaties (1876) 24 1 TREATY 10: The Brechet Treaty (1907) • and its Adhesions 25 1.1.12 Port Nelson and the "Bay Line": 1912-1929 26 1 1.1.13 The Constitution Act, 1930 27

1 1.2 RACISM, ASSIMILATION AND ALIENATION 31

_ 1.2.1 Provisions of the Indian Act 31 1 1.2.2 Residential Schools 32 1.2.3 Prohibition of Religious Expression m and Implementation of the Pass System 34 •

1 1

1 • 1 1.2.4 The Period of Relocation and Re-establishment: 1956-1973 35 • 1.2.5 The "Sixties Scoop" 37 • 1.2.6 Health Care 39 1.2.7 The Administration of Justice 42 • 1.2.8 Addictions 43

• 1.3 DEVELOPING THE NORTHERN "FRONTIER": 1930-1980 45

1.3.1 Industrializing the North: Mining and Hydroelectric Developments 47 • 1.3.2 Forestry Development 51 1.3.3 Provincial Power 53 1.3.3.1 Grand Rapids Hydro Project 54 • 1.3.3.2 The Churchill River Diversion- 1 Lake Winnipeg Regulation Project and The Northern Flood Agreement 54

. 1.3.4 The Promise of Employment: Tradeoffs or Tragedy? 57 1.3.4.1 Hydroelectric Development 60 - The Limestone Project 61 - The Northern Preference Clause 63 1 - Limestone Training and Employment Agency 63 - Manitoba Hydro Initiatives 64 - Manitoba Hydro Purchasing Guidelines 64 1 1.3.4.2 Forestry Development 69 1.3.4.3 Mining Development 73

1 PART TWO - KEEWATINOOK OKIMOWIN • • 2.0 THE M KO FIRST NATIONS TODAY: IDENTITY AND RIGHTS 76

21 THE EXISTING RELATIONSHIP - THE FIDUCIARY OBLIGATION 1 OF THE CROWN AND THE RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA 79 1 • 2.1.1 The Nature of the Crown's Fiduciary Obligation 80

1 2.1.2 The Nature of Aboriginal and Treaty Rights: Substantive Issues 84 2.1.2.1 The Constitution Act; 1982 85

ii 1

1 2.2 KEEWATINOOK OKIMOWIN 89

2.2.1 Treaties, Justice and Aboriginal Government 93 2.2.2 Health, Community and Child and Family Services 94 2.2.3 Natural Resources and Resources Management 94 2.2.4 Communications 94

2.3 CONTEMPORARY CONCERNS AND ACTIVITIES IN THE M KO REGION 95

2.3.1 Justice and Law: The Aboriginal Court System 95

2.3.2 The Healing Circle: Community, Family and Children 97

2.3.2.1 Child Welfare 99 -The Awasis Agency 100 -The Cree Nation Child and Family Caring Agency 105

2.3.2.2 Health Care 105 -Northern Manitoba Diploma/Degree Collaborative Nursing Program 108 -Aboriginal Education for Health and Human Services 109

2.3.2.3 Addictions 111 -The Nelson House Medicine Lodge 111 -The Northern Solvent Abuse Development Program 114 -The Proposed Cross Lake Treatment Centre 118

2.3.3 Natural Resources 118

2.3.3.1 First Nations' Participation and Negotiations in Natural Resources Management 119 2.3.3.2 Traditional Ecological Knowledge 122 2.3.3.3 Natural Resources Joint Management Initiatives 125 2.3.3.4 Recognition and Defense of Treaty-Based Resource Harvesting Rights 128 -Commercial Fishing Rights 128

iii 2.4 REDRESS AND CLAIMS 134

2.4.1 Claims Arising From Treaty: The Fiduciary Obligation to Settle Outstanding Specific Claims 134

2.4.1.1 The Formulas 136 2.4.1.2 Availability 137 2.4.1.3 A Case Study - the Manitoba Denesuline and the Inuit of Nunavut - Specific vs. Comprehensive Claims 139

2.4.2 Claims Arising From Development 141

2.4.2.1 Hydroelectric Development: 144 The Northern Flood Agreement 146 Manitoba Hydro 147 -The Fox Lake First Nation 147 -The War Lake (llford) First Nation 148 -Sayisi Dene First Nation (Tadoule Lake) 148 -Mathias Colomb First Nation 148 -Island Falls and Whitesand 148 2.4.2.2 Mining Developments 149 2.4.2.3 Forestry Developments 150 -Environmental Assessment 151 -Natural Resource Development and Allocation 151 -Resource Equity and Employment 151 -Community Resource Areas 151

2.4.3 Claims Arising From Government Policy 152

2.4.3.1 Relocation of Sayisi Dene and York Factory Cree 152 2.4.3.2 Residential Schools: Releasing the Silent Cry 152 2.4.3.3 Prohibition of Religious Expression 155

2.5 THE SELF-GOVERNMENT FRAMEWORK 156

2.5.1 Realizing Self-Government 156

2.5.2 Recognizing Self-Government 158

2.5.2.1 Constitutional Amendment 159

iv 1 1 t I 2.5.3 Re-establishing the First Nations-Crown Relationship 161 • 2.5.4 The "New" Relationship 162 1 2.5.4.1 Bilateral Recognition of the Right to Self-Government 162 • 1 2.5.5 Honouring the Treaties: Who is Responsible? 168

| 2.5.6 A "Treaties Implementation Act" 171 I 2.5.6.1 A Treaties Implementation Council and Director 171

• 2.5.7 Resolution of Outstanding Claims 172 2.5.7.1 A "Comprehensive and Specific Claims Act" 1 and Office of the Aboriginal Advocate 173

u 2.5.8 The Future of the Indian Act 173

" 2.5.9 Financial Agreements 175 •

1 PART THREE - MECHANSIMS AND SOLUTIONS

1 3.0 CONCLUSIONS AND RECOMMENDATIONS 177 GENERAL OBSERVATIONS 177 •I 3.1 3.2 PRINCIPLES FOR MUTUAL RECOGNITION, | RESPECT AND UNDERSTANDING 178 1 3.2.1 Recognition 178 3.2.2 Honour 178 1 3.2.3 Acceptance and Understanding 179 1 3.2.4 Independence 180 3.2.5 Consultation 180 1 3.2.6 Participation 181 • 3.2.7 Sharing 181 3.2.8 Education 182 1

1 APPENDIX A: TABLES (in numerical order) • APPENDIX B: MAPS AND FIGURES (in numerical order) 1 1 1 LIST OF TABLES (appearing in Appendix A)

TABLE 1 MKO First Nations' Population and Access Statistics

TABLE 2 MKO First Nations' Quantum of Outstanding Treaty Land Entitlements

vi LIST OF FIGURES (appearing in Appendix B)

FIGURE 1 Manitoba Keewatinowi Okimakanak Communities

FIGURE 2

Rupert's Land (1670)

ThFIGURe EffecE 3t of the Royal Proclamation of 1763 FIGURE 4 Canada in 1870

FIGURE 5 Treaty Boundaries

FIGURE 6 Lac Brochet (Northlands First Nation) Hunting Territory

FIGURE 7

REPAP Manitoba Forest Management Licence Area

FIGURE 8

REPAP Manitoba Operating Plan, Forest Management Unit #62

FIGURE 9 Northern Flood Agreement Communities, Generating Stations and Control Structures of the Lake Winnipeg Regulation-Churchill River Diversion Projects FIGURE 10 First Nation-Government Roles in Natural Resource Agreements: The Resource Allocation Strategy outlined by the Supreme Court of Canada FIGURE 11 Land Selections of the Manitoba Denesuline and the Inuit of the Nunavut Settlement Area

vii ACKNOWLEDGEMENTS

Keewatinook Okimowin: Mechanisms and Solutions is the result of several months of intensive research and consultations initiated in the spring of 1993 by the Natural Resources Secretariat (NRS) of the Manitoba Keewatinowi Okimakanak, Inc. (MKO)

The authors of this report wish to recognize the direction and interest provided by the MKO Executive Council, as well as the funding support of the Intervenor Funding Program of the Royal Commission on Aboriginal Peoples, without which the completion of this report would not have been possible.

The insights, positions, recommendations and perspectives of the MKO First Nations, their Chiefs, Elders, Councils and community members - provided in part during the MKO Special Assembly in May, 1993 and the MKO Annual Assembly in August, 1993 - have guided all aspects of this project. Several complex themes emerged in the research and consultations carried out for this submission, but one focus was maintained by the MKO First Nations: that a "new relationship" between First Nations, governments and non- aboriginal Canadians will be based on the recognition of First Nations' self-determination.

MKO personnel who assisted with the research for this submission are: Loretta Bayer, Louisa Constant, Ardell Cochrane, Stewart Hill, Jennie Wastesicoot and Angela McKay. The writing team would especially like to recognize the efforts, support and encouragement of the MKO Executive Director, George Neepin.

The processing of map biography information and the resulting Figures 6 and 11 were completed at MKO-NRS by Talbot Saunders on Hewlett-Packard and Compaq 486 computers running the TerraSoft GIS package, output to a Mutoh plotter. These figures are provided courtesy of the Northlands First Nations and the Sayisi Dene, and are reproduced from the January, 1993 MKO-NRS report Denesuline Nene and Nunavut: A Boundary In Dispute.

This submission was researched and written by Michael Anderson and Alison Haugh using Compaq Contura, Compaq ProSignia and Hewlett-Packard Vectra computers running Wordperfect 5.1 and printing to a Hewlett-Packard LaserJet printer.

MKO would like to thank Alison Haugh for the contribution of portions of her unpublished Master thesis to this important submission.

Graphics, compilation of tables and report assembly was also done by Alison Haugh. The tables were produced on an Apple Macintosh running Microsoft Excel.

The cover and additional graphics were produced by Michael Anderson on a Hewlett- Packard Vectra computer running CADD5, QuikMap and Harvard Graphics.

The research team also relied on Norton Advanced Utilities to avert and recover from some disasters. Royal Commission on Aboriginal Peoples SUBMISSION OF THE MANITOBA KEEWATINOWI OKIMAKANAK, INC.

1.0 INTRODUCTION AND BACKGROUND

Manitoba Keewatinowi Okimakanak (MKO) is the Cree equivalent of northern Manitoba Chiefs1. MKO represents the 25 Cree, Ojibwa-Cree and Denesuline First Nations who inhabit roughly two-thirds of the province of Manitoba (Figure 1). Stretching from the aspen parklands at approximately 52° 30' longitude to the tundra at 60° longitude, the MKO region is predominantly boreal forest. It is a region that is almost completely interconnected by trails, rivers, lakes and portages, and contains hundreds of spring, summer and winter hunting, fishing, gathering and trapping encampments. Researchers have estimated that the boreal region of northern Manitoba supports what is perhaps the most extensive and intensive traditional use by aboriginal peoples of any territory in North America.

Before the Europeans journeyed to this sacred land called Canada, our people were proud and self-reliant, with a highly sophisticated civilization.

Why have we, the descendants, been reduced to dependency on the state, the poverty, the alcoholism and to other evils of European civilization? The aboriginals of Peru have a phrase of how this happened. They call it "world reversal." To understand this phrase, it is necessary to go back in our history. In order to understand ourselves, we must study the past, examine the traditional ways and draw life's inspirations and wisdom from it. Only through the analysis and understanding of our past, will we be better able to determine the appropriate path for our future.

We have a commitment to educate ourselves and also the non-native people. Our paths have been blocked by our white brothers and most of us are brainwashed and lost. We have to look back and retain our values.2

1 "Okimakanak" means "made-Chiefs" or those persons who were chosen for the purposes of signing treaty, and who have been elected in subsequent years to govern the affairs of First Nations in a form consistent with the provisions of the Indian Act. The Cree term, "okimow", refers to those persons who are acknowledged by the community for their skills, knowledge and wisdom in specialized areas, such as hunting and fishing. During the height of fur trade, others were recognized as trading captains.

2 D'Arcy Linklater, Nelson House First Nation, Manitoba First Nations Self-Government, Discussion Paper 3(c), prepared for the Keewatin Tribal Council (December, 1991), at p. 1.

1 Prepared by M KO, this submission to the Royal Commission on Aboriginal Peoples is intended to serve as a reference guide to the role that M KO plays in the advancement of its member First Nations' interests. The paper is divided into three sections:

1. a documentation of the history of the M KO region and the 34 000 Treaty aboriginal peoples who M KO represents;

2. a presentation of the contemporary concerns and activities of the M KO membership; and

3. a submission of recommendations for future action in the M KO region.

It will become apparent from a reading of this report that the bulk of the information presented focuses on natural resource and land issues in the MKO region. Even though First Nations' land and resource concerns have received considerable attention by the courts in recent years, these issues remain largely unresolved. By contrast, the issue of First Nations' control in the areas of education, health care, child welfare and justice is progressing toward resolution at a rapid pace.

This disparity in the amount of progress that has been made to date can largely be attributed to the fact that the provincial government continues to assert virtually exclusive jurisdiction over lands and resources, and does not appear willing at his time to acknowledge the inherent right of First Nations to self-government in these areas. Dissimilarly, the federal government has taken steps to transfer its jurisdiction over education, health and social services to MKO First Nations through such measures as Framework Agreements and the provision of funding. These federal initiatives are geared toward the establishment of First Nations-controlled institutions in the MKO region.

To summarize, the primary purpose of the MKO submission to the Royal Commission is to create a bridge between governments and First Nations' government organizations: it is anticipated that this paper will help to build the foundation upon which a new relationship between two disparate cultures can be based. In short, this submission is intended to form a comprehensive resource package for use by the Commission, federal and provincial governments, First Nations' government organizations and other interested parties in the realization of self-government and regional well-being in MKO First Nations' traditional territories.

2 1.1 The MKO Region -1670 to 1980: From Rupertsland to Hydropower

1.1.1 The Early Historic Period: Pre-Contact

Since deglaciation, about 7500 B.P., settlements of aboriginal peoples with different economic adaptations and cultural traditions were dispersed across the length and breadth of the North and South American continents3. As the ice withdrew from the land, most of Manitoba and parts of Saskatchewan and northern Ontario were covered at various times by the resulting meltwater, or Lake Agassiz4. A barren and lifeless landscape was soon released from the pressure of the ice and water, but many centuries passed before the land could sustain plant, animal and human populations. The southern portion of the province witnessed the earliest influx of people, but almost 4000 years passed before humans made their first appearance in parts of northern Manitoba .

In terms of population density, "archaeological evidence is mounting to the point where is can now be argued with growing conviction, if not absolute proof, that the pre- Columbian Americas were inhabited in large part to the carrying capacities of the land for the ways of life that were being followed and the types of food preferred"6. The vision of early humans as aimless wanderers in search of food does not equate with the evidence collected. In fact, the contrary is strongly indicated: aboriginal peoples have always lived in communities that were as stable as food resources permitted7.

Genealogical studies of northern Manitoba's aboriginal peoples identify them as descendants of the Agate Basin people. The Agate Basin culture evolved into the Shield Archaic society, a culture identified as Proto-Algonquian, or directly ancestral to the Cree, Ojibwa, Naskapi and Algonquian peoples of later times8. Ancestors of the present-day aboriginal peoples of northern Manitoba were highly dependent on a harvest of fish and wildlife resources for subsistence, and reliant on a land base for their cultural survival.

3 Olive P. Dickason, Canada's First Nations: A History of Founding Peoples From Earliest Times (1992), at p. 27.

4 Manitoba Culture, Heritage and Recreation [MCH&R], The Oldtimers: First Peoples of the Land of the North Wind (1989), at p. 5.

5 Ibid., at p. 7.

6 Dickason, above, note 3, at p. 27.

7 Ibid., at p. 34.

8 Hilderman, Witty, Crosby, Hanna & Associates [HWCH], Northern Flood Communities Land Exchange and Land Use Study (1983), at p. 246.

3 The primary resources harvested by the Shield Archaic people were fish and caribou, although in some areas moose was the preferred harvest. Fish were abundant and available throughout the year in most areas of the north, and caribou were hunted on the tundra in the summer and in forested areas during the winter. Beaver, muskrat, geese, ducks, bear, porcupine and hare were also important sources of food.

A regular and abundant supply of fish sustained large numbers of Cree at spring and summer fish camps along the shores of some of the major lakes in what is now northern Manitoba. This reliable fish supply, supplemented by caribou, moose and other game, likely enabled the Cree to increase and expand their territory further northward9.

Given the historical and contemporary importance of the fishery, and necessity of water for human and animal survival, as well as transportation and communication, it is not surprising that the Cree have occupied and continue to inhabit areas adjacent to the lakes and rivers of their traditional territory/hunting grounds10.

The availability of resources varied according to the locality, season, annual migration patterns and long term population cycles11. Fluctuations in animal populations, coupled with unpredictable changes in migration routes translated into periods of famine and starvation among aboriginal peoples, particularly among the Cree12. Death by starvation was formerly one of the most powerful and cohesive forces in a hunting-gathering life. For these peoples, even the conceptual possibility of benign personal accumulation did not exist: an accumulation of food for one's own personal consumption signalled a threat to the survival of others13.

During the pre-contact period, the political, economic and social organization of the aboriginal societies in northern Manitoba was constructed primarily around kinship- centred hunting groups14. Among these hunting and gathering groups, as opposed to the fishing cultures of the west coast or the Iroquois-speaking horticultural tribes, hunters and their families came together, cooperated, and shared food resources and labour

9 MCH&R, above, note 4, at p. 87.

10 Ibid., at p. 76; Island Lake Tribal Council, God's Lake Narrows: Community Information (1984), at p. 7.

11 HWCH, above, note 8, at p. 246.

12 Ibid.

13 Rupert Ross, Dancing With A Ghost: Exploring Indian Reality (1992), at p. 134.

14 HWCH, above, note 8, at p. 246.

4 based on familial relationships that extended beyond the conjugal or "nuclear" family15. Thus, at most times of the year, the residential group was defined by paired families or the "extended family" group. The hunter-gatherer lifestyle was based on regulated patterns that had evolved over thousands of years, and grew out of an intimate knowledge of resources and sustainable ways of exploiting them.

Leadership was not institutionalized, but dependent on skill, wisdom and experience. Survival demanded that each person was proficient in many activities: the person who was esteemed most highly was the one whose proficiency in all things was the most pronounced16. Thus, the okimow or "isumatag" ("one who thinks") was not a specialist, but a generalist17.

1.1.2 The Post-Contact Period

When the first Europeans appeared on the North American continent, a world of ever- narrowing skills began to supplant general expertise and wisdom as a source of esteem among Manitoba's aboriginal peoples. In addition, a new skill emerged as essential to the survival of the kinship-oriented groups: the skill of dealing successfully with the outside world18.

The time of the first known European contact with North America was circa A.D. 1000 by the Norse19. At this time, many of Canada's aboriginal peoples were at least partly agricultural, but by far the majority of these peoples were hunters and gatherers, as one might expect from the country's northern location20.

The North American fur trade originated as a subsidiary to the transatlantic fishing and whaling industry of the Basque, Breton and Norman peoples21. In pursuit of cod on the Grand Banks of Newfoundland, these fishermen also encountered aboriginal peoples and began trading clothing and ironware for furs.

15 Ibid., at p. 248.

16 Ross, above, note 13, at p. 112.

17 HWCH, above, note 8, at pp. 248-49.

18 Ross, above, note 13, at p. 112.

19 Dickason, above, note 3, at p. 63.

20 Ibid.

21 HWCH, above, note 8, at p. 250.

5 In the period 1600-1663, the fur trade was liberated from its dependence on the fishing industry. The depletion of beaver stocks in the heavily traded areas led to the expansion of the trade into the interior of the North American continent22. By 1654-56, the French had made direct contact with the Cree, a group whose territory extended "as far as the North Sea [Hudson Bay]"23.

The Cree were given many names by the French and English, including Cristinaux, Christino, Kristinaux, Killistinaux24. In some of the earlier records they are referred to as Nahathaways, Kskatchewans, Muskegons (Swampy Cree) or simply the Southern Indians, and the Denesuline (Chipewyan) were known as the Northern Indians25. At the time of European contact, the Cree were already the largest single group of Canadians and were destined to become even more numerous and widespread as they prospered through the fur trade26.

The search for the Straits of Anian, or the Northwest Passage to Asia, brought the first Europeans to northern Manitoba27. In 1611, Henry Hudson led an expedition into James Bay, only to make a brief encounter with a lone Cree who refused to trade. This behaviour suggests that the Cree had a clear idea of the trading protocol to be expected28. Sporadic trade did not develop into a continuing relationship at this time.

1.1.3 The Fur Trade: Commercial Partnership and Mutual Benefit

Between the 16th and 18th centuries, France and England laid claim to the portion of the "new world" that is now Manitoba. Each encouraged trade and settlement, and each made alliances with the aboriginal peoples who lived in the regions of initial contact. As the European colonies grew in size and population, aboriginal-European relations became an important aspect of colonial policy.

22 Ibid. 23 Ibid.

24 Dickason, above, note 3, at p. 141.

25 HWCH, above, note 8, at p. 245.

26 Dickason, above, note 3, at p. 141.

27 HWCH, above, note 8, at p. 249; J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (1989), at p. 25.

28 Dickason, above, note 3, at pp. 92-3.

6 For much of its history, the story of Manitoba is the story of the Company of Adventurers of England trading into Hudson Bay, or the Hudson's Bay Company [HBC] as the firm was commonly known. By 1670, the conduct of aboriginal affairs was placed into the hands of the colonial governors and their councils29. At this time, the Hudson's Bay Company received the Rupertsland Charter from the British Crown. This Charter purported to bestow on the HBC a monopoly over trade originating in Rupertsland, or the Hudson Bay-James Bay drainage. This "virtual subcontinent of 1.5 million square miles"30 was the equivalent of nearly 40 percent of modern Canada31. Rupertsland is identified in Figure 2.

The Rupertsland Charter refers to the region as "British", but at the same time it clearly acknowledges the fact that these lands embraced the traditional territories of the Cree of northern Quebec and Ontario, the Ojibwa in the region between Lake Superior and Lake Winnipeg (a people who would later be known generally as Saulteaux in western Canada), the Cree north and west of the Ojibwa, the Denesuline to the north of the Cree and the Siouan Assiniboine in the south.

At the time the Charter was issued, the Assiniboine relied upon a Plains culture that centred around the bison. In the north, the caribou was the sine qua non of the Denesuline. The Ojibwa depended upon a mixed economy of hunting, fishing and horticulture, in particular the gathering of wild rice that grew in many of the region's lakes. The Cree were principally hunter-gatherers who relied on hunting, fishing and the collecting of berries, labrador tea and wood for fuel and cabin construction32.

Trade between the English and the aboriginal peoples at this time was entirely in fur and other animal products, and is described in the Charter as an HBC "Right"33. The Charter essentially provided a licence to the HBC in order that it might restrict the trade in products of aboriginal land use and occupancy (i.e. furs and game).

No powers were granted to the HBC by the British sovereign to affect aboriginal occupation (except to protect forts and factories and continue a peaceful trade), and thus the Charter is silent on the application of the governing structure to the aboriginal population.

29 Neil McDonald, A Summary of Aboriginal Issues Today (1990), at p. 5.

30 Peter C. Newman, Company of Adventurers (1986), at p. 436.

31 Ibid., at p. 114.

32 Miller, above, note 27, at p. 117.

33 Newman, above, note 30, at p. 437.

7 1.1.4 The Forts of the HBC

From 1670 to 1682, no attempt was made by the HBC to establish a permanent post on the west coast of Hudson Bay. In 1682, a group of traders from New England established a post twenty-six miles up the Nelson River on "Bachelor's" or "Gillam" Island34. In 1684, a fur trading, grading and processing post known as York Fort35 was constructed on the north shore of the Hayes River in northern Manitoba. The Cree who inhabited this region were known as the Homeguard Cree by HBC officers and employees36. The Homeguard Cree and a number of Assiniboine soon became an established feature of the post, "a consequence of the shift in subsistence strategies brought about by the fur trade as prehistoric exploitation of the total environment gave way to the specialized pursuit of fur-bearing animals"37. The present-day York Landing, Fox Lake and Churchill Cree are direct descendants of the Homeguard Cree.

Both the Cree and Assiniboine controlled the trade of other interior aboriginal populations, since the interior groups were now obliged to pass through Cree-Assiniboine territory to reach York Fort38. The Cree and Assiniboine acted as intermediaries in the fur trade by trading the pelts provided by the interior groups for European goods39. Control of the trade, strengthened by the firearms obtained from the trading posts, enabled the Cree and Assiniboine to expand their territory to the north, south and west into the territory of the Sioux, Gros Ventres, Blackfoot, Bloods, Beavers and Denesuline40.

34 HWCH, above, note 8, at p. 251.

35 York Fort later became known as York Factory, or as the Swampy Cree called it, "Kihciwaskahikanihk", which means "place of the great house": Frank Tough, The Demise of the York Factory "Homeguard" Cree with the Decline of Kihciwaskahikanihk (1987).

36 Michael Payne, The Most Respectable Place in the Territory: Everyday Life in the Hudson's Bay Company Service, York Factory: 1788 to 1870 (1989).

37 Dickason, above, note 3, at p. 138.

38 HWCH, above, note 8, at p. 251.

39 ILTC, above, note 10, at p. 8; HWCH, above, note 8, at p. 251.

40 HWCH, above, note 8, at p. 251.

8 In 1686, the trade rivalry between the English and the French turned to open hostility and culminated in the French defeat of the English and the capture of English posts on Hudson Bay41. However, victory in Europe by the English over the French and the resulting Treaty of Utrecht in 1713 led to the restoration of English control over the posts on Hudson Bay42.

The Treaty of Utrecht succeeded in reinstating English control of the posts along the Hudson Bay coast, but failed to establish the boundary between French and English territories in the Hudson Bay region43. As a result, between 1731 and 1749, the French established a chain of posts in the interior from Lake Superior to the Saskatchewan River watershed. This diverted much of the trade in furs from the HBC and renewed the rivalry between the English and the French in the fur trade.

In 1717, the HBC founded Fort Prince of Wales at Churchill. At this time, the Churchill River estuary was virtually uninhabited, but was bordered by the lands of the Cree, Denesuline and Inuit. As such, it was hoped that the Fort would become both a major fur-trading centre, and a strategic location for the defence of HBC trade and territories44.

At Fort Prince of Wales, the most important indigenous source of food was the seasonal bird harvest. Wild geese, partridge, ducks and curlew were harvested in the spring and autumn. Small game species such as the willow ptarmigan and snowshoe hare, as well as big game animals were also taken in large numbers and traded by the aboriginal peoples in the region. With respect to furbearers, since the Churchill River drained a much smaller area than the Nelson River, the fur returns at Fort Prince of Wales never exceeded half the returns at York Fort45. In fact, throughout the fur trade history, York Fort was one of the most important places in the subarctic46, and was "the most important single source of supply of European trade goods for the Indians of central and southern Manitoba and Saskatchewan"47.

41 D. Francis & T. Morantz, Partners in Furs: A History of the Fur Trade in Eastern James Bay: 1600-1870 (1983).

42 Carl L. Wall, North-East Planning Zone: A Resource Information Package (1976), at p. 40.

43 Ibid., at p. 41.

44 Newman, above, note 30, at p. 203.

45 Ibid.

46 Tough, above, note 35, at p. 1.

47 HWCH, above, note 8, at p. 72.

9 From the first tentative trades in the 1600's until 1763, the Cree (along with the Assiniboine and Denesuline) exercised a virtual monopoly on trade with York Fort and most of the other Hudson and James Bay posts48.

Europeans were able to establish themselves in Canada largely because a large number of aboriginal peoples willed them to do so. Since aboriginal peoples in the beginning controlled the fur trade and were militarily superior to the newcomers, European entry into the land could not have been accomplished without the cooperation and participation of the First Nations of the land49. However, what was clear to Europeans from the start was that aboriginal peoples did not have the cohesion to prevent the invasion and dispossession of their lands. The tendency toward fragmentation, which had been so effective as a technique for survival of independent aboriginal societies before contact, with the arrival of Europeans became an instrument for their domination50.

1.1.5 The Roval Proclamation of 1763: The Emergence of the Treaty-Making Process

To the Indians, land is inalienable. Indians believe that land is held in common by all members of the tribe, a political community that is perpetual. Every member of the community in succeeding generations acquires an interest in the land as a birthright In this way, the tribal patrimony passes from one generation to the next. These ideas are not, however, widely understood or appreciated by Europeans. For them, land is alienable, a commodity to be bought and sold; if land were inalienable, this would impede its profitable use.™

To the historian Irene Spry52, the greatest tragedy for aboriginal peoples in Western Canada was "the loss ... of their customary commons to private owners of exclusive property rights". This theme is continuous throughout the history of aboriginal - Euro- Canadian relations, one that is manifest in the Royal Proclamation of 1763 and repeated in the Canadian treaty-making process.

48 Newman, above, note 30, at p. 248.

49 Dickason, above, note 3, at p. 12; Miller, above, note 27 at pp. 119-120; B. Trigger, Natives and Newcomers (1985), cited in James S. Frideres, Native Peoples in Canada: Contemporary Conflicts, 3ed. (1988), at p. 18.

50 Dickason, above, note 3, at p. 83.

51 Thomas R. Berger, A Long and Terrible Shadow (1991), at p. 100.

52 Irene M. Spry, "The Tragedy of the Loss of the Commons in Western Canada," in A.S. Lussier and Ian A.L. Getty (eds.), As Long as the Sun Shines and the Water Flows (1983), at p. 219.

10 Prior to 1763, British foreign policy was partly determined by the desire to maintain the aboriginal peoples as military allies in the struggle with France for possession of the continent53. The Peace of Paris of 1763 and the Royal Proclamation of the same year fundamentally altered the European-aboriginal relations established through the fur trade. France ceded title and claims to all territory in the northern part of North America, with the exception of the St. Pierre and Miquelon Islands, to the British by the Peace of Paris54. The new rulers of this territory issued the Royal Proclamation, a document that would have profound impacts on the aboriginal population, both immediately and throughout Canadian history. The geographical effect of the Royal Proclamation is identified in Figure 3.

The geographic reach of the Proclamation is a matter of some controversy, given that many of the maps completed at this time were based on incomplete surveys, and that the Proclamation itself did not specify a western boundary55. It has been argued that Rupertsland was excluded from the operation of the Proclamation56. However, Canadian courts have expressed the view that aboriginal rights apply throughout the Dominion, notwithstanding the Proclamation's geographical limits . Thus, whether or not the Proclamation applies to modern Manitoba, it deserves some attention.

The preamble to the Proclamation is significant in determining the intent of the document and recites as follows:

"And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominion and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds;"68

53 McDonald, above, note 29, at p. 6.

54 Miller, above, note 27, at p. 71; Frideres, above, note 49, at p. 41.

55 Frideres, above, note 49, at p. 80.

56 The Proclamation was held inapplicable to Rupertsland by the court in Sigeareak v. ft, [1966] S.C.R. 645 (N.W.T.). The same argument is advanced by Peter Cumming and Neil Mickenberg, Native Rights in Canada, 2nd. ed. (1972), at p. 149; James B. Waldram, As Long as the Rivers Run (1988), at p. 27; Jack Woodward, Native Law (1990), at p. 79.

57 Author unknown, The Law of Aboriginal Rights (n.d.), at p. 31.

58 Cumming and Mickenberg, above, note 56, at p. 30.

11 This clause of the Proclamation was intended to avoid conflict between the indigenous population and land-hungry settlers59, and was meant to lay the groundwork for legally and pacifically extinguishing the title to the land held by the aboriginal nations . Although the location of these lands and the content of the interest implied by the phrase, "reserved as their Hunting Grounds" is open to interpretation, the document does acknowledge that such lands existed and that the aboriginal peoples who used and occupied them had an interest that was obtainable through cession or purchase61.

Referred to as the "Charter of Indian Rights"62, the Proclamation established a precedent in recognizing some aboriginal right (if ill-defined) to the lands occupied by aboriginal peoples63. At most, the document recognized a right to use Proclamation lands as "Hunting Grounds". The proprietary interest was recognized as a right that could be "disposed of, presumably to a "purchas[er]" only by first transferring the interest to the Crown in the manner required by the Proclamation. In this way, the Royal Proclamation set the stage for the signing of treaties with aboriginal peoples on a larger and more formal scale64.

1.1.6 The Period of Increasing Intervention: 1774-1870

In 1774, the French were replaced by a group of independent traders who organized themselves into the North-West Company (NWC). The NWC went into direct competition with the HBC, challenging their Charter65.

Also in 1774, Samuel Hearne, an employee of the HBC, left York Fort and established the first inland post at Cumberland House66.

59 Miller, above, note 27, at p. 73.

60 McDonald, above, note 29, at p. 6.

61 Michael Asch, Home and Native Land (1988), at p. 58.

62 Waldram, above, note 56, at p. 25.

63 Ibid., at p. 27.

64 Ibid., at p. 25.

65 Wall, above, note 42, at p. 41.

66ILTC, above, note 10, at p. 9.

12 In an attempt to augment the number of inland posts, the HBC began to utilize the Hayes River as the major transportation route67. In fact, the Hayes River system continued to be the main transportation artery of the HBC until 1882, and during the same time period, York Fort operated as the port of entry for the west68.

Seven years after its establishment, Cumberland House was reached by a smallpox epidemic. The vicinity of The Pas was also affected. Devoid of any natural resistance to the disease, one-half to three-fifths of the Cree population in the affected area died, and Cree expansion to the northwest ended69. By 1790, lands which the Cree controlled in the late 1770's became part of Denesuline traditional territory70.

Also in 1782, the French captured and destroyed Fort Prince of Wales. However, by virtue of the Peace of Paris, the French were effectively eliminated as a trading rival. The fur trade at Churchill resumed, but never regained the importance it held for Cree and HBC traders prior to 1782.

Throughout the history of the fur trade, the migration and fluctuation of the animal populations witnessed many openings and closings of the HBC posts71. Maintenance of the posts, coupled with the demands of the fur trade eventually resulted in the depletion of game, although this did not happen everywhere to the same extent or at the same time. Natural cycles of plenty and scarcity were intensified, making glaringly evident the fundamental conflict between the requirements of the fur trade and the needs for subsistence72.

1.1.7 The Red River Colony

In 1812, the HBC went into the land settlement business under a major shareholder, Thomas Douglas, Earl of Selkirk73. Five years later, Douglas entered into negotiations with the chiefs and warriors of the Cree and Saulteaux Nations for the extinguishment of

67 Wall, above, note 42, at p. 42.

68 ILTC, above, note 10, at p. 9.

69 HWCH, above, note 8, at p. 253; Newman, above, note 30, at pp. 373-74.

70 HWCH, above, note 8, at p. 253.

71 ILTC, above, note 10, at p. 10.

72 Dickason, above, note 3, at pp. 142-43.

73 Frideres, above, note 49, at p. 69.

13 aboriginal title to land adjacent to the Red and Assiniboine Rivers. The consideration of the surrender was the annual payment of one hundred pounds of tobacco to each Nation74.

The Red River Colony was established shortly after the cession of aboriginal title and the arrival of the settlers. At this time, another agent of cultural change appeared in the form of the missionaries. These missionaries launched an attack on fur trade practices, a move that led many chiefs, including Peauis, to charge that the treaty signed with Selkirk reflected only the white man's interests .

In the north, a major cultural change was occurring among the Cree: at Norway House, the missionary James Evans devised the syllabic system of writing76. This system spread rapidly throughout the Cree-speaking north, and by the end of the 19th century, the Cree had one of the highest literacy rates in the world77.

In 1821, the HBC and the NWC merged78. From 1821-1870, the Hudson's Bay Company enjoyed a monopoly in the fur trade combining North-West Company skills and Hudson's Bay Company stability79.

1.1.8 The British North America Act. 1867

In 1867, Canadian authorities acquired legislative independence through the British North America Act (hereafter referred to as the "BN A Act"). The BN A Act made Canada the third country in history, after the United States and Switzerland, to adopt a federal system of government80. The Act allocates and delineates the exclusive powers of the federal government under Section 91, and those of the provinces under Section 92.

Section 91 (24) of the BNA Act gives the federal Parliament exclusive legislative jurisdiction over "Indians and Lands Reserved for the Indians".

74 ibid., at p. 70.

75 Dickason, above, note 3, at p. 240.

76 Ibid., at p. 241.

77 Ibid.

78 Newman, above, note 30, at p. 379.

79 Wall, above, note 42, at p. 42.

80 James John Guy, People, Politics and Government (1986), at p. 226.

14 Since aboriginal rights are intimately connected with the possession and use of the land, it seems probable that these rights form an intrinsic part of the subject-matters covered by s. 91 (24)81. However, the BNA Act contains no express recognition of aboriginal rights, and therefore cannot be viewed as a statutory reference to them.

The BNA Act allocated jurisdiction over natural resources - specifically stated as lands, timber and minerals - to provincial governments. By virtue of sections 109 and 117, the provinces were vested with the ownership of much of the land of the country. Furthermore, by virtue of section 92, the provinces were given the authority to legislate with respect to property and civil rights (s. 92.13) and to the management and sale of public lands (s. 92.5). Although section 91.12 of the BNA Act places the seacoast and inland fisheries under the exclusive legislative purview of the federal government, the nature of proprietary fisheries (i.e. their legal attachment to the lake or river bed) clearly puts the inland (nontidal) fisheries under provincial jurisdiction82.

Despite the delineation of powers, then, concurrent jurisdiction over the fisheries exists between the federal and provincial governments. More specifically the federal government is responsible for fish populations and habitat, whereas provincial governments are responsible for the harvesters of the fish resource83.

However, at the time the BNA Act was ratified, Manitoba was still part of Rupertsland, and therefore did not exist as a province. In fact, only the three provinces of Nova Scotia, New Brunswick and Canada (i.e. now Ontario and Quebec) were united into a federal state. Thus, the natural resources within the confines of present-day Manitoba were still under the purview of the federal government at this time.

1.1.9 The Manitoba Act. 1870

Three years after the general union of British North American colonies was established, the HBC sold its proprietary rights to Rupertsland to the Government of Canada. Also in 1870, the nucleus of Manitoba, comprising much of the Red River Colony, was formed as a fifth province (Figure 4). To many of the aboriginal peoples in this area,

81 Brian Slattery, "Understanding Aboriginal Rights" (1987), 66 Canadian Bar Review 727, at p. 775.

82 P.C. Thompson, "Institutional Constraints in Fisheries Management", Journal of the Fisheries Research Board of Canada (1974), 31(12): at p. 1972; Murray W. Wagner, "Footsteps Along the Road", Alternatives (1991), 18(2): at p. 24.

83 Joe O'Connor, Director, Fisheries Branch, Manitoba Department of Natural Resources, personal communication, September 1993.

15 it appeared that the HBC sold them as well84. The inhabitants of Rupertsland were not consulted partly because of Canada's anxiousness to annex the lands before the Americans to the south could interfere, and partly because of a belief that there was no one in the region to consult; aboriginal and Metis peoples did not figure into any political equation that Victorian politicians and bureaucrats were attempting to solve85. Discontent among the inhabitants manifested itself in the provisional government of Louis Riel, a measure intended to safeguard aboriginal and Metis rights by dictating the terms on which the Red River Colony would become part of Canada.

The rights of the Metis were somewhat fulfilled in the Manitoba Act, 1870, the constitutional enactment that created the province of Manitoba. Through a process of negotiation and compromise between Riel's provisional government and the federal cabinet, the Manitoba Act was ratified. This piece of legislation represented the first statutory recognition of Metis distinctiveness86. By virtue of s. 31, the Act conferred certain rights on the "children of the half-breed heads of families", and subsequently, on the heads of these families in Manitoba87. In addition, this section of the Act committed Canada and Manitoba to allot lands "to the extent of one million four hundred thousand acres" to Metis residents of the province.

A quantum of land was allotted under this legislative scheme, in most cases by means of "scrip" (i.e. a certificate entitling the holder to 160 acres of land in satisfaction of the extinguishment of title to that land), but the complete obligation may not have been fulfilled88. The issuance of scrip may not have extinguished Metis aboriginal rights on the basis that the federal scheme was "fraud, misrepresentation, and non-compliance with the Royal Proclamation of 1763, the Rupertsland Order and the Manitoba Act, 1870',89.

Recognition of Metis rights was a secondary consequence of the Canadian government's desire to acquire Rupertsland in 1870, and sign various treaties thereafter: administrative expediency and other pragmatic reasons have left Metis land and resource use rights

84 Frideres, above, note 49, at p. 71.

85 Miller, above, note 27, at p. 154.

86 Thomas E. Flanagan, "The History of Metis Aboriginal Rights: Politics, Principle, and Policy" (1990), 5 C.J.L.S. at p. 73.

87 Ibid., at pp. 73-7.

88 Woodward, above, note 56, at p. 57; Dumontv. AG. Can. [1988], unreported (M.J. Registry No. 327) [Man. C.A.] at p. 7.

89 Kent McNeil, "The Constitutional Rights of the Aboriginal Peoples of Canada" (1982), 4 Supreme Court Law Review 255, at p. 255.

16 largely without definition90. Although the Act is silent on the issue of Metis resource use rights, it is one of the primary sources of constitutional recognition of Metis land rights91.

Under the Manitoba Act, Manitoba entered the Dominion as a province, as Riel had wanted, rather than a territory ruled from Ottawa, as the Prime Minister John A. MacDonald and his Cabinet desired92. However, given that the size of the new province was so small, combined with the fact that the Dominion retained jurisdiction over Crown lands and natural resources in Manitoba, provincial status at this time was rendered almost meaningless93.

1.1.10 The Decline of York Fort and the North-West Rebellion of 1885

Following the surrender of the Rupertsland Charter to the Dominion of Canada in 1870, York Fort, also known as York Factory, began to lose its importance as a major depot for the Northwest region94. In the 1870's, York Factory lost its major sources of revenue; those resources realized in its capacity as headquarters for the Northern Department, as a supply depot for the Northwest, as well as in its ability to secure "free" labour from new recruits and retiring servants.

In addition, the end of major inland shipping was compounded by increased expenses such as the new requirement to pay Canadian import duties. A reduction in the non- aboriginal trade post labour force coupled with the need for a supply of "country food" and other necessary changes increased the demand for aboriginal labour. This labour was provided by the Homeguard Cree. The demand for First Nations' labour encouraged longer residency at the post, a phenomenon that witnessed a reduction in the amount of resources in close proximity to the post. As a result, the area could not support the Homeguard Cree who took up residence near the post. The result was an increased dependency on the Company for rations and greater suffering among the Cree.

90 Flanagan, above, note 86, at p. 90.

91 Woodward, above, note 56, at p. 80.

92 Miller, above, note 27, at p. 158.

93 Ibid.

94 Tough, above, note 35.

17 In the 1880's, caribou and small game species in the York Factory vicinity became increasingly scarce95. As a result, this period also witnessed a reduction in the Homeguard Cree labour force. The suffering and hardship experienced by the Homeguard Cree due to these factors required them to return to the bush or migrate out of the region to Churchill or other areas to the south. At this time, however, the major destination was Split Lake. The return to the bush and migration was encouraged by the Hudson's Bay Company since the Company could no longer incur the cost of providing the Homeguard Cree with rations96.

By the late 1880's and into the 1890's, most of the Homeguard Cree had returned to the bush. The population that remained as a surplus labour pool around the York Factory post continued to suffer because of the scarcity of resources and York Factory's inability to provide for them. The adjustment by the Homeguard Cree continued through the 1890's, and by the turn of the century, they were considered self-reliant.

In the south, within the boundaries of the newly-formed province of Manitoba, the buffalo resource was diminishing rapidly97, the Canadian Pacific Railway was nearing completion and settlers were beginning to appear in vast numbers98. These factors, combined with the estrangement of the Catholic Church from the aboriginal and Metis peoples, led Riel to attempt a recreation of the strategy that had worked so well in 1869-70. Riel's pretext was Ottawa's lack of response to his assertions that aboriginal and Metis peoples must be treated with the full dignity of British subjects and that the North-West Territories (a region that included the northern half of modern-day Manitoba) should be a self-governing province99.

95 Ibid.

96 Ibid.

97 Buffalo populations were declining for a number of reasons: the fur trade was losing its importance, the demand for buffalo robes was high, agriculture was destroying important buffalo ranges, the emergence of the repeating rifle and the American transcontinental railroad in the late 1860's made hunters depredations on the herds even more severe, and there was a concerted effort on the part of the Canadian and American governments to eliminate the bison population so as to encourage aboriginal peoples to adopt a sedentary and agricultural way of life: see Miller, above, note 27, at p. 153.

98 Dickason, above, note 3, at p. 306.

99 Ibid., at p. 307.

18 It may have been possible to argue that a vacuum of legal authority existed in Rupertsland in 1869; however, in 1885, there was little doubt that Canada was the effective government of the North-West Territories100. This time, the Dominion chose to ignore Riel's pleas, rather than to negotiate with him. In response, Riel proclaimed a provisional government and his supporters armed themselves.

Between March and May of 1885, abandoned houses and stores were plundered for food and ammunition, and brief skirmishes between the "rebel" forces and some 8000 troops, militia and North-West Mounted Police occurred101. The Rebellion's toll was fifty-three non-aboriginal peoples killed, 118 wounded, and approximately thirty-five aboriginal and Metis peoples killed102.

Eighty-one aboriginal peoples were arrested, of whom forty-four were sentenced to jail terms and eight hanged; forty-six Metis were arrested, of whom nineteen were convicted, seven conditionally discharged and one hanged (i.e. Louis Riel); and two non-aboriginal peoples were charged with "treason-felony" of whom both were acquitted, one on the grounds of insanity103.

The trials, imprisonments and executions of 1885 spoke of a new order, the character of which was revealed almost a century later by Joe Dion, a grandson of Mistahimaskwa, or "Big Bear"104:

The rebellion of 1885 ended up absolutely nothing gained by anybody... only a deep rooted feeling of distrust on both sides was the unfortunate result of the clash. Throughout the years this feeling of distrust has diminished but very little and may never be completely lived down. True, we were at fault. We broke our treaty with the whites, but only after we learned that honesty with them was as thin as the paper on which our V had been drawn for i/s.*105

100 Miller, above, note 27, at p. 180.

101 Ibid., at p. 182.

102 Dickason, above, note 3, at p. 310.

103 Ibid., at p. 311; A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba, Volume 1 (1991), at p. 66.

104 An Oji-cree, Big Bear led the largest band of Cree on the Plains (about 2 000 people) during the North-West Rebellion.

105 Cited in Hamilton and Sinclair, above, note 103, at p. 67, note 39.

19 With the exception of some of the ancestors of the present-day Mathias Colomb First Nation, none of the predecessors of the present-day MKO membership participated directly in the North-West Rebellion. Despite this fact, the Rebellion had many profound implications for northern Manitoba's aboriginal communities. These implications are explored in Section 1.2, below.

1.1.11 For As Long as the Sun Shines: The Treaties and Their Adhesions

"Although Canadians have inherited the uncertainty and the legal ambiguities surrounding "aboriginal title', they have also inherited a way tor addressing such ambiguities: treaty-making... From colonial times, and into the first half-century of Confederation, (Canada) entered into treaties with aboriginal peoples to define the respective rights of the parties to the use and enjoyment of lands traditionally occupied by aboriginal people ".106

1The provisions of these treaties must be carried out with the utmost good faith and the nicest exactness. The Indians of Canada have, owing to the manner in which they were dealt with for generations by the Hudson's Bay Company, the former rulers of these vast territories, an abiding confidence in the Government of the Queen ... This must not, at all hazards, be shaken.*107

In accordance with the principles established by the Royal Proclamation and the conditions attached to the HBC's land surrender, it was incumbent upon the new Canadian government to effect the cession of aboriginal title to Rupertsland108. In western Canada, this surrender was achieved through the signing of treaties with aboriginal peoples, and as discussed above, through the issuance of scrip to the Metis .

With respect to the Manitoba experience, the ancestors of the present-day MKO membership were signatories to four numbered treaties and their adhesions: Treaties No. 4, 5, 6, and 10, signed between 1874 and 1910. The geographical areas covered by these treaties are identified in Figure 5.

106 Indian and Northern Affairs Canada, Comprehensive Land Claims Policy (1987), at p. 5.

107 Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1991), at p. 285.

108 Cumming and Mickenberg, above, note 56, at p. 149.

109 For a discussion, see: Miller, above, note 27; Waldram, above, note 56.

20 The various numbered treaties are similar in many ways, not only in substance, but also in terms of the process of negotiation that ensued between the aboriginal inhabitants of Manitoba and government agents. A brief overview of the treaties and adhesions signed by aboriginal peoples in northern Manitoba is presented below.

TREATY 4: The Qu'Appelle Treaty (September, 1874)

Treaty 4 was signed in the Fort Qu'Appelle area of southern Saskatchewan in 1874. The MKO communities of Shoal River and Indian Birch are signatory to Treaty 4.

This treaty is unique in that for the first time trapping rights on surrendered land were specifically guaranteed to the Cree, Saulteaux and Assiniboine peoples, in addition to hunting and fishing rights110.

Under Treaty 4, hunting and trapping benefits include an annual payment in kind of $750 worth of powder, shot, ball and twine, to be distributed among all the lands of the region111.

TREATY 5: The Winnipeg Treaty (September, 1875) and its Adhesions

Treaty 5 was initially signed in 1875, and was followed by adhesions in 1908, 1909 and 1910. With the exception of the two Treaty 4 signatories identified above, as well as the Northlands First Nation (signatory to Treaty 10) and the Mathias Colomb First Nation (signatory to Treaty 6), all of the MKO communities are signatory to Treaty 5 and its adhesions.

Unlike the treaties designed to obtain federal government title to the fertile belt, Treaty 5 was not negotiated out of any recognition of agricultural potential in the region to the north of Treaties 1 and 2112. In fact, after Treaties 1 and 2 were signed, the federal government actually decided not to obtain the land surrender of other aboriginal peoples until absolutely necessary, which meant until the land and resources were required for settlement and/or economic development113.

110 The full text of The Qu'Appelle Treaty is reprinted in Morris, above, note 107, at pp. 330-5.

111 Asch, above, note 61, at p. 61.

112 Waldram, above, note 56, at pp. 39-40.

113 Ibid., at p. 31, note 30.

21 Several additional differences exist between Treaty 5 and the other treaties signed in the province. Under the numbered treaties, the aboriginal peoples of Manitoba were promised explicitly by the Crown that they would retain tracts of land for their permanent and exclusive use, as partial payment for surrendering their complete title to all other lands in the province. These reserves are known as "treaty land entitlements". Formulas are set out in each treaty for determining how much land is to be reserved for the First Nations that participated in the treaties. In Manitoba, Treaties 3, 4, 6, 9, and 10 contain a formula that guarantees the establishment of reserves on the basis of one square mile (640 acres) for each family of five. Under Treaties 1, 2, and 5, only 160 acres or in some cases 100 acres per family of five is the formula used. Given that Treaty 5 covers almost all of northern Manitoba, a region not recognized for its agricultural potential, why are the treaty land entitlements so small?

Hamilton and Sinclair114 explain that although the reserves were to be the home for treaty beneficiaries, these beneficiaries would continue to have unlimited access to traditional use areas outside the reserves for economic activities, such as hunting, fishing and trapping.

With respect to resource use rights, Treaty 5 stipulates that:

"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 hereinbefore 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 ..."115.

A clause like this is common in most of the numbered treaties. However, in this provision of Treaty 5, no guarantee of trapping rights on surrendered land is given. In fact, of all the numbered treaties relevant to Manitoba's aboriginal population, Treaties 4 and 9 are the only ones to go further and recognize trapping rights as well116.

114 Above, note 103, at p. 164. The authors contend that the importance of maintaining and protecting these rights must have been seen in this light.

115 Indian and Northern Affairs Canada, Treaty No. 5 Between Her Majesty The Queen and the Saulteaux and Swampy Cree Tribes of Indians at Beren's River and Norway House with Adhesions (1969), at pp. 5-6.

116 This characteristic of Treaties 4 and 9 is discussed briefly in Hamilton and Sinclair, above, note 103, at p. 147; Waldram, above, note 56, at p. 33.

22 The "regulations" which the "Government of the Country" may make are restricted to those measures which will conserve the fish and wildlife for the continued use by aboriginal peoples117.

In 1910, the York Factory First Nation signed an Adhesion to Treaty 5. One consequence of the signing was an alleviation of the social costs of the fur trade118. Another consequence of the "treating" was a restriction in the spatial mobility of the Homeguard Cree at York Factory.

Also in 1910, the Sayisi Dene First Nation (Tadoule Lake) signed an adhesion to Treaty 5 at Churchill, Manitoba. At the time of the signing, few Sayisi Dene could speak English, and none could read it. Many words within the Treaty were foreign to the Athapaskan language - such as rights, title, acre, latitude and longitude - and no translator witnessed the document119. In addition, John French, a former Chief of the Sayisi Dene First Nation and a signatory to the adhesion, frequently signed the Church register in syllables. It appears that Canada signed the adhesion on his behalf with an "x". In fact, three identical "x's" appear on the document for all Sayisi signatories. They were clearly made by the same hand.

Sayisi maintain they were never informed by Canada that the adhesion governed the surrender of title to traditional lands and their transfer to the Crown. A treaty containing words for which no Athapaskan equivalents exist can only be construed in the sense in which it was naturally understood by the Denesuline. In Noweaijick v. The Queen, the court held that "...treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians"120. Furthermore, "in approaching the terms of a treaty ... the honour of the Crown is always involved and no appearance of "sharp dealing" should be sanctioned"121. Whether or not the adhesion to Treaty 5 is an example of "sharp-dealing" is a question for the courts to decide. There is no doubt, however, that the honour of the Crown is involved.

117 This is purportedly the original intent of the Treaty Commissioners: see ft v. Horseman, [1990] 3 C.N.L.R. 95 at 105.

118 Tough, above, note 35.

119 A. Code and M. Code, Nu Ho Ni Yeh (1992).

120 [1983] 2 C.N.L.R. 89 at 94.

121 R. v. Taylor and Williams. [1981] 3 C.N.L.R. 114 at 235 (Ont. C.A.). Of all the numbered treaties signed on the prairies, Treaty 6 is the only one containing a provision for the maintenance of a "medicine chest" for the benefit of the aboriginal peoples126. Interpretations of this provision as well as its implications for First Nations' health care are discussed below at Section 1.2.6.

TREATY 10: (The Brochet Treaty, 1907) and its Adhesions

In 1907, the Otelnadi Dene of the Northlands First Nation (Lac Brochet) signed an adhesion to Treaty 10 at Reindeer Lake, Manitoba. Treaty 10 is the only treaty pertinent to Manitoba that recognizes hunting and fishing activities as "vocations", as opposed to "avocations". Perhaps this is because residents of remote communities in northern Manitoba were recognized as intensive harvesters, and thus their activities could not realistically be called "hobbies".

At the time the adhesion to Treaty 10 was signed, Brochet was in the Northwest Territories (NWT): Manitoba's northern boundary was not extended to the 60th parallel until 1912. Not only was the treaty signed in the NWT, (outside the boundary of the ceded territory) but the area covered by it is restricted to Saskatchewan (Figure 5).

Virtually all of the Otelnadi Dene traditional lands are outside the Treaty 10 boundary (Figure 6). At the time the adhesion was signed, Indian Agent Thomas Borthwick (possibly the only "civil servant" in Canada to enter into treaty on behalf of His Majesty), noted that the Northlands First Nation would have to be paid their annuities before they left for the Barren Grounds, "300 miles north of Lac du Brochette"127. The translator for the Otelnadi Dene, the French-speaking oblate missionary Arsene Turquetil, spent several months with the "caribou-eaters", travelling as far as their camps on Ennadai Lake128. Thus, both were aware that most of Otelnadi Dene traditional territory lay outside of the treaty boundary.

126 Treaty 6 states, "That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians": Morris, above, note 107, at p. 355.

127 Prince Albert Tribal Council [PATC], Treaty Interpretation and Historical Investigations into the Rights and Interest of Chipewyan-Denesuline Bands in the Northwest Territories (1991), at p. 4.

128 Ibid., at p. 5.

25 TREATY 6: The Fort Carlton and Fort Pitt Treaties (1876)

The Mathias Colomb First Nation is the only signatory to Treaty 6 in the MKO region. Treaty 6 had over fifteen adhesions, all to include First Nations who lived in the treaty area but who were not dealt with in the original ceremonies at Forts Carlton and Pitt. The last adhesion was signed in 1956.

Morris notes that "the treaties made at Forts Carlton and Pitt in the year 1876 were of a very important character"122. As early as 1871, the Indian Commissioner remarked that "there is a rapidly increasing population of miners and other white people ... and that a treaty with the Indians ... is essential to the peace, if not the actual retention of the country"123.

A feeling of "discontent and uneasiness"124 prevailed among the Cree and Saulteaux in the unceded territory along the Saskatchewan River for a number of reasons: in the summer of 1871, a smallpox epidemic greatly reduced the population of aboriginal peoples in the region; during the subsequent winter, many died from starvation; the buffalo herds were dimininshing rapidly; many stories about troops in the Red River area and traditional lands being sold had reached the Cree and Saulteaux peoples since the transfer of the North-West Territories to the Dominion of Canada; and in 1875, non- aboriginal peoples engaged in the construction of a telegraph line, in the survey of the Pacific Railway Line, and those belonging to the Geological Survey encountered the First Nations inhabiting the Saskatchewan River Valley. As a result, the treaty negotiations were very difficult and protracted.

The treaty negotiations ultimately turned on the question of food: once it was agreed that rations would be provided in the case of national famine, important now that the buffalo had become so scarce, the terms of the treaty were assented to by the aboriginal peoples125.

122 Above, note 107, at p. 168.

123 Mr. Simpson, Indian Commissioner, addressing the Secretary of State (November 3, 1871), cited in Morris, above, note 107, at p. 168.

124 Hon. David Mills, (then) Minister of the Interior (1876), cited in Morris, above, note 107, at p. 171.

125 Morris, above, note 107, at p. 185.

24 Of all the numbered treaties signed on the prairies, Treaty 6 is the only one containing a provision for the maintenance of a "medicine chest" for the benefit of the aboriginal peoples126. Interpretations of this provision as well as its implications for First Nations' health care are discussed below at Section 1.2.6.

TREATY 10: The Brochet Treaty (1907) and its Adhesions

126 Treaty 6 states, 'That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians": Morris, above, note 107, at p. 355.

127 Prince Albert Tribal Council [PATC], Treaty Interpretation and Historical Investigations into the Rights and Interest of Chipewyan-Denesuline Bands in the Northwest Territories (1991), at p. 4.

128 Ibid., at p. 5.

25 In addition, Borthwick did not have a map at the time the adhesion was signed, and Father Turquetil would have had some difficulty interpreting the parameters of the treaty boundary in three different languages129. Otelnadi Dene maintain that at the time of the signing, they were merely informed that their harvesting rights were guaranteed "as long as the sun shines, the river flows and that big rock sits in Reindeer Lake": the geographical limits imposed on these rights were not mentioned130. If a narrow interpretation is given to the treaty (i.e. that traditional harvesting rights can only be guaranteed within the treaty boundary), then the Otelnadi Dene would have no harvesting rights at all131.

Clearly this was not the intent of the treaty negotiators, and similar issues have been raised elsewhere and presented to the courts to resolve. For example, it was held in R. v. Bartleman132 that the right guaranteed by the Douglas treaties to hunt extends to the traditional hunting areas of the tribe, even when these areas lie outside of the tract surrendered.

1.1.12 Port Nelson and the "Bay Line": 1912-1929

Following the conclusion of the treaty-making process in northern Manitoba, Port Nelson was constructed as the port for the CN Rail Line, since grain from western Canada could be shipped from the Port to markets overseas133. Situated at the mouth of the Nelson River, the Port attracted a number of Homeguard Cree from York Factory.

The shallow water of the Nelson River estuary, combined with a strong river current, a short shipping season and unpredictable weather conditions made the port dangerous for ships at times. Several ships and other vessels sunk, broke up and scattered, and ran aground while bringing construction supplies to Port Nelson from Halifax and other destinations134. As a result of these experiences, the engineer at Port Nelson called for a revision of the original plans for the port in 1914.

129 Sask. Denesoline v. Canada and the Government of the Northwest Territories. Argument of the Plaintiffs (1991) at 56-7 (Fed. Court, Trial Division). 130 PATC, above, note 127, at p. 4.

131 Ibid., at p. 3.

132 (1984) 3 C.N.L.R. 114 (C.A.).

133 D. Malaher, Port Nelson and the Hudson Bay Railway (n.d.).

134 Ibid.

26 The proposal described a 3 000 ft extension of the existing bridge into the Nelson River estuary, and the creation of a man-made island about half a mile long to support the foot of the bridge135. The rail extension was completed in 1916, and still exists today.

Between 1912 and 1917, a series of events strongly influenced the progress of Port Nelson. These events include political pressure exerted by the media, federal election promises, the entrance of Canada into World War I in 1914, and a shortage of money for investment136. Consequently, after the summer of 1918, no work was authorized at Port Nelson.

In 1920, a Senate Committee concluded that the route to Churchill was more feasible. This finding was later confirmed by an engineer in 1927137. The Hudson Bay Rail Line was completed to Churchill and the first shipment of wheat came to the port of Churchill in 1929. Port Nelson was scavenged for equipment to assist in the construction of the port at Churchill.

Following the abandonment of Port Nelson, only Homeguard Cree trappers remained138. The majority of the Cree people residing at Port Nelson remained there until 1945, and a few families continued to reside there until the closing of York Factory in 1957.

1.1.13 The Constitution Act. 1930

In 1930, the federal government transferred jurisdiction over natural resources, health care, education and taxation, among other things, to the province of Manitoba. This was effected by the Natural Resources Transfer Agreement (hereafter referred to as the "NRTA"), and affirmed by the Legislature of the Province, by c. 30 of the statutes of 1930, and by the Parliament of Canada, by c. 29 of the statutes of Canada 1930. It was also affirmed by the Parliament of Canada by the Constitution Act, 1930, 20-21 George V (Imp.) c. 26. Subsequently, the NRTA became part of the Constitution Act, 1982 as item 16.

135 Ibid.

136 Ibid.

137 Ibid.

138 Ibid.

27 Through the NRTA, the federal government attempted to fulfil its treaty obligations to the aboriginal peoples of Manitoba139. In essence, the federal transfer of lands and natural resources was based on an understanding that the province would supply the lands needed to satisfy outstanding treaty land entitlements. In general, the Agreement was intended to modify the division of powers originally set out in the Constitution Act, 1867140.

By virtue of paragraph 13, the NRTA provides constitutional protection for aboriginal hunting rights in the province of Manitoba141. Paragraph 13 reads as follows:

"In order to secure to the Indians of the province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the province from time to time shall apply to the Indians within the boundaries thereof, provided, however that the said Indians shall have the right, which the province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access."

The general import this paragraph is to ensure "a continuing supply of game and fish for their [aboriginal peoples] support and subsistence"142. Thus, in transferring the natural resources to the provinces, Canada made efforts to ensure that aboriginal harvesting rights would be preserved once the provinces assumed ownership of the land143.

The extent of the territorial limitation of this stipulation has been an issue in many cases. The Supreme Court of Canada contemplated that the rights granted to the aboriginal peoples by the treaties were "merged and consolidated" in the 1930 Transfer

139 Moosehunter v. R, [1981] 123 D.L.R. (3d) 95 at 104.

140 R. v. Horseman, [1990] 3 C.N.L.R. 95 at 104.

141 Woodward, above, note 56, at p. 91.

142 This was articulated in Cardinal v. AG. Alta., [1974] S.C.R. 695 at 707; Frank v. R., [1978] 75 D.L.R. (3d) 481 at 484 (S.C.C.) [Alta.]. Paragraph 12 of the Alberta NRTA is identical to para. 13 of the Manitoba NRTA.

143 Woodward, above, note 56, at p. 80.

28 Agreement144. The geographical area in which aboriginal peoples can hunt for food was widely extended: the Agreement guarantees hunting rights to aboriginal peoples who enter a province to hunt, even if they are not residents of that province145. Therefore, para. 13 must be read as preserving the territorial scope of treaty rights prior to 1930146.

Aboriginal peoples have a right to hunt for food at all times of the year on unoccupied Crown lands. This right cannot be restricted by provincial legislation imposing seasonal restrictions, bag limits, licensing requirements, hunting methods, or other such considerations: the important criterion is hunting for food"147. It has been argued that hunting "for food" means that "the fish or game will be used for direct nourishment of the hunter and his family"148. The Supreme Court of Canada, in ft v. Sparrow, declared that hunting "for food" includes hunting for social and ceremonial purposes149. However, in R. v. Horseman, it was stated that the Agreement cannot be relied upon as a defense to a charge of unlawful traffic in wildlife, even if game was killed out of self- defense or in order to obtain money to buy food150.

The majority judgements of the Supreme Court of Canada in Daniels v. White151 hold that the hunting and fishing rights preserved for Indians under the Constitution Act, 1930 are exempt from restrictions imposed under provincial laws, but not from federal legislation. Thus, the province cannot arrogate to itself the right to amend, unilaterally,

144 The merger and consolidation theory was first postulated in R. v. Strongquill, (1953) 8 W.W.R. (N.S.) 247 (Sask. C.A.). See also: Cardinal v. AG. A/fa., [1974] S.C.R. 695; Frank v. ft, [1978] 1 S.C.R. 95; ft v. Sutherland, [1980] 2 S.C.R. 451 at 460; Moosehunter v. ft, [1981] 1 C.N.L.R. 61 for a discussion on the limited meaning of this theory.

145 ft v. Laprise, [1978] 4 C.N.L.B. 120.

146 Woodward, above, note 56, at p. 10.

147 ft v. Mousseau [1980] 3 C.N.L.R. 63 at 69. This passage is discussed by O'Sullivan J.A. in ft v. McKinney, [1979] 2 W.W.R. 545 at 549.

148 Woodward, above, note 56, at p. 322.

149 ft v. Sparrow, [1990] 3 C.N.L.R. 160 at 175-76.

150 Above, note 140, at 106.

151 [1968] S.C.R. 517. The reasons for judgement governed the decision in ft v. Elk, [1979] 1 W.W.R. 514.

29 para. 13 of the Agreement by giving words a particular interpretation152. However, provincial regulations regarding public safety, trespass, wastage and commerce are applicable to aboriginal peoples so long as they do not conflict with the exercise of a treaty right153.

Therefore, one effect of the NRTA was that "both the area of hunting and the way in which the hunting could be conducted was extended and removed from the jurisdiction of provincial governments"154. Although the Agreement takes away the right to hunt commercially without regulation, the nature of the right to hunt for food is substantially enlarged.

To summarize, under the treaties, the hunting rights were general (i.e. no distinction was made between domestic and commercial purposes); the treaty right included hunting for the purposes of commerce155. Treaty rights were not, however, unlimited: rather they were subject to governmental regulation. The NRTA widened the hunting territory and the means by which aboriginal peoples could hunt for food thus providing a type of quid pro quo for the reduction in the right to hunt for purposes of commerce granted by the treaties156.

Thus, when viewed in conjunction with the Agreement, treaty rights are limited to the right to harvest fish and game for food, however broad this category may be. Given that extinguishment cannot occur by a process of encroachment157, the Agreement has not repealed or extinguished hunting, fishing or trapping rights as were defined by treaty prior to 1930.

It has been argued that "it is trite law that, under the division of powers agreed upon in 1867, Canada had the exclusive power to legislate about 'Indians' while the provinces could legislate about game management ... to apply provincial programs to Indians, particularly in light of the treaties, seemed to be an impermissible extension of the provincial legislative power"158.

152 Moosehunter v. R., [1981] 1 C.N.L.R. 61 at 100.

153 R. v. Horseman, above, note 140, at 106.

154 Ibid., at 104.

155 Ibid., at 100.

156 Ibid., at 106.

157 Woodward, Native Law (1992), supplement to Chapter XIII, at p. 3.

158 R. v. Badger [1993] unreported, A.J. No. 217, at 7.

30 First Nations in Saskatchewan have made a similar declaration159. Canada has jurisdiction over "Indians and Lands Reserved for the Indians" (s. 91.24 of the Constitution Act, 1867), and an obligation to consult with aboriginal peoples when proposing to amend the terms of treaty. In other words, the treaties established a bilateral relationship between Canada and aboriginal peoples, not between the provinces and aboriginal peoples. Thus, given that "whatever happened in 1930 happened without the participation of one party to the treaty"160, namely the aboriginal signatories and their descendants, the constitutional validity of the Manitoba NRTA may be at issue in future court deliberations.

1.2 Racism, Assimilation and Alienation

'The Indians are fully aware that their old mode of life is passing away. They are not 'unconscious of their destiny'; on the contrary, they are harnessed with fears as to the future of their children and the hard present of their own lives. They are tractable, docile and willing to learn... I have every confidence in the desire and ability of the present administration ... to extend a helping hand to this helpless population ... Let us have Christianity and civilization to leaven the mass of heathenism and paganism among the Indian tribes."161

Written in 1880 by the late Alexander Morris, Lieutenant-Governor of Manitoba, the North- west Territories and the Keewatin, these words were reflected in a policy of the federal government that emerged during the treaty-making process and survived until 1985. This was a policy for the assimilation of Canada's aboriginal peoples into the dominant Euro- Canadian society. The implications of this policy for MKO First Nations is explored below.

1.2.1 Provisions of the Indian Act

The assimilation of aboriginal peoples into Canadian society was federal policy between the 1840's and 1970-71 and was reflected in law in the enfranchisement provisions of the Indian Act, s. 109-113. Canada abandoned the policy of assimilation in 1970-71, following the strong negative response to the 1969 White Paper on federal Indian policy, which proposed continuing the policy of assimilation through the abolition of aboriginal rights,

159 Touchwood - File Hills Qu'Appelle Tribal Council Resolution No. 003, June 6,1990; Federation of Saskatchewan Indian Nations Legislative Assembly Resolution No. 472, August 7, 1990.

160 R v. Badger, above, note 158, at 7.

161 Morris, above, note 107, at pp. 288-296.

31 the destruction of the reserve system and abrogation of the treaties. Aboriginal women who had lost their status by marrying non-status men applied considerable pressure on government to change this policy. The United Nations also criticized Canada for the discriminatory manner in which the enfranchisement provisions were applied to aboriginal women.

In 1981, Prime Minister Pierre Trudeau conceded in an address to the Native Indian Brotherhood that assimilation was a failed policy that would not be continued. The policy was terminated in 1985 with the repeal of ss. 109-113 of the Indian Act.

There is at present no federal policy or law which would provide for the "enfranchisement" of an entire First Nation. Similarly, there is no current federal policy or law which would provide for the "enfranchisement" of an aboriginal person.

1.2.2 Residential Schools

"When Amerindians had asked for schools during treaty negotiations, they had envisioned them as a means of preparing their children for the new way of life that lay ahead. They had in mind a partnership with whites as they worked out their own adaptations, and saw educational facilities as a right guaranteed by treaty... The whites, however, saw another purpose for schools: their use as instruments for assimilationZ162

"If these schools are to succeed, we must not have them too near the bands; in order to educate the children properly, we must separate them from their families ... if we want to civilize them, we must do that"*163.

The fight over the agricultural and buffalo lands in the south, as manifest in the North- west Rebellion of 1885, had widespread and adverse effects on aboriginal peoples living in the boreal forest. As mentioned above, most of the ancestors of the current MKO First Nation membership were not direct participants in the rebellion of 1885. However, as a consequence of the 1885 confrontations, the centralizing tendencies of the Department of Indian Affairs were increased, a process that continued until 1951164. The era of peaceful cooperation and mutual benefit that persisted from the time of contact until the late 1800's gave way to an oppressive and coercive system of "civilization" and assimilation.

162 Dickason, above, note 3, at p. 333.

163 Canada, House of Commons, Debates, 1885, at p. 1575, cited in Miller, above, note 27, at p. 196.

164 Dickason, above, note 3, at p. 319.

32 Residential schools, founded and operated by Protestant and Catholic missionaries, were the dominant institution in aboriginal communities across Canada from the 1880's until the 1960's165. During the treaty-making process, the ancestors of aboriginal peoples in northern Manitoba had asked specifically for education facilities, recognizing the need to make an economic transition and learn the art of communication, or "the talking paper"166. However, despite their wish to learn these skills, many aboriginal peoples did not welcome the lessons of the Christian religion: they wished instead to control the values that were being communicated to their children167.

Not only were aboriginal children being indoctrinated with the culture and religion of the dominant white society, they were also being taught to reject their own culture and their families168. This experiment in "social engineering" and "aggressive civilization" was reflected in the following passage from the Annual Report of the Department of Indian Affairs in 1889:

The boarding school disassociates the Indian child from the deleterious home influences to which he would otherwise be subjected. It reclaims him from the uncivilized state in which he has been brought up. It brings him into contact from day to day with all that tends to effect a change in his views and habits of life. By precept and example, he is taught to endeavour and excel in what will be most useful to him."w

The residential school system, comprised of boarding and industrial schools, was preferred over day schools, since it was believed that the removal of children from their families and communities accelerated the process of assimilation170. In 1920, attendance in residential schools was made compulsory171.

165 Geoffrey York, The Dispossessed: Life and Death in Native Canada (1990), at p. 22.

166 Dan Kennedy [Ochankugahe], in James R. Stevens (ed.), Recollections of an Assiniboine Chief (1972), at pp. 54-5, cited in Miller, above, note 27, at p. 196.

167 Hamilton and Sinclair, above, note 103, at p. 67.

168 Ibid., at p. 68.

169 Canada, Sessional Papers, No. 12 (1890) at p. xi, cited in Miller, above, note 27, at p. 196.

170 Dickason, above, note 3, at p. 333.

171 Ibid., at p. 335.

33 In the same year, the deputy minister of the Department of Indian Affairs remarked:

"... after being in close contact with civilization, it is enervating to the individual or to a band to continue in a state of tutelage, when he or they are able to take their position as British citizens or Canadian citizens, to support themselves, and stand alone. That has been the whole purpose of Indian education and advancement since the earliest times... Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question and no Indian department "172

Aboriginal peoples were never allowed to contribute to the content of curricula, or to exercise any control over schools173. Despite the efforts of educators, many aboriginal students utilized the school system to obtain "the best that the white man had to teach", and were "endeavouring to work out their own plans and their own self- determination"174.

In fact, it was from the ranks of former residential school students that many of the chiefs, councillors and other leaders of the MKO communities and leaders of other aboriginal political movements emerged in the 20th century.

The newly dominant white society's growing secularization and separation of church and state diminished the effectiveness of the residential school system, and in the 1960's, the system was dismantled175.

1.2.3 Prohibition of Religious Expression and Implementation of the Pass System

The conflict between aboriginal peoples and government authorities over educational policy in Manitoba was amplified when the federal government criminalized the practice of traditional prairie religious ceremonies. Between 1884 and 1914, amendments to the Indian Act forbade dancing of every description and made it a criminal offence for aboriginal peoples to participate in annual festivals and wear traditional costume without government consent 6.

172 Cited in Miller, above, note 27, at p. 207.

173 Dickason, above, note 3, at p. 336.

174 Jean Barman, Yvonne Hebert and Con McCaskill (eds.) Indian Education in Canada, Volume I (1986), at p. 7, cited in Dickason, above, note 3, at p. 336.

175 Dickason, above, note 3, at p. 333.

176 Hamilton and Sinclair, above, note 103, at p. 68.

34 These prohibitions were eventually eliminated in the Indian Act amendments of 1951177.

The pass system was instituted in part to control the movements of aboriginal peoples during the tense summer of 1885. Under the pass system, aboriginal and Metis peoples were prohibited from travelling off their reserves without written authorization of an Indian agent. This system was largely intended to discourage parental visits to residential schools and thwart the movement of aboriginal and Metis politicians among the reserves178.

The prohibition of religious expression and the pass system were difficult if not impossible to enforce: dances continued in hiding, and police prudence and aboriginal defiance prevented the successful application of the pass system179.

Even though both were recognized as illegal, such measures were justified on the grounds that aboriginal peoples "required protection from rapacious members of the newly dominant society."180

In northern Manitoba, these repressions were accepted without violence. MKO First Nations viewed protection as interference, and have peacefully resisted the paternalistic and authoritarian policies of directed cultural change since their inception. Cultural values, ceremonial practices, traditional ecological knowledge and resource management systems have survived the experiments in social engineering.

1.2.4 The Period of Relocation and Re-establishment: 1956-1973

Following the closure of York Factory in 1957 (mentioned in Section 1.1.12, above), ancestors of the present-day people of Shamattawa, York Landing and Fox Lake were moved inland, some forcibly, others voluntarily. Initiated by the Department of Indian Affairs, these relocations were precipitated in part by the loss of one source of income for the Cree, namely the fur trade. All of the cabins that were left behind were burned by the Department, thereby reducing the possibility that former York Factory residents would return to the site.

177 F. Laurie Barron, "A Summary of Federal Indian Policy in the Canadian West, 1867- 1984", Native Studies Review (1984), 1(1): 28-39, cited in Hamilton and Sinclair, above, note 103, at p. 68.

178 S.A. Carter, "Controlling Indian Movement: The Pass System", NeWest Review (1985) May: 8-9, cited in Miller, above, note 27, at p. 192.

179 Dickason, above, note 3, at p. 315; Miller, above, note 27, at p. 192.

180 Miller, above, note 27, at p. 191.

35 The seasonal patterns of land use and occupancy established by the people who resided in the vicinity of the post are now only traced through living memory.

The experiences of Sayisi Dene have recently been described to the Royal Commission, and thus they are related only briefly here. In 1956, the federal Department of Indian Affairs initiated the relocation of the Sayisi Dene to "Camp 10" at Churchill. The rationale for Sayisi relocation was based in part on claims by the Canadian Wildlife Service (INAC) of overhunting and wastage of caribou181. These allegations were made at a time when caribou herds were erroneously thought to be in terminal decline182.

Sayisi Dene suffered greatly from the abrupt relocation of a traditional Denesuline community to the burgeoning rail and port townsite of Churchill. Churchill was approximately 150 miles southeast of a major caribou crossing at Little Duck Lake. It was even further from Denesuline territory in the forests and Barren Grounds of the southern Keewatin.

At Camp 10, the Sayisi Dene could not provide themselves with meat, fish, fur and skins: Churchill did not have the resources familiar to the Barren Grounds. Camp 10 was described as "a dense cluster of 45 small, poorly insulated houses ... built right next to Churchill's cemetery on a high, bleak rock ridge near Hudson Bay ... exposed to the elements, and devoid of any natural advantages. Water came from a single tap. Garbage and sewage were dumped near the houses."183

In 1967, the Department of Indian Affairs built Dene Village at Churchill, which was described as "an economy model of suburbia"184. Even with the construction of Dene Village, almost one-half of the Sayisi Dene perished at Churchill due to illness, malnutrition, alcohol, freezing, "hit-and-run" accidents and murders. Following these events, Sayisi Dene abandoned the Village in stages and returned to their former territory185.

181 Robert Ruttan, Biologist and Researcher (formerly with the Canadian Wildlife Service and the Dene Cultural Institute), personal communication, September 1991.

182 Code and Code, above, note 119.

183 F. Bruemmer, "Life After Degradation", Winnipeg Free Press, Weekend Magazine (1977), 27(2) at p. 5.

184 Ibid.

185 Ernie Bussidor, Councillor, Sayisi Dene First Nation, personal communication, January 1993.

36 Between 1969 and 1971, 16 Sayisi established themselves at North Knife Lake and 34 Sayisi settled at South Knife Lake. Both lakes are approximately 100 miles west of Churchill. As at the ill-fated HBC post at Caribou Lake, both the North Knife and South Knife sites were largely devoid of caribou. In May, 1973, the Sayisi commenced an airlift to the present community site at Tadoule Lake, which is on a caribou migration route. By 1977, virtually all Sayisi Dene had moved from Churchill to Tadoule Lake186.

Within the MKO region, the communities of Moose Lake, Chemawawin, Grand Rapids and South Indian Lake also share compelling stories. Unlike the experiences recounted above, these communities were relocated to allow for flooding behind hydroelectric dams. Too often in the north, economic feasibility is assessed, communities are relocated, development is launched and the environment is altered drastically. In the words of former Chief Esau Turner of the Swampy Cree Tribal Council:

"Economic activity has come into our area which has changed our way of life, but has rarely given us a substitute in terms of jobs and ownership of that economic activity. Lost, too, in the changes were many traditions and values that kept our culture strong and our communities united. The taking of land, the imposition of another economic system and replacement of our social systems with systems of law and government from outside meant the decline in local customs, local responsibility and local way of life. The changes to the economy and the systems that have developed around native people have taught dependency rather than independence.

1.2.5 The "Sixties Scoop"

The Indians were on this land and the white people came from across the ocean. They came in their boats, with their Bible, with their priests and missionaries. And they wanted to translate the Bible into Cree and they didn't know an equivalent word for 'sin'... The Indians didn't have a word for sin ... Our children are our Mure, and when you shatter those lives, the lives of the children, then you shatter our Mure ... That's s/'n."188

186 Bruemmer, above, note 183, at p. 6.

187 Cited in Hamilton and Sinclair, above, note 103, at p. 83.

188 Laurence Boucher, a Metis from northern Alberta recalling a story told at the time of European contact, cited in York, above, note 165, at p. 227.

37 Relocation efforts not only focused on entire communities, but also on individual families: between the mid-1960's and the early 1980's, an estimated three thousand aboriginal children were removed from their homes and adopted by families outside the province189. In most cases, the adoptive parents were white and urban, and as a result, the aboriginal identity of adopted children and disappeared and they became a "lost generation". What child welfare agencies labelled "protection", aboriginal families called "kidnapping"190 and "cultural genocide"191.

By removing children from their families, communities and cultures and placing them in non-aboriginal society, the child welfare system was doing essentially the same thing that the residential schools had done. 'The Sixties Scoop was not coincidental; it was a consequence of fewer Indian children being sent to residential schools and of the child welfare system emerging as the new method of colonization."192 Furthermore, "with the closing of the residential schools, rather than providing the services to support responsible parenting, society found it easier and cheaper to remove the children from their homes and apparently fill the market demand for children in Eastern Canada and the United States."193

Aboriginal communities had virtually no control over the "sixties scoop": decisions about the future of aboriginal children were made by non-aboriginal social workers and urban- based bureaucrats. This occurred until 1976, when the first of six First Nations-controlled child welfare agencies emerged in Manitoba194. The child welfare system as it exists today in MKO communities is identified in Section 2.3.2.1, below.

189 York, above, note 165, at p. 206.

190 Hamilton and Sinclair, above, note 103, at p. 519.

191 York, above, note 165, at p. 214.

192 Patrick Johnston, Native Children and the Child Welfare System (1983), at p. 24, cited in Hamilton and Sinclair, above, note 103, at p. 520.

193 York, above, note 165, at p. 215.

194 Ibid., at p. 207.

38 1.2.6 Health Care

"A permanent medical officer at this point [1912] would be a great benefit to the Indians: nothing has a more civilizing effect upon them than a display of the white man's skill in healing, nothing convinces them more readily of the white man's interest in them."195

For much of the history of aboriginal health care in Canada, health services were seen as an integral part of the policy of total assimilation and elevation of aboriginal peoples from wards of the state to full citizens196. The emphasis was on medical relief, rather than the provision of comprehensive health care services. For example, the epidemics (i.e. smallpox and tuberculosis) that raged through Indian reserves were seen as a threat to the health of contiguous non-aboriginal communities. The limited public assistance that was available to aboriginal peoples was "parsimonious, stigmatized and deliberately unattractive to keep the public 'burden' from growing."197

In the series of treaties signed between Canada and First Nations, only one contains specific provisions relating to health care: Treaty No. 6, signed between Canada and the Cree of central Alberta and Saskatchewan contains "medicine chest" and "pestilence" clauses 198. As mentioned above, the Mathias Colomb First Nation (Pukatawagan) is the only signatory to Treaty 6 within the MKO region.

Similarly, the Northlands First Nation (signatory to Treaty 10) discussed their interest in receiving medical care during the treaty negotiations199, and as a result of recent case law, oral promises made during this time must be "relied upon by both parties in determining the treaty's effect."2®8 Within the confines of Treaty 5, to which most MKO First Nations are signatory, health care services were largely provided by missionaries.

195 Canada, Sessional Papers, No. 27 (1913), at p. 130, cited in T. Kue Young, "Indian Health Services in Canada: A Sociohistorical Perspective", Soc. Sei. Med. 18(8), at p. 260.

196 Young, ibid., at p. 260.

197 Ibid., at pp. 260-62.

198 Ibid., at p. 257.

199 Ibid., at p. 258.

200 R. v. Taylor and Williams, above, note 121, at 120. In this case, the Crown was reprimanded for bringing dishonour to the Crown by pursuing a conviction against the oral terms of a treaty.

39 1.2.6 Health Care

In the series of treaties signed between Canada and First Nations, only one contains specific clauses relating to health care: Treaty 6. Signed between Canada and the Cree of central Alberta and Saskatchewan (including the Mathias Colomb Cree), Treaty 6 contains the "medicine chest" and "pestilence" clauses 198.

195 Canada, Sessional Papers, No. 27 (1913), at p. 130, cited in T. Kue Young, "Indian Health Services in Canada: A Sociohistorical Perspective", Soc. Sei. Med. 18(8), at p. 260.

196 Young, ibid., at p. 260.

197 Ibid., at pp. 260-62.

198 Ibid., at p. 257.

199 Ibid., at p. 258.

200 R. v. Taylor and Williams, above, note 121, at 120. In this case, the Crown was reprimanded for bringing dishonour to the Crown by pursuing a conviction against the oral terms of a treaty.

39 Perhaps this explains why these First Nations did not appeal to the treaty commissioners for guarantees that health care services would be provided on a permanent basis by governments. However, many First Nations were given assurances that they could rely on the benevolence of the Crown in times of sickness. In any event, by virtue of the Indian Act and the Constitution Act, 1867, the federal government is ultimately responsible for the health of First Nations' communities.

During the 19th century, individual physicians were attached to various Indian agents, and in some cases, the Indian agents themselves were medically qualified201. In 1874, the passage of the Indian Act made it clear that aboriginal health care fell under the purview of the federal government. Six years later, the Department of Indian Affairs was established to administer the provisions of the Indian Act. In the early 1920's, a federal Health Department was created (later reorganized into the National Health and Welfare Department), but aboriginal health care remained under the control of the Department of Indian Affairs. During the 1920's and 1930's, the provision of adequate health care services to aboriginal communities was hindered by a chronic lack of funds from the parliamentary appropriations for Indian Affairs202.

In 1927, a formal Medical Services Branch was created within the Department of Indian Affairs. Medical officers within the Department were subject to supervision by Indian agents. In 1945, aboriginal health services were transferred to the new National Health and Welfare Department. However, it wasn't until 1962 that the Indian and Northern Health Services Directorate disappeared as a separate entity. At this time, a new Medical Services Directorate was created and was given the task of providing direct services to various categories of Canadians whose health care fell outside of provincial jurisdiction203.

In 1964, a "Trade-Off Agreement" between the federal and provincial governments delineated fiscal responsibility and health service delivery to communities in northern Manitoba204. It was agreed that Provincial Northern Health Services provide clinical and public health services in the following areas: Moose Lake, Grand Rapids and Cedar Lake to the southeast of The Pas; in the Bay Line communities of Cormorant, Wabowden,

201 Young, above, note 195, at p. 258.

202 Ibid., at p. 259.

203 Ibid., at p. 260.

204 Memorandum of Agreement Between the Department of National Health and Welfare, as represented by the Medical Services Directorate, and the Department of Health of the Province of Manitoba, as represented by the Division of Health Services (April 1, 1964).

40 Thicket Portage, Pikwitonei, llford, Gillam, Bird, including all section houses on the Rail Line as far north as Churchill; the Local Government District of Churchill and the Local Government District of Lynn Lake. Medical Services of the Department of National Health and Welfare agreed to provide clinical and public health services in the following areas: Nelson House, Pukatawagan, South Indian Lake, Brochet, Split Lake, York Landing, Shamattawa, The Pas Reserve, Norway House, Cross Lake, Oxford House, God's Lake, Island Lake, Ste. Theresa Point and Granville Lake. It was further agreed that the individual services undertake fiscal responsibility for transport of staff and patients for whom they are responsible, provide professional and ancillary personnel to the above areas, and be responsible for their own drugs and medical supplies, although Medical Services agreed to supply drugs to Provincial Northern Health Services at cost plus 10%.

With respect to specific health care services, the 1964 Memorandum of Agreement has created hardship for several MKO First Nations: for example, the federal government has no mandate for Mental Health services and the provincial government continues to deny responsibility to aboriginal peoples for these services. On an interim basis, however, Canada accepted the burden of administering general aboriginal health care services on "moral grounds" since most provinces were ill-equipped to handle the complex needs of remote northern communities.

Between the early 1960's and 1971, universal hospital and medical care was introduced in Canada. However, this development did not have much impact on the operations of Medical Services205. Until 1979, the federal government denied responsibility for health services to First Nations' peoples and argued that the division of powers made it a provincial obligation.

In the 1979 Indian Health Policy206, the federal government recognized its legal and traditional responsibilities to First Nations and sought to promote the ability of aboriginal communities to pursue their self-government aspirations within the framework of Canadian institutions.

The policy identifies three pillars upon which this objective could be realized. The first relates to the removal of the conditions of poverty that prevent aboriginal peoples from achieving higher levels of health. The second is the encouragement of aboriginal "involvement in the planning, budgeting and delivery of health progress", and the third is the encouragement of provincial involvement in the delivery of health care services.

205 Young, above, note 195, at p. 260.

206 Department of National Health and Welfare, Statement on Indian Health Policy (Communique) 19 September, 1979.

41 The federal government's commitment to implement aboriginal self-governance of health care translated into an offer of administration delegation only. Decisions on what health programs must be offered, what health standards are to apply, and what resources are available are all questions that continue to be answered by Ottawa. The contemporary concerns and activities of MKO First Nations in the area of health care are presented in Section 2.3.2.2, below.

1.2.7 The Administration of Justice

The failure to bridge the immense gulf that separates aboriginal from other Canadian cultures is not only evident in the child welfare system, but also in the justice system. Conducted to address the grievances of Manitoba's aboriginal peoples with respect to the justice system, the Report of the Aboriginal Justice Inquiry of Manitoba concluded that:

"The justice system has failed Manitoba's aboriginal peoples on a massive scale ... It has been insensitive and inaccessible, and has arrested and imprisoned aboriginal people in grossly disproportionate numbers.*07

"The inequality exists both in the services the system provides and the impact it has on their communities. It is foolish and naive for anyone to insist that the administration of justice in Manitoba provides a uniform standard of justice to all people in this province... The laws which the courts apply are alien to aboriginal people, the adversarial approach employed by the courts does not reflect aboriginal values... [and] the court system appears to view aboriginal people and their communities with a mixture of disdain and disregard.*06

Prior to the entry of Manitoba into Confederation in 1870, the resolution of disputes or problems between aboriginal peoples was accomplished by one or more of the traditional chief, elders, or the family of the victim and offender. In a discussion paper prepared for the Assembly of Manitoba Chiefs (AMC), it was argued that:

207 Hamilton and Sinclair, above, note 103, at p. 1.

208 Ibid., at p. 249.

42 "If again given the opportunity, these influences, both in remote communities and in urban centres, can be of immense assistance in controlling and deterring anti- social behaviour.*09

Proof that these influences are effective is documented at length in Ross's recent work, Dancing With a Ghost: Exploring Indian Reality2™. Current proposals submitted by Manitoba First Nations to regain a sense of local control over the administration of justice are identified in Section 2.3.1, below.

1.2.8 Addictions

"Gasoline is the lifeblood... of any northern reserve. Without it, the Cree cannot run their skidoos or their motorboats. But gasoline is also the deadliest poison... Children and teenagers sniff it to gain a quick escape... a few minutes of euphoria in a land of poverty and misery.

Solvent abuse is a chronic, progressive and ultimately fatal disease if left untreated. Highly addictive, gasoline sniffing inflicts permanent damage on the nervous system and brain, impairs the cognitive abilities that would normally permit children to learn, reduces inhibitions, helps to trigger violence, and produces feelings of paranoia, isolation and indifference toward oneself and others212.

Epidemics of solvent abuse were first noticed in the aboriginal communities of northern Manitoba in the early 1970's213. In 1986, a detailed study commissioned by MKO found that 70% of all aboriginal children in northern Manitoba had sniffed gasoline214.

209 (former) Justice Alvin Hamilton, Aboriginal Courts Discussion Paper (August 16, 1993), at p. 3.

210 Above, note 13.

211 York, above, note 165, at p. 8. Gasoline is not the only substance that is inhaled: the same intoxicating effects are produced by kerosene, lighter fluid, wood filler, typewriter correction fluid, nail polish remover, glue and felt-tipped markers.

212 York, above, note 165, at p. 9.

213 Ibid., at p. 10.

214 Bob Moore Native Consultants, A Feasibility Study for Inpatient Therapeutic Care for the Northern Manitoba Native Child Engaged in the Abuse of Volatile Chemical Substances (1986).

43 In medical terminology, solvent abuse is presently considered to be endemic in northern Manitoba215.

"In almost every case, there is one underlying factor, the young addicts are poverty-stricken members of a community that has been overwhelmed by a more powerful outside culture. They are victims of cultural invasion or dislocation. The economic influence of the outsiders ... has surrounded and besieged the indigenous culture, destroying the traditional economy and social harmony... They are trapped between the vision of a wealthy urban culture and the reality of an isolated community with a high unemployment rafe."216

The main government program designed to help inhalant addicts in aboriginal communities is the federal government's Native Alcohol and Drug Abuse Program (NADAP). NADAP is grossly underfunded, and as a result, there is a serious shortage of trained solvent-abuse counsellors at reserves across Canada217. Part of the reason that NADAP doesn't receive adequate funding is revealed in the following passage:

"Hidden in remote northern reserves, far from the public eye, gasoline addicts are easy to ignore. There are no high-profile charity organizations fighting on their behalf

Dr. Luis Fornazzari, a neurologist at the Addiction Research Foundation in Toronto adds:

"It's a minority problem. You don't get votes from solvent abusers. No famous actors die from solvent abuse.™9

As part of the NADAP program, Canadian health experts have attempted to rehabilitate solvent abusers by sending them to hospitals for detoxification, and by enroling them in alcohol treatment programs. These treatment programs have proven inadequate for chronic solvent abusers. Long-term treatment and specialized therapies that emphasize non-medical solutions are required.

215 York, above, note 165, at p. 16.

216 Ibid.

217 Ibid., at p. 14.

218 Ibid.

219 Cited in York, ibid.

44 In 1987, MKO proposed the construction of a treatment centre at the Cross Lake reserve to provide specialized therapy for young inhalant abusers220. The centre would provide several months of treatment and counselling for each addict. During the first month in the treatment centre, high levels of inhalants would still be present in the systems of young addicts, so counselling would not be effective. Instead, they would receive good nutrition and be encouraged to participate in recreational programs during this period to build strength and avoid boredom. After the first month, they would begin talking to counsellors, and attending classes to help them develop a sense of cultural pride and identity. Medical staff would monitor their condition, but the emphasis would be on non- medical approaches221.

Five years have passed since the Cross Lake proposal was submitted to the federal Health and Welfare Department. No action has been taken, partly because of a shortage of federal funds, and partly because of the absence of any federal policy on solvent abuse. Anecdotal evidence of escalating inhalant abuse in several MKO communities indicates an urgent and ongoing need for immediate action. Current initiatives and recommendations for future action are presented in Section 2.3.2.3.

1.3 Developing the Northern "Frontier": 1930-1980

When the land is productive and healthy, Aboriginal people prefer to remain in their homelands and in their traditional resource areas. When the land is opened up through extensive road development, logged, sprayed with herbicides and flooded by hydro dams, the productivity of the land is reduced and people must move away as the land can no longer sustain them.

When we look to the fact that Winnipeg's Aboriginal population is increasing faster than any other ethnic group and we look North to the continued large scale developments we see at least a partial link between these two circumstances. Continued expansion in the opening up of lands new used by Manitoba's Aboriginal people - its indigenous people - will create a movement of people from their homelands to the cities. These people am also environmental refugees.

This should surprise no one. Canada's first environmental refugees were indigenous peoples...

220 C.J. MacLeod, Cross Lake Native Youth Medicine Lodge, Proposal for the Development of a Solvent-Abuse Treatment Program in Cross Lake Manitoba (1987).

221 York, above, note 165, at p. 15.

45 For example, the vast herds of bison were slaughtered by the millions by the government and settlers desiring the plains tor agriculture, at least in part to reduce the independence of Indian people and force their relocation onto reserves. Loss of culture, poverty and malnutrition resulted.222

Northern Manitoba served European-Canadians as the gateway to the wealth of Rupertsland between 1684 and 1870. The Saskatchewan, Churchill, Nelson and Hayes Rivers were the highways of commerce for the Hudson's Bay Company, the Northwest Company and the First Nations' peoples of the region. York Factory was the primary point for the transfer of furs to Europe and trade goods to the First Nations' trappers and, later, as a supply point for the Selkirk colonists of the Red River.

Improved trail, and later rail, connections from Upper Canada to the Red River, combined with the slow but steady decline of the fur trade as the primary economic activity within Rupertsland, witnessed the abandonment of northern resources to the First Nations' peoples and the Metis colonists who remained. As a means of providing for the rapid agriculturalization and settlement of "Indian Territory" by immigrants and migrant Canadians, the treaty-making process that advanced steadily across the southern prairies would likely have passed by northern Manitoba for many more decades were it not for dreams of the Hudson Bay Rail Line223.

Even in 1880, when charters were issued by Canada to construct a rail line through northern Manitoba to Hudson Bay, the purpose was not to reap the riches of the boreal forest and the Canadian Shield, but to transport grain from the prairie provinces.

However, in 1926, when construction of the Bay Line recommenced224, the Hudson Bay Mining and Smelting Company was able to complete its plans to develop its ore discovery in Manitoba's northwest. Designed to take copper and zinc from Flin Flon to The Pas, the rail system was completed in 1928. Five years later, the first shipment of grain went through the Port of Churchill.

222 (then) Chief Robert Wavey, Fox Lake First Nation, MKO Position Paper on Sustainable Forestry (1991).

223 The territory ceded in the original 1875 Treaty No. 5 included a narrow finger of land along the Nelson River to the proposed Bay Line terminus at Gillam. The adhesions to Treaty 5 were not completed until 35 years later, in 1910, at Churchill.

224 Construction of the Hudson Bay Rail Line was suspended by the government of Canada during the First World War.

46 The Hudson Bay Rail Line and the major resource developments that quickly followed ushered in the end of an era spanning several thousand years. First Nations' peoples of northern Manitoba were the primary participants in all resource harvesting and transportation activities within First Nations' traditional territory.

Major resource developments in northern Manitoba have had significant social, economic and environmental impacts on First Nations' communities, including the development of treaties and more recent organizational structures. Mining developments and related hydroelectric projects have resulted in widespread flooding, relocation of aboriginal communities, elevated contaminant levels in fish and drinking water, loss of traditional livelihoods, imposition of wage economies and increased access by non-aboriginal persons to traditional hunting and fishing areas. Forestry development has had similar, and in some areas, more widespread effects.

None of these projects has ever been subjected to a comprehensive environmental assessment, and in some cases, operations continued until recent years without the imposition of any enforceable limits on the discharge of waste and contaminants. All of these projects proceeded without consideration of the First Nations' resource harvesters who were present in the project areas. In addition, no specific mitigation or compensation programs have ever been put in place to address First Nations' concerns.

In contrast with the central First Nations' role in the fur trade and the related transport of goods, the marginalization of First Nations' communities, values and livelihoods has been a persistent characteristic of all the major resource developments that have taken place in northern Manitoba. Combined with the effects of the official federal policies of cultural assimilation in the period 1870-1981, the impacts of resource developments between 1925 and 1980 have amounted to an official federal and provincial strategy of forced social and economic assimilation.

1.3.1 Industrializing the North: Mining and Hydroelectric Developments

For the forty years between 1925 and 1965, the industrialization of the MKO region was driven by large-scale mining developments linked to hydroelectric projects. These first combined developments, which later became the major industrial and service centres in the MKO region, were either developed entirely by mining companies, or were cost- shared with provincial Crown Corporations.

The first mining and hydroelectric developments in the MKO region (i.e. the Lynn Lake and Sherridon mines) were established within the traditional territories of the Mathias Colomb and Barrenlands First Nations, whose main communities at the time were at Pukatawagan and Highrock on the Churchill River and at Brochet on Reindeer Lake in northwestern Manitoba.

47 Ironically, the initial ore deposits of significant commercial value were brought to the attention of prospectors by MKO First Nations' members225.

In 1915, Tom Creighton was credited with the "discovery" of the copper-zinc ore body which would eventually be developed at Flin Flon by the Hudson's Bay Mining and Smelting Company (HBMS) between 1926-1929. The HBMS complex at Flin Flon became one of the largest combined mining, smelting and hydropower complexes in the world226.

Pukatawagan (Mathias Colomb First Nation) trapper David Collins pointed out the outcrop containing the copper-zinc ore to two prospectors working in the region227. Prospector Tom Creighton became wealthy and is still honoured today in the town of Flin Flon and in the neighbouring town of Creighton, Saskatchewan. Trapper David Collins was rewarded with a bag of tea, a bag of flour and a bag of sugar and his tiny gravesite lies in the bush, nearly buried under a new gravel roadbed, just south of Flin Flon228. Neither David Collins, his family, nor his community has ever benefitted from his discovery.

Today, the HBMS Flin Flon complex also produces gold, silver and cadmium as by- products of the smelting process229. Several tonnes of lead and arsenic and smaller amounts of cadmium are emitted from the smelter stack into the surrounding environment every day230. Cadmium contamination has reached such high levels in the surrounding environment that the Manitoba government has recommended that no organ meat of big game species such as moose and woodland caribou be eaten. Organ meat is considered a delicacy by First Nations' peoples and is an important source of vitamins in a traditional northern diet.

225 Pascali Bighetty, (then) Chief, Mathias Colomb First Nation, personal communication, 1990.

226 Alastair Walker, "Hudson Bay Mining and Smelting in Northern Manitoba, People and Land in Northern Manitoba (1992) at p. 146; Manitoba Department of Energy and Mines, Mining in Manitoba (1987), at p. 29.

227 Pascali Bighetty, (then) Chief of Mathias Colomb First Nations, personal communication, 1991; Manitoba Department of Energy and Mines, ibid., at p. 3.

228 Michael Anderson, Research Director, Natural Resources Secretariat, MKO, personal observation, 1991.

229 Walker, above, note 226.

230 Wayne Fraser, Senior Engineer, HBMS, personal communication, 1991.

48 In order to provide power for the Flin Ron complex, the Churchill River Power Company (owned today by HBMS), built the Island Falls hydroelectric project at Sandy Bay, Saskatchewan on the Churchill River in 1927, followed by the Whitesand Dam control structure on the Reindeer River in 1938231.

Both of these hydroelectric projects have had significant adverse effects on lands, fisheries and wildlife resources. No compensation for the project impacts has ever been received by the affected MKO First Nations from HBMS or government. In addition, the violations of the Indian Act (i.e. the flooding and trespass of Indian reserve lands) that occurred have never been addressed232. Even though HBMS generated more than $2 billion in revenue in the 1982-87 period alone, the project impacts and violations of federal law continue, forcing the Mathias Colomb and Barrenlands First Nations into a protracted court battle to seek compensation233.

In the 1920's, a Mathias Colomb First Nation trapper, Mancien Charlette, provided ore samples to prospectors in Mathias Colomb First Nation traditional territory, a gesture that induced additional exploration in the Kississing Lake area. In 1929, Sherritt-Gordon Mines built a copper-zinc mine and townsite within the confines of an aboriginal community.

Later, Mathias Colomb trappers provided additional ore samples which led to the development of the Sherritt-Gordon mine at Lynn Lake. By the early 1950's, the Sherridon ore body was depleted and the Sherridon townsite was dismantled and moved to Lynn Lake. Several million metric tonnes of mine tailings remain at Sherridon, and continue to adversely impact Kississing Lake and the fish and wildlife populations it sustains.

231 MKO, Submission to Saskatchewan Cabinet of the Mathias Colomb and Barrenlands First Nations: Churchill River - Reindeer Lake (1991).

232 The Department of Indian and Northern Affairs Canada has acknowledged that some 660 acres of the Barrenlands First Nation reserve at Brochet has been flooded by the Whitesand dam since 1938. Section 35(1) Indian Act states that reserve lands required to be taken for public purposes (such as dams built by Crown Corporations) may be alienated only with the consent of the Governor General in Council. The Whitesand Dam was clearly a private industrial development and so would require the sale and surrender of the flooded area. Surrenders of flooded reserve lands must be approved by the Barrenlands First Nation. The HBMS dams were forcibly acquired by SaskPower in 1981, when the federal and provincial 50-year licences expired. Therefore, the present legal action by the Barrenlands and Mathias Colomb First Nations involves SaskPower.

233 Walker, above, note 226, at 147; Bighetty v. SaskPower, Manitoba and Canada, Argument of the Plaintiffs (1993), File No. CI-92-01-65290 (Manitoba Q.B.).

49 It has been estimated that an expenditure of least $1 million will be required to stabilize the tailings234.

In 1952 and 1958, Sherritt-Gordon developed hydroelectric projects on Laurie River to power its operations in northwest Manitoba. Similar to the situation at Island Falls and Reindeer Lake, the Laurie River projects adversely affected wildlife populations and damaged an export-grade commercial fishery. Aboriginal harvesters in the area have never been compensated.

Also in the 1950's, in the traditional territory of the Nelson House First Nation, the International Nickel Company (INCO) was developing an ore body on the Burntwood River, at the present site of Thompson. In 1958, the Thompson townsite and the INCO mining and smelting operation were firmly established, as was the Kelsey generating station on the nearby Nelson River. The Kelsey hydroelectric project, with an initial 160 MW of power, was placed into service in 1960-61. Cost-shared by INCO, Kelsey was the first northern project completed by Manitoba Hydro.

The sudden influx of several thousand construction and mining workers created significant competition for big game species in the area surrounding Thompson, an area of productive fish and wildlife habitat. As with all previous northern projects, no compensation was, or has ever been, provided to the Nelson House First Nation membership.

Even though the Nelson River had been a major transportation corridor and a major fishing and hunting area since the earliest days of the fur trade, no discussions with the Cross Lake and Split Lake First Nations directly affected by Kelsey took place at that time. The construction of Kelsey created significant transportation problems, changed the formation of ice downstream and blocked the migration of sturgeon.

The last major development in this period of mining-based industrialization was triggered by Sherritt-Gordon's discovery of a low-grade copper-zinc deposit at Ruttan Lake. The community of Leaf Rapids and the nearby Ruttan Lake milling and mine site were developed in 1971-72, and in 1973, open pit operations commenced.

Situated within the traditional territory of the Nelson House First Nation, the Ruttan mine has severely impacted fish and wildlife resources. Nelson House First Nation members recall the public information meetings that were held in the growing centre of Leaf Rapids after initial construction of the Leaf Rapids-Ruttan facilities had begun. The minesite is located at the former site of the main trapping cabins of Nelson House trapper Joseph Linklater.

234 AI Beck, Environmental Management Report, Manitoba Department of the Environment (1993). The vast tailings impoundment, holding some 80 million metric tonnes of highly acidic waste, lies in what was Ruttan Lake and the location of former prime trapping and fishing grounds. As in all the previous developments of this period, neither compensation of any kind, nor alternative economic benefits have been enjoyed by those directly impacted, their families, or communities.

1.3.2 Forestry Development

In 1966, as part of the pre-election campaign of Conservative Premier Duff Roblin, an announcement to construct a $100 million integrated forestry complex at The Pas was made. Approximately 1 million cm3 of saw and pulp logs were to be harvested annually from a cutting area encompassing almost 105 000 km2 of northern Manitoba. The plans of Churchill Forest industries (CFI) - and the financial support of the Manitoba government - were part of a "Northern Vision" espoused by the government of Manitoba.

Virtually all of the CFI cutting area was within the MKO region. Even though many MKO First Nations were to be directly affected by these developments, no consultation with First Nations took place prior to the announcement. The involvement of MKO First Nations' members did not factor into a "Northern Vision" conceived and implemented by a southern government who viewed the northern forests as an undeveloped wilderness. MKO First Nations' members and resource harvesters generally discovered the existence of the CFI operations as roads were developed and timber was clear-cut. These operations encroached on regions that have been effectively exclusive First Nations' territory since circa 3 500 years B.P.

In 1971, the CFI operations were placed into receivership by the NDP government of Ed Shreyer. Two years later, the Shreyer administration re-established the former CFI forestry operations as Manitoba Forest Products (Manfor), a provincial Crown Corporation. The Manfor operations, like those of CFI, modified significant areas of the boreal forest without First Nations' involvement and without the acknowledgement or protection of First Nations' interests in forest-based resources.

The forestry component of the "Northern Vision" never reached the original expectations of 1966. Between 1967 and 1989, the province of Manitoba invested $307 million in the CFI/Manfor operations. Between 1978 and 1988, Manfor registered an accumulated operating loss of $77 million. The Provincial Auditor indicated in March 1988 that "Manfor will require substantial sums in the future for plant and equipment replacement to maintain its operations... there is no reasonable indication that (Manfor) will ever be able to generate the funds required to replace the plant and machinery."

51 In addition, the provincial government viewed the boreal forest within the Manfor cutting area as underutilized. According to the Forestry Branch of the Manitoba Department of Natural Resources, the "annual allowable cut" within the Manfor timber and pulpwood harvesting area could be more than tripled without affecting the sustainability of timber resources. These calculations did not take into account the non-timber values of the boreal forest, such as hunting, trapping, fishing, tourism operations and wild rice harvesting by MKO First Nations.

Between 1978 and 1988, successive provincial governments pursued the twin objectives of "privatizing" the Manfor operations and "optimizing" the timber harvest to maximum levels. In early 1989, the Manitoba government announced that Repap Enterprises, Ltd. of Montreal would purchase the Manfor operations and immediately initiate a $1 billion redevelopment of the mill operations.

In addition, the proposal called for a new Forest Management Licence Area (FML) to be issued to Repap covering 108 000 km2 of prime forest, an increase of about 3 000 km3 over the 1966 CFI allocation. The Repap FML covered 20% of Manitoba, and provided exclusive timber harvesting rights to approximately 73% of the total volume of commercially harvestable timber in Manitoba (Figure 7).

The Manfor 385 air-dried metric tonne per day (ADMT) unbleached kraft mill was to be modified by Repap into two bleached-pulp mills totalling 1700 ADMT. This increase in pulping capacity would also require an increase of annual timber harvest levels from 850 000 cm3 to 3 235 000 cm3 within five years. This increase in harvest capacity would also require, within five years, an additional 2 160 km of timber harvesting roads within areas of northern Manitoba which were, as in the original Manfor development, effectively exclusive First Nations' territory (Figure 8).

Again, as in the previous announcements regarding Churchill Forest Industries, no consultation took place between MKO First Nations and government regarding this allocation of boreal forest resources.

The lands that the Manitoba government provided in the CFI, Manfor and Repap Forest Management Licence Areas have been used traditionally for generations by the MKO First Nations. The resources of the boreal forest form the foundation of the First Nations' economy. Aboriginal peoples enjoy the right to hunt, fish and trap over Crown lands - including lands within an FML - under the terms of treaty. MKO First Nations assert that these rights and the lands and resources to which they apply must be protected from disruption, pollution and environmental damage. This is necessary to ensure the continued exercise of MKO First Nations' rights.

The effects of pulp and paper production are already evident in northern Manitoba. Wildlife areas have been adversely affected by cutting activities and access to the important game habitat that supports subsistence harvesting activities has increased through road construction. New access roads have served to intensify competition for game and fish resources between the residents of large mining communities and MKO First Nations in the cutting area. There are also concerns that pulp mill discharges have had significant adverse effects on the fisheries and wildlife in the area.

In addition, there are lands within the Repap Forest Management Licence area that may be subject to selection as reserve land (discussed below at Sections 2.4.1 and 2.4.2.3): many MKO First Nations are entitled to a quantum of land under the terms of treaty. The Shoal River and Indian Birch Bands, for example, are owed approximately 12 300 acres in the affected area. In addition, the Mathias Colomb, Nelson House and the Opaskwayak Cree (The Pas) First Nations have outstanding claims totalling some 22 000 acres in the affected area.

The former Manitoba Minister of Natural Resources has stated that there is no conflict between treaty land entitlement and forestry developments: First Nations are free to select reserve lands after logging activities are completed235.

1-3-3 Provincial Ppwgr

The waterways of northern Manitoba have long been important to aboriginal peoples for food, furs, a source of clean drinking water and transportation. Furthermore, northern Manitoba watersheds are an integral part of aboriginal heritage, language, culture and institutions. The lands surrounding these lakes and rivers, and the islands within them, have, since time immemorial, provided the sites for communities, camps/cabins, gravesites and the resources for First Nations' subsistence.

Treaties were careful to ensure the "free navigation" of rivers and lakes used and occupied by First Nations by non-aboriginal persons:

'Indian title to all the territory in the vicinity of the lake should be extinguished so that settlers and traders might have undisturbed access to its waters, shores, islands, inlets and tributary streams... The Commissioners met the Indians (Grand Rapids First Nation) and informed them of the desire of the Government to control the land where they had settled, and to give them a reserve, instead, on the opposite side of the river.*36

235 Hon. Harry Enns, (then) Minister of Natural Resources, meeting with Mathias Colomb Chief and Council and MKO (May, 1989).

236 Morris, above, note 107, at pp. 144-45.

53 1.3.3.1 Grand Rapids Hydroelectric Project

Even though the government of Canada took such careful steps during treaty negotiations to ensure unobstructed navigation at Grand Rapids and throughout other treaty areas, in January 1960, the Manitoba Legislature officially announced its plans to develop the Cedar Rapids Dam, a hydroelectric project located on the Saskatchewan River at Grand Rapids, between Lake Winnipeg and Cedar Lake. Following this announcement, residents of Chemawawin and Moose Lake were informed that they would be relocated from their reserves along the shores of Cedar Lake to allow for flooding. In October of 1960, the Manitoba government formed the Grand Rapids Forebay Administration Committee to act on its behalf in all matters pertaining to the consequences of the project, including the negotiation of a proper compensation agreement for those who would be adversely affected by flooding237. Thus, from a provincial perspective, hydroelectric generation and the attendant obstruction of waterways was a more important priority than uninterrupted navigation.

On June 7, 1962, an agreement was signed between Moose Lake and the Forebay Committee. Referred to as both the Forebay Agreement and the Letter of Intent, this document contains provisions for the establishment of a forest management unit for the exclusive use of the community (Item 3), and the undertaking of studies to identify means of fostering economic development at the new site (Item 13).

1.3.3.2 The Churchill River Diversion-Lake Winnipeg Regulation Project and the Northern Flood Agreement

In June of 1968, Manitoba Hydro's licence application to proceed with the Churchill River Diversion-Lake Winnipeg Regulation Project (hereafter "the Project") was officially published, and after extensive public debate and protracted controversy, a decision to proceed with the project was reached in 1972238. Put simply, the Project provided for the diversion of water from the Churchill River into the Nelson River watershed and the regulation of water flowing out of Lake Winnipeg. Figure 9 features the control structures and generating stations associated with the Project.

Figure 9 also identifies the geographic location of the five First Nations who were adversely affected by the modification of the water regime in northern Manitoba.

237 Waldram, above, note 56, at p. 86.

238 Ibid., at p. 133. A total of 11 861 acres (19%) of the lands reserved for the Cross Lake, Nelson House, Norway House, Split Lake and York Landing First Nations were flooded by the hydroelectric megaproject239. The loss of traditional land use areas signalled the potential destruction of the knowledge and lifestyles that these areas supported.

Prior to the flooding of reserve lands, representatives from the five communities convened meetings to discuss mutual concerns and the possibilities of collective action to address the need for mitigation and compensation programs240. As a result of these meetings, and in response to the fact that the Province was acting as an advocate for Manitoba Hydro and not on behalf of Manitoba residents241, the five communities formed the Northern Flood Committee (NFC) in April 1974.

On December 16, 1977, the Northern Flood Agreement (NFA) was signed by the NFC, the Government of Manitoba, the Government of Canada and Manitoba Hydro. The NFA addresses a number of specific, yet interrelated, issues in areas such as environmental impacts, traditional pursuits, land entitlement242, community infrastructure, community planning and economic development. In addition, an arbitrator was appointed by the signatories to the NFA to ensure that First Nations adversely affected by the Project are dealt with equitably. Article 24.8 of the NFA stipulates that mitigatory and remedial measures are preferred to strict monetary compensation.

Referred to as a contemporary treaty and a "charter of rights and benefits"243, the NFA grants to the five signatory First Nations a right of first priority to all the wildlife resources within their Resource Areas244, and in the rivers and lakes which were traditionally

239 Indian and Northern Affairs Canada, Northern Flood Agreement: A Summary of the Agreement - Issues and Obligations (1988), at p. 5.

240 Waldram, above, note 56, at p. 147.

241 G. Tritschler, Commission of Inquiry into Manitoba Hydro, Final Report (1979), at p. 219-220.

242 Under Article 3 of the NFA, Manitoba agreed to grant each NFA community an area of land equal to not less than 4 acres for every acre of reserve land flooded by the Project.

243 Warren Allmand, (then) Minister of Indian Affairs and Northern Development, August 1977. From a plaque commemorating the signing of the NFA which hangs in the NFC office in Winnipeg.

244 Under the NFA, Resource Areas correspond to Registered Trapline Sections. With the exception of the York Landing First Nation, to whom the Split Lake First Nation allocated Trapline #13 out of its Resource Area, each NFA community has a recognized

55 available to and used by them as a source of food resources, income and income-in-kind (Article 15.1). In order to implement these guarantees, and to advise the Minister of the provincial Department of Natural Resources (DNR) on means of protecting and perpetuating the wildlife and fish populations in the Resource Areas, a Wildlife Advisory and Planning Board (WAPB) was established in December of 1979.

The NFA First Nations, represented by the NFC, enjoy majority representation on the WAPB. Government representatives do not sit on the board but are invited to attend meetings, act as advisors and approve WAPB recommendations245. The WAPB formulates recommendations based on the expertise of Board members who are hunters, trappers and fishermen. In addition, DNR staff provide data, policy information and other support that WAPB members may require246.

As part of the planning functions of the WAPB, the Board is encouraged to design and develop projects such as fur farming. Article 15 of the NFA also instructs the WAPB to design programs for utilizing community traplines more effectively, and for training reserve residents as Natural Resource Officers. The WAPB is not, however, accurately called a planning body, since the board does not undertake project planning, but instead passes resolutions and forwards recommendations to DNR.

Although the NFA describes the general and specific obligations accepted by the signatories in 1977, it does not always detail the precise activities to be undertaken by each of the parties. WAPB members are not only uncertain about the Board's mandate, but are largely unfamiliar with government natural resource policies and regulations247. Furthermore, Hydro is given the right to negotiate individual settlements with each of the NFA communities, a provision that is somewhat contradictory to the letter, intent and spirit of the NFA itself248. The process of implementing the NFA and negotiating fair and equitable compensation in the MKO region continues.

Resource Area.

245 Ross Thompson, Director, Policy Co-ordination Branch, Manitoba Department of Natural Resources, personal communication, 1992.

246 Barbara Connell, Arrangements for Co-Management of Fisheries and Wildlife by Native People and Government in Canada (1981) at p. 52.

247 Ibid., at p. 55; Don Macdonald, Regional Fisheries Manager, Manitoba Department of Natural Resources, personal communication, 1993.

248 Waldram, above, note 56, at p. 170.

56 1.3.4 The Promise of Employment: Tradeoffs or Tragedy?

"Many MKO First Nations have lost benefits and enjoyment from the use of the rivers and forests dammed by Manitoba Hydro and developed by mining and forestry projects using Manitoba Hydro power. These impacts have directly contributed to social and economic impacts which include increased unemployment Unemployment rates of 85% to 90% are unfortunately all too common in many MKO communities, including those immediately adjacent to major Manitoba Hydro projects.249

In the preceding section, a high unemployment rate was identified as one of the commonalities in aboriginal communities with a low standard of health care and a large population of solvent abusers. As this section will demonstrate, the fact that unemployment rates in MKO communities are well above the national average is a condition that is attributable in part to the perpetuation of a century-old policy of paternalism and assimilation.

History has proven all too often, that what is decided to be in the "public interest1 is rarely in the interest of the Indian people.250

It is a myth that hydropower is "renewable" and somehow good when looking at northern development Once a river is flooded, the non-power resources - that is the moose, trout, sturgeon, ducks and geese - become instantly non-renewable and once they are gone, they are gone forever. In addition, hydropower development provides tor mining and pulpmill operations. Manitoba Hydro, the mining companies and the forestry companies are still extracting resources and there is no plan of action tor them -tor us-in terms of what will happen to us in the future when Manitoba Hydro - for example - has successfully made Northern Manitoba a huge reservoir. Hydropower development and the resulting industrial activity hydropower supports is continuing to impose tremendous change, dislocation and hardship on our people.

When Manitoba companies have extracted the minerals which we all know are non-renewable - you can not grow minerals - they are also gone forever. Repap is progressively clearcutting the rich and diverse forests of MKO country and turning these cut areas into pulpwood forms laced with roads...

249 (then) Chief Pascali Bighetty, Mathias Colomb First Nation, MKO Submission to the Manitoba Public Utilities Board (1992).

250 Chief Norman Flett, Split Lake First Nation, MKO Submission to the National Energy Board (1984).

57 Manitoba Hydro is at the centre of all this... taking the power out of our rivers and lands and providing the power to the developers. 251

During the early period of industrialization, no explicit assurances of employment opportunities or benefits for MKO First nations were given. However, in the last few years of this period (i.e. the 1980's), several initiatives appeared to provide the promise of economic benefits as a trade-off for the environmental and socio-economic impacts of project development. In recognition of the significant, widespread and often irreversible impacts of large-scale hydroelectric and forestry projects, there were public assurances of benefits and programs for First Nations' peoples. These promises were often made in response to concerns voiced by both the public and First Nations with respect to the impacts of development on northern peoples, concerns that were generally stated as opposition to major development proposals.

In contrast, the mining industry, supported by both private and government interests, made no such assurances. Nor was the mining industry required, as a condition of government funding, to ensure that some of the project benefits accrued to the local and First Nations' peoples who were adversely affected by the developments. An assessment of the distribution of benefits, and in particular, a quantification of the benefits accruing to peoples in the region, was not a prerequisite of mineral developments.

Decisions made by the government regarding major resource developments have always reflected national and provincial objectives and not the perspectives, needs and existing resource uses of First Nations. For example, the decisions that led to the approval of the construction of the rail spur to Flin Flon and the related Hudson's Bay Mining and Smelting mining-hydroelectric complex in northwest Manitoba and Northeast Saskatchewan were all based on national perspectives of benefit252.

After 1930, the major northern developments in Manitoba were based on a prevailing view that the north is a "wilderness" and is best developed to serve the overall "public interest'. The "public interest" has typically been defined as the interests of urban and agro-rural south, rather than the interests of Manitoba's northern residents.

251 (then) Chief Pascali Bighetty, Mathias Colomb First Nation, MKO Submission to Manitoba Public Utilities Board (1992).

252 Northern Saskatchewan and Manitoba were both under federal jurisdiction in 1926- 28 as the Natural Resources Transfer Agreements with the prairie provinces did not come into effect until 1930. Therefore, all approvals and government project support at the time were provided by the government of Canada.

58 The divergence of regional-local and national-provincial perspectives, and the relationship of these differing views to project approval, was succinctly captured by the National Energy Board (NEB) in its March, 1981 Decision regarding the proposed pipeline from Norman Wells, Northwest Territories to Zama, Alberta. Although the NEB is a legislative authority in the Northwest Territories and Yukon (and only an administrative tribunal south of the 60th parallel), its findings are relevant to the MKO-regional context as the NEB frequently conducts its Territorial duties from a northern perspective and regional context. With respect to cost-benefit analyses of major resource development projects:

the Board recognizes that such studies provide one perspective (a national one) and do not deal with the distributional aspects of the project Nevertheless, cost-benefft analyses are important as an assessmerrt tool arKl regional socio-economic and environmental studies were undertaken by the Applicant to provide other perspectives.

"In summary, His the Board's assessment that the project area holds the potential tor generating some benefits in the impacts area. However, these benefits cannot be quantified at this time. As to the negative impacts, also unquantifiable at this time, the Board notes that some of these costs, by their nature, cannot be fully ameliorated through compensation or mitigation. Moreover, the Board is of the opinion that irrespective of the actual level of negative benefits, the distribution of those would fall most heavily on the native people of the impact area who are least equipped to participate in the positive impacts of the projects.1653

Even in the last years of this period of development, when project review was either a mandatory legislative requirement or was conducted in response to public pressure, project proponents assembled a mass of "scientific" studies which proved that net benefits from the project being examined would accrue to those adversely affected. In its Decision on the Norman Wells-Zama pipeline, the NEB again highlighted the difference between local-regional and national-provincial views of project "benefits":

"During the hearing, the Applicants consultant indicated that local views regarding the project were not apparent prior to the Wing of the application and thus were not incorporated into their study. Given that the majority of the impact corridor's population is of native origin, and that their views were not incorporated, the Board finds it difficult to agree with the Applicant that the regional benefits of the project, as proposed, would outweigh the negative effects."

253 National Energy Board (NEB), Decision on the Proposed Norman Wells - Zama Pipeline (March, 1981), at page 149.

59 Overall, the record shows that Manitoba and Canada have been reluctant to require First Nations' participation in the northern economy through enforceable conditions attached to licences, permits and government financial and infrastructure support. Government has preferred to direct those First Nations who are interested in obtaining a share of northern development benefits toward a process of negotiation premised on the corporate "goodwill" of resource developers.

In the absence of such enforceable conditions, developers have taken the position that specific initiatives aimed at securing First Nations a share of any benefits arising from development are strictly a government responsibility.

The inevitable circularity of these two positions has been the source of considerable frustration and conflict between First Nations, government and resource developers. In the end, northern Manitoba First Nations have, for the most part, been denied a meaningful opportunity to share in any tangible benefits of northern resource development.

1.3.4.1 Hydroelectric Development

As was the case with the Island Falls and Whitesand projects of Hudson Bay Mining and Smelting, First Nations' peoples did obtain employment at the INCO-Manitoba Hydro Kelsey Dam project, as well as at the Manitoba Hydro Cedar Rapids, Kettle and Long Spruce projects. Virtually all of this employment was in seasonal, unskilled, manual labour positions. Even though these positions were short-lived and rarely led to long-term employment, the long-term effects of these sudden cash inflows are still felt today.

Prior to the Churchill-Nelson River and Lake Winnipeg Regulation projects, our communities were generally quite isolated and Band members tended to share resources and carry out traditional activities such as hunting, fishing, trapping and craft-making.

The projects brought rapid environmental change, increased access by roads and - for some - being thrown into the cash economy with some labourers salaries exceeding $500per week. Since comparatively few of the people working at these jobs had any real experience at money management, and since little counselling or other assistance was available, money was quickly spent

During the 'boom', we experienced some erosion of the spirit of sharing so central to our culture because of the sudden creation of the 'haves and have-nots'. Men were away from their sons and nephews for long periods, as we were required to live in the work camps for 90 days without time for leave...

60 This created family stress and resulted in the weakening of traditional skills in the young people affected. These long stretches away from home, combined with money, greatly aggravated problems with alcohol and drugs.

The environmental damages growing by the seasons and the frustration at the reality of "jobs in the north" created many destabilizing impacts on our people.

We are new somewhere in between. Our communities are not in nearly as much turmoil as during the 'boom', but we are not like before either. Sometimes I wonder if the money from the earlier dams was worth all the changes and trouble. I realize that change is inevitable in this world, but I am angry that all of this has taken place and left little of lasting benefit. We know that many became wealthy as a result of the dams, but none of them were Indian people.*5*

THE LIMESTONE PROJECT

The Limestone hydro-electric development project marked the first time that a resource developer (Manitoba Hydro), the provincial government, the federal government, and First Nations' organizations sought to pursue a comprehensive policy of maximizing northern employment and business benefits arising from northern resource development.

The 1984 announcement by Manitoba of a 500 MW electricity export contract with Northern States Power of Minnesota and the resulting recommencement and acceleration of the Limestone hydroelectric project elicited buoyant optimism from Manitoba, hopeful cautions from Canada and scepticism and concern from Manitoba's northern native community concerning economic and employment opportunities. Due to time constraints imposed on program delivery, infrastructure development and training, the acceleration of Limestone was recognized by First Nations and the federal government as an additional obstacle to the capture of economic opportunities for native (Metis) and aboriginal peoples.

"Our export agreement with the Northern States Power Company will bring considerable benefits to Manitoba and will enable us to construct the Limestone generating station. The signing of an agreement with Western or either of the Minnesota-Wisconsin utilities groups would lead to the construction of the Conawapa station.*55

254 Chief Norman Flett, Split Lake Cree Nation, MKO Submission to the National Energy Board (1984).

255 The Hon. Wilson Parasiuk, (then) Minister of the Manitoba Department of Energy and Mines, from a speech to the MKO Executive (September 26,1984). In this speech,

61 In his capacity as Minister, Parasiuk also spoke of significant aboriginal opportunities in: direct on-site employment through contractors; direct on-site employment through Hydro; spin-off employment through businesses and ventures established to provide services to the Limestone site, and; permanent positions with Manitoba Hydro.

"... a key challenge will be to ensure that there is sufficient time for Northern native people to take advantage of the opportunities created by the project as envisaged under the Northern Flood Agreement It will also be important that these measures are developed in direct consultation with representatives of northern Indian bands and communities. (Canada intends to) ensure the needs, concerns and rights of Indian people are taken into account*56

'If Manitoba Hydro proceeds with its plans to begin construction (of Limestone) very soon, the employment and business opportunity programs and policies which we feel must be developed will not have time to be put into place. This will virtually eliminate Indian people from any meaningful share in the 'benefits' from Limestone. Without on-the-job training, academic upgrading and other skill-building programs which are geared toward allowing native northerners an opportunity to be employed in the long-term Operations and Maintenance positions, service businesses and the like, we will continue to experience some of the worst aspects of localized 'boom and bust economies.*57

To heighten the optimism, the Limestone development required the design and implementation - almost overnight - of effective structures for consultation and program delivery. These structures were in addition to the existing backdrop of multiple government programs and the development of native business capacity. Working in concert, Manitoba Hydro, government and native organizations supported northern native and non-native training and employment, purchasing and contract preferences and, to a lesser extent, business development.

Parasiuk announced that the export sale contract would allow for the resumption of the construction of the Limestone generating station. Construction had been placed on hold since 1978.

256 The Hon. David Crombie, (then) Minister of Indian and Northern Affairs Canada, in a letter to The Hon. Wilson Parasiuk, (then) Minister of Manitoba Energy and Mines (October, 1984).

257 Chief Norman Flett, Split Lake Cree Nation, MKO Submission to the National Energy Board (1984).

62 THE NORTHERN PREFERENCE CLAUSE

The overall thrust of the Manitoba Government's economic policy and resulting programming for the Limestone hydroelectric development project was based on a policy of preferential hiring and training.

To more firmly establish the northern preference clause, the Manitoba Government and Manitoba Hydro amended the Nelson-Burntwood Collective Agreement to improve First Nations' access and participation, only to later rescind these amendments without consultation with aboriginal organizations.258

In order to facilitate northern and northern native employment in labour-intensive construction phases of the Project, the hiring system was changed to give employment preferences, wherever practical, in the following order: local residents, residents of Manitoba and residents of Canada. According to Article 13, a local person qualified as a local resident if they lived in the area of Census Division 16 and/or Census Division 19 north of the Winnipeg River, for a period of at least five years and a period of 6 consecutive months, or more, immediately prior to initial hiring.

LIMESTONE TRAINING AND EMPLOYMENT AGENCY

The northern labour force, and in particular the aboriginal labour force, did not possess the appropriate skills to qualify for many of the employment opportunities. Moreover, the accelerated pace that many utilities adopt in the construction of hydro facilities did not allow for individuals to develop the required skills through conventional means in the interim.

To overcome this situation, the provincial government, through the Manitoba Energy Authority, established the Limestone Training and Employment Agency (LTEA). The overall objective of the LTEA was to assist northerners in developing the skills and training necessary to work on the construction of the hydro station.

From its central location in Thompson, the LTEA co-ordinated a wide range of training programs that were funded through a provincial-federal training agreement. Community liaison staff worked in conjunction with outside organizations to assess the skill level of the local workforce and informally recruit potential employees.

258 The Nelson-Burntwood Collective Agreement, between the Allied Hydro Council of Manitoba (representing the unions) and the Hydro Projects Management Association (representing Manitoba Hydro and contractors), governed the on-site construction work and services related to the Limestone Generating Station as well as the construction of any future hydroelectric projects on the Nelson and Burntwood Rivers. The programs themselves varied in length from seven to forty weeks depending on the job category. Pre-employment training programs were offered for those jobs that did not require an apprenticeship (i.e. labour owned or security guard). For those positions that required an apprenticeship, such as carpenters, electricians and iron workers, there was a tendency to place clients in an apprenticeship program. Pre-employment training was made available for those people in need of skills-upgrading for entrance into first year apprenticeships.

MANITOBA HYDRO INITIATIVES

In response to the aforementioned provincial government initiatives, Manitoba Hydro created a department of Corporate Affairs under its wing in early 1985. This Department was responsible in part for implementing a program of affirmative action which would allow northerners - especially northerners of aboriginal ancestry - to participate more actively in Manitoba Hydro's northern development projects.

MANITOBA HYDRO PURCHASING GUIDELINES

The utility adopted for the first time a purchasing and tendering policy designed to encourage and maximize the involvement of Manitoba residents in the Limestone project. Specific initiatives included: the sub-dividing of hydro work packages into contracts that are within the scope of Manitoba firms; the demonstration of preference to those tenders where price and quality were comparable; the development of a policy to purchase goods and services from provincially-based businesses; and, under special circumstances, the issuance of tender calls to Northern businesses, or the negotiation of contracts with Northern or Northern native groups.

To assist Manitoba Hydro in its purchasing policy, the provincial government established the Manitoba Jobs Fund Limestone Development Office. This office provided supplementary information on business and employment opportunities, government programs providing business advisory service and employment training and Limestone accommodations and services.

In addition, the provincial department of Industry, Trade and Technology (IT&T) compiled two directories to assist potential contractors in identifying the Manitoba manufacturing and industrial service companies that could participate as subcontractors. The first was a Sourcing Directory consisting of Manitoba firms, and the second was a Northern Business Directory that provided information on the industrial and commercial capabilities existing in Manitoba.

64 Through the Manitoba Jobs Fund, the Manitoba government developed the northern business and sourcing directories of businesses and contractors who may have potentially captured contracts at Limestone and Limestone-related businesses. The survey classified business respondents as:

Heavy Contractor; Building Contractor; Heavy Equipment; Accommodation/Food Service; Transportation; Wood and Logging; Supply and Service Industry; Retail/Wholesale Trade; and Other

This listing identified a large number of aboriginal and native businesses that represented each of the above categories. The Business Directory was used as a generic identifier of businesses, but was not linked to any affirmative program for matching Limestone contracts with potential contract and business opportunities.

Following the completion of the Limestone project, MKO conducted a comprehensive research project to determine the degree of First Nations' capture of contracts and penetration into the business and employment markets of Limestone. The results of the MKO research revealed:

aboriginal businesses and contractors did not achieve any significant capture of Limestone contracts or Limestone related business opportunities;

several aboriginal contractors and businesses who had extensive Northern experience in large all-season construction projects such as schools, community centres, and highway development were identified but were largely unable to obtain any contract benefits from the Limestone development;259

the aboriginal and native businesses that successfully realized the Limestone opportunities were a small number of businesses which were:

259 Several First Nations contractors listed in the Sourcing Directory, such as Nelson House Loggers, also had several types of heavy equipment such as large bulldozers, graders, scrapers and large flat-bed trailers for moving such equipment, although not one of these contractors supplied equipment or obtained contracts during the construction phase at Limestone.

65 new businesses; businesses not listed in the Jobs Fund Sourcing Directory; and typically supply and service businesses, not contractors, builders or others in sectors such as transportation;260

most of the individuals who had obtained training through the LTEA-related programs in heavy equipment operation and other fields directly related to contracting and construction work were unable to find employment at Limestone once their training had been completed;

several major institutionalized factors that were not addressed by government Limestone initiatives served to limit First Nations' participation in the Limestone development, such as:

bonding; degree of experience or training; size of contract; access to contract specifications and bid information; union membership requirements; type of equipment; availability of equipment; and business development program requirements;

the determination of "adequate" training and experience levels for contractors and businesses and the manner in which these determinations was linked to the application of the "northern preference" policy and other affirmative programs served to effectively negate the intent of the policy: large numbers of highly skilled construction workers were available in Manitoba from recently completed hydroelectric projects in British Colombia and Quebec;261 and

260 The principle Limestone "success" stories often referred to by Manitoba Hydro and government are: the Fox Lake Enterprises (Gillam) Cleaning Centre and Bakery and Wapun Security (Neyanun Development Corporation).

261 In 1983-84, the massive B.C. Hydro Revelstoke Dam on the Columbia River was completed. Revelstoke was the last of a long series of very large-scale projects begun in the mid-1960's which included the Peace Canyon and Portage Mountain Dams on the Peace River and the Mica Creek, Keenlyside and Kootenay Canal projects on the Columbia and Kootenay Rivers. Twenty years of virtually non-stop hydroelectric development in British Columbia had come to a halt. In addition, B.C. Hydro was laying off thousands of employees and was in the process of disbanding its in-house dam construction unit in favour of outside contracting. Similar to the situation in British Columbia, the Hydro Quebec projects on La Grande and other rivers in Quebec had

66 in comparison with other large developments that contain specific licence conditions requiring affirmative programs for First Nations' employment and contract capture, the programs related to Limestone were less effective. Some of the features contributing to this relative lack of effectiveness were:262

no regulatory oversight at Limestone; less political commitment; less direct participation by First Nations and native organizations; lack of specific programs to overcome institutional barriers such as access to capital and bonding; and availability of highly trained workers from other areas.

In March of 1985, when the National Energy Board authorized the Manitoba Hydro export sale which would lead to the construction of the Limestone Generating Station on the Nelson River, only 1.6% of the Manitoba Hydro workforce were First Nations' peoples, or 59 positions out of a workforce of 3 6092™ This was the situation after almost twenty- five years of hydroelectric construction and operation, including: largely been completed by 1984. At the time Limestone construction commenced, there were literally thousands of highly-skilled individuals available to the project contractors, including project managers, engineers, cement workers and heavy equipment operators. There was also a considerable amount of now-idled heavy equipment specifically suited to dam construction.

262 The National Energy Board wrote, in its Conclusions and Recommendations at s. 8.4.4 of the 1981 Decision regarding the Norman Wells-Zama Pipeline project: "...In terms of regional and socio-economic desirability, the Board is of the opinion that the project would not necessarily provide the region with a net positive benefit, but rather that its modest potential benefits and potential liabilities would balance out. Should a certificate be granted, the Board would require that the following conditions be met: that the Applicant prepare and develop, prior to construction, the key elements of each of the socio-economic plans and programs which the Applicant undertook to carry out. These would include those dealing with information-consultation-liaison, cultural and traditional resource harvesting, effects on communities, regional effects, compensation and monitoring ... Given the importance of these plans and programs to the impact area, the Board believes it is necessary that these be subject to public scrutiny and approved by the Board prior to implementation." MKO had recommended to the NEB that a similar process that involved both monitoring and regulatory oversight be attached as an enforceable condition of any federal licences issued related to the Limestone project.

263 Bob Brennan, President, Manitoba Hydro, in a letter to MKO Chairman Harold Turner, March 31, 1993.

67 the Kelsey, Grand Rapids, Kettle, Long Spruce and Jenpeg dams; the Lake Winnipeg Regulation and Churchill River Diversion projects; and the Bi-Pole I and II high-voltage DC Transmission projects, as well as the 500 kv AC transmission line.

Between 1985 and 1990, during the construction of the Limestone generating station, the employment of First Nations' peoples by Manitoba Hydro peaked at 6.3% and was about 5.1% in December, 1990 (252 positions out of a total workforce of 4 372). Most positions were secretarial, camp support, manual labour and custodial positions, with few placements in skilled construction or electrical trades, hydroelectric operations or management.

Even though 45% of tfje total population in the northern service and operating regions of Manitoba Hydro are First Nations' peoples, less than 3% of Manitoba Hydro employees in the MKO region are members of MKO communities.

If examined on a proximity-to-generating station basis, the aboriginal population within 15 km of Manitoba Hydro stations averages about 80%, further highlighting the enormous employment inequity.264

'Power bills are significant expenditures in our communities and we have very limited resources to pay these bills. There is an 'insult to injury' issue in northern power rates because Manitoba Hydro is collecting Manitoba government water rental fees for all the water that is Hewing through Manitoba Hydro dams. In other words, the province charges Hydro rent for using our water. It means that MKO members are paying at least twice; once for the rivers that Hydro has taken from northern Manitoba people, and then we are paying again in our power rates. At a minimum, all twelve MKO First Nations affected by Manitoba Hydro should be exempt from any share of the water rental fees, and should receive a rebate on water rentals already paid.'e65

264 For example, Manitoba Hydro crews at the Jenpeg generating station on the Nelson River are flown in from Winnipeg, some 500 km to the south, on a rotation basis. Even though Jenpeg was completed in 1974 and the Cross Lake First Nation is just 15 minutes by road from the Jenpeg station, there are no Cross Lake First Nation members serving as operating personnel at Jenpeg.

265 (then) Chief Pascall Bighetty, Mathias Colomb First Nation, MKO Submission to Manitoba Public Utilities Board (1992).

68 When Limestone was completed, Manitoba Hydro served eleven MKO communities with diesel generating plants. The proposed North-Central Transmission System would link seven of these communities to the Manitoba Hydro central system when completed. The remaining four communities, Brochet, Lac Brochet, Tadoule Lake and Shamattawa are presently scheduled for "enhanced" diesel service, instead of linkage to a central grid by a "land-line".

The proposed Manitoba Hydro "enhanced" service would increase the present 15 amp limited service to a 60 amp limited service. Even this "enhanced" supply to be provided by Manitoba Hydro through the operation of diesel-powered generating units is inadequate for the individual needs of the four MKO communities. For example, a 60 amp service will not support the installation and operation of basic services in these First Nations' communities such as electric heat, underground water and sewer systems. These are services that are largely taken for granted by Manitoba Hydro customers who have access to the Central Transmission System.

1.3.4.2 Forestry Development

'Prior to the signing of Treaties and the creation of Canada and Manitoba, First Nations were able to use and benefit from the resources and lands within our traditional territories. Indian people were able to exert whatever influence and control was required to manage and regulate the use of resources to ensure for the future of our people. The land and our people were one.

"At the time when the treaties were established, the quality of our environment was such that our communities could access ample supplies of clean water, timber and wood, fish, berries and medicinal plants, beaver, muskrats, moose, caribou and geese. The right to hunt, fish and trap was secured by the Chiefs in the treaties to ensure that our people could continue to enjoy these resources from which our families benefitted since time immemorial.

These rights are a primary remainder of the control and influence over the land and resources which our people surrendered and which now create the principal wealth of Canada. Although it was perhaps not so clearly seen by our people at the time, the government also viewed the Treaties as surrendering the stewardship, management and regulation of these same renewable resources so valuable to Indian people.*66

266 (then) Chief Robert Wavey, Fox Lake First Nation.

69 The manner in which the boreal forest continues to be used by First Nations and developed by forestry companies affects virtually every environmental, resource policy and resource management issue in the MKO region. The manner in which the boreal forest continues to be used and developed will also significantly affect the social, cultural and economic future of the MKO First Nations.

The boreal forest of the MKO region is almost completely interconnected by skidoo and summer trails, rivers, lakes and portages. The region also contains hundreds of spring, summer and winter hunting, fishing, gathering and trapping encampments, many of which have continually been used by MKO First Nations' families for generations. The boreal forest provides considerable direct economic value to the communities, uses which are largely invisible to southern-based resource politicians, resource managers and developers.

The boreal forest of Manitoba supports what is perhaps the most extensive and intensive traditional direct use of forest resources by the largest number of First Nations' peoples anywhere in Canada, and perhaps in North America.287

The progressive transformation of the boreal forest into a managed tree plantation has resulted in significant alterations to the age of timber stands, habitat, species diversity and wildlife populations. Water and fisheries resources have also been adversely affected. A separate and perhaps more acute impact is the increased access to existing wilderness areas through extensive all-weather and winter road construction.

MKO First Nations actually and potentially affected by forestry development - as well as unaffected community members - have been given assurances of long-term economic opportunities in terms of contracting and employment. As this section demonstrates, however, forestry allocations and government policy and programs in the MKO region have not protected the long-term interests of First Nations in the resources of the boreal forest.

The first explicit assurances made by government regarding the involvement of MKO First Nations in the forest sector was contained in the 1962 Grand Rapids Special Forebay Agreement268.

267 Martin Wienstein and Peter Usher, Consultants, personal communication, July, 1991.

268 The 1962 Grand Rapids Special Forebay Agreement was not an agreement, per se, but were government promises contained in letters delivered to the Moose Lake and Chemawawin First Nations. These letters outlined the government initiatives to compensate the two First Nations for the adverse impacts of the Manitoba Hydro Cedar Rapids Dam.

70 The Agreement contains a labour guarantee of 75% for persons of native ancestry in timber harvesting activities within the area that is now Forest Management Unit (FMU) #53. In addition, the Forebay Agreement established FMU #53 as a Forest Resource Area for the Moose Lake First Nation. The Manitoba government subsequently established Moose Lake Loggers as a Crown Corporation in 1971 to assist in the realization of this objective.

However, FMU #53 was subsequently incorporated into both the Churchill Forest Industries and Manfor Forest Management Licences by the provincial government. FMU #53 is now part of the REPAP Forest Management Licence Area, a move that was made without the agreement of or compensation to the Moose Lake First Nation. The effective reallocation of FMU #53 to large forestry operations has created a situation in which Moose Lake Loggers is totally dependent on harvesting contracts from these operators. In addition, the 75% labour guarantee provisions of the Forebay agreement were not specifically entrenched any of these forest licences.

The original 1967 Churchill Forest Industries Agreement contained provisions which required training and employment of workers in both mill and bush operations. Analysis indicates that the provisions were neither guaranteed by CFI, nor enforced by government, even when the CFI operations came under provincial control through Manfor.

In addition, Schedule "A" of the now-expired $27 million Five-Year Canada-Manitoba Forest Renewal Agreement (1985-1990), states that one half of the person years to be funded through the Agreement must be targeted for "persons of native ancestry":

The extent to which activities under this Agreement can address the major problem of unemployment among persons of native ancestry is of major importance. It is estimated that 375 person-years (out of 748 person years) of employment for persons of native ancestry will be created under this Agreement In addition, the training and experience provided to these workers through activities under the Agreement will improve the opportunities for sustained and meaningful employment after the expiry of the Agreement

This goal was not achieved, and no significant and permanent enhancement of a First Nations' presence in the forest renewal sector (e.g. silviculture activities such as site preparation, thinning and spacing and tree planting) resulted. Retrospective analysis conducted by MKO identified that Forestry Canada and the Forestry Branch of the Manitoba Department of Natural Resources made a minimal effort to advise MKO First Nations of the potential economic opportunities afforded by the Canada-Manitoba Forest Renewal Agreement. Instead, more than 90% of non-government program funding was captured by non-aboriginal contractors.269

269 The present Canada-Manitoba Partnership Agreement in Forestry (1990-1995), contains no targets or suggests specific provisions for native participation, except to say,

71 The MKO First Nations who would be affected by the Repap operations met with Manitoba Premier Gary Filmon to request that the Manitoba government insert an employment and contracting preference clause which embodied a "right of first refusal"270 within the text of the then-unsigned Repap Share Purchase Agreement The government would not accept a "right of first refusal", and placed the following section in the Share Purchase Agreement: s. 9.01(d) give priority of employment in the operations of the Company, first, to persons normally resident in The Pas area of the Province of Manitoba, and thereafter, both in respect of the operation of the pulp and paper mill and the saw mill, to persons normally resident in the Province Of Manitoba, to the extent that required skills and experience are available provided that the same is not in contravention of laws, regulations or any other matters making compliance contrary to the public interest'

This clause clearly fell short of the objectives of MKO in protecting the economic and employment interests of the First Nations' membership in the Repap licence area. In addition, the training programs mentioned in the Repap Share Purchase Agreement were only targeted at retraining existing employees of mill operations to operate the redeveloped mills. No training programs designed to facilitate new employment for persons within the cutting area were made a requirement of the sale.

The intent of the qualifying statement in the Repap SPA employment preference clause, to the extent that required skills and experience are available', was essentially the same approach that placed even fully trained potential First Nations' employees and contractors at a marked disadvantage during construction of the Limestone generating station. In the Repap case, however, there was no requirement or program for the training of First Nations' peoples within the Forest Management Licence Area. In addition, First Nations' peoples within the cutting area, but outside of "The Pas area", were required to compete with all Manitoba residents and companies, including established forestry operators from the south.

at Sub-Program A.2., Management of Federal Crown Lands: "...once again subject to funding and native interest, training programs will be developed to enable natives to participate in forestry activities both on and off reserves".

270 MKO was privy to the details of the 1988 sale by the Conservative Saskatchewan government of the NorSask forestry operations in Meadow Lake, Saskatchewan to a consortium of unions, management and the Meadow Lake Tribal Council. The Forest Licence issued to NorSask required, at s. 7.02: "The Licensee shall offer the right of first refusal to the residents of communities and districts within the... Supply Area(s)... with respect to employment opportunities created as a result of the harvesting of timber and reforestation activities undertaken in the... supply area". MKO sought the inclusion of an essentially identical clause in the Repap SPA or Forest Management Licence.

72 In addition, Repap was required to maintain the employment levels in place at the time of the acquisition. This clause, combined with the requirement to honour existing union contracts for both mill and bush workers, also mitigated against any opportunities for expanded direct First Nations' employment in Repap operations. The proposed mill expansions would also entail modern automated processes, thus allowing Repap to quadruple production with a roughly similar workforce to that of the existing operations.

Contracts are awarded by Repap on the bases of deliverability, reliability and price (DRP)271, and thus a timber harvesting operation must be economically competitive to receive them. In general, economic competitiveness in the timber harvesting industry is achieved by an operator if modern timber harvesting equipment, such as feller bunchers and skidders, is utilized. No existing First Nations' timber harvesting company in the MKO region presently operates feller-buncher equipment. Repap also admitted that it would not consider multi-year contracts to serve as "collateral" for the more than $300,OCX)272 required to purchase a used feller-buncher. Thus, strict adherence by Repap to its DRP policy, combined with one-year cutting contracts, virtually ensures that MKO First Nations will be unable to participate in any economic opportunities and attendant benefits of Repap contract harvesting operations. For the same reasons, it appears as though operators like Moose Lake Loggers will continue to be viewed as only marginally competitive in the timber harvesting industry.

1.3.4.3 Mining Development

As mentioned above (Section 1.3.1), mining developments were the first major industries in northern Manitoba, and Cree trappers and prospectors identified some of the largest and most profitable mining deposits. Despite these facts, there has been very little penetration by MKO First Nations' peoples into any sector of the mining industry. In addition, even though mining operations have been substantially supported with public funds (i.e. those allocated by government for road and rail construction, hydropower and transmission line development, town-site infrastructure, liability limitations for the environmental consequences of abandoned tailings and various forms of loans and loan guarantees), no requirement for local-regional First Nations' employment and training has ever been tied to this support.

271 Patrick Maley, Vice-President, REPAP Enterprises, personal communication, April, 1989.

272 Bill Henderson, Operations Manager, Repap Manitoba, personal communication, October, 1989.

73 The Manitoba government has failed to maximize local-regional employment through affirmative action programs or other employment, training or remedial programs by neglecting to include First Nations' employment as an enforceable condition of Manitoba mining permits, leases or licences.273

In 1990, the Sub-Committee on Native Participation in Mining of the federal-provincial Intergovernmental Working Group on the Mineral Industry, a committee that included two representatives of the Manitoba government, assessed the status of federal, provincial and territorial programs to involve persons of native ancestry in the mining industry274. Manitoba did not provide a response to the Phase I study survey, thereby highlighting the fact that Manitoba had no applicable mining-specific programs to display in the research results. Manitoba did, however, provide information in the Phase II study that indicated that there were no mining-specific policies or programs within Manitoba, and that Manitoba relied upon broad-spectrum economic development programs to encourage native participation in the mining industry275.

273 This is in contrast to Saskatchewan mineral licensing policies, which require, as a condition of Surface Leases, the maximizing of employment by residents of northern communities and reserves. For example, the 1978 lease issued to the Cluff Lake uranium mine states, at Part III: "This part recognizes the fact that northern people, and in particular northern people of Indian descent face large scale unemployment and a large number of socio-cultural barriers which would hamper their ability to obtain employment without special remedial action being taken. The intent of this part, therefore, is to obligate the Lessee to provide northern residents the maximum direct economic benefits that may be achieved during construction and operation of the mine and mill, and to provide for a co-operative effort by the Lessee and the Minister to fulfil this intent."

274 Sub-Committee of the Intergovernmental Working Group on the Mineral Industry, Report on Native Participation in Mining, Phase I (December 1990); Phase II, "It Can Be Done" (November 1991).

275 The Manitoba members of Sub-Committee of the Intergovernmental Working Group on the Mineral Industry cited the following current programs designed to assist native participation in mining: the Limestone Training and Employment Agency (LTEA) (which trained workers for the Limestone hydroelectric project and was disbanded in 1991) and the Canada-Manitoba Northern Development Agreement [NDA] (which expired in 1990). The Manitoba Sub-Committee representatives noted at pages 79 and 81 of the Phase II report that these programs equipped trainees for "future initiatives". An MKO Chairman, former Fox Lake Chief Robert Wavey, described the First Nations trainees under these programs as "the most highly-trained group of unemployed people in northern Manitoba". Against this backdrop of limited mining-specific policies and programs supporting native participation in Manitoba's mining industry, the Phase I report does indicate that in 1981, Manitoba residents of native descent represented 4.5% of all employees in the mining, quarrying, and oil and gas sectors. This was the third best participation rate in Canada and compared favourably with a national average of 1.7% and a western-territorial average of 6.15%278. However, the study identified "natives" as persons of Status, non- Status, Metis, Inuit and Inuvialuit descent. Thus, a breakdown of the participation rate (including a removal of the oil and gas sector positions, since there is no oil and gas sector in the MKO region) reveals that in 1981, the northern Manitoba First Nations' participation rate in mining was considerably less than 4.5%: many mining jobs were and are presently filled by persons of Metis descent

In 1990, a former Hudson Bay Mining and Smelting Vice-President stated:

"Native people and organizations have made valuable contributions to understanding the long-term impact of HBMS's operations on the environment, and even more vital, have helped us see what we can do to remedy some past mistakes... Some people may ask, fairly enough, why has it taken us so long to pursue this active partnership with the Native People of the North. I don't really know.*77

To summarize, resource development activities in the MKO region have generally been large-scale operations, carrying with them significant adverse environmental impacts and no guarantee of employment for MKO First Nations' peoples. Not only have MKO First Nations found it difficult to secure employment with resource developers, they have never shared in the resource rents generated by these developments. In only a few cases, the government has implemented (or attempted to implement) mitigative or remedial programs and awarded monetary compensation to First Nations for the negative and often irreversible impacts of resource development projects. Money cannot, however, replace the land base upon which First Nations rely for their cultural survival, and upon which a self-reliant and self-governing society can be built. As Harold Buchwald, the counsel for the South Indian Lake Community during negotiations with Manitoba Hydro regarding the Lake Winnipeg Regulation - Churchill River Diversion Projects articulated, "money compensation means little without the ability to translate it into sustaining one's self with dignity and self-respect"278.

276 Sub Committee on the Mineral Industry, Phase I Report, above, note 274, at p. 48.

277 Walker, above, note 226, at pp. 150-151.

278 Harold Buchwald, Statement of Counsel with Respect to the Manitoba Hydro Proposal of May 25,1972 (June 5,1972).

75 2.0 THE MKO FIRST NATIONS TODAY: IDENTITY AND RIGHTS

The ancestors of the present-day MKO First Nations' peoples were the first to contact the Hudson's Bay Company near the mouth of the Nelson River in northern Manitoba more than 320 years ago. This long record of close "contact" and sharing with non-aboriginal peoples by the Cree, Denesuline (Chipewyan) and Ojibwa-Cree is perhaps only shared by the aboriginal peoples of the Maritimes and St. Lawrence River Valley.

"One of the gravest of the questions presented for solution by the Dominion of Canada... when the North-West Territories and Rupertsland was entrusted by the Empire of Great Britain to her rule, was the securing the alliance of the Indian tribes, and maintaining friendly relations with them...

"(The Indians) had witnessed a sudden irruption into the country of whites from without In the West, American traders poured into the land, and freighted with fire-water, purchased their peltries and their horses, and impoverished the tribes. In the East, white men took possession of the soil and made for themselves homes... steamboats were placed on the inland waters - suweyors passed through the territories - and the 'speaking wires', as the Indian calls the telegraph, were erected. What wonder the Indian mind was disturbed...

The Indians of Canada have, owing to the manner in which they were dealt with for generations by the Hudson's Bay Company, the former rulers of these vast territories, an abiding confidence in the Government of the Queen... This must not, at all hazards, be shaken.*79

As explored in Part One, relations between Canada and the First Nations of the western prairies quickly deteriorated following the signing of the first treaties in 1871, thereby giving rise to the participation of First Nations in the Metis rebellion of 1885. In providing a chronicle of this period, a contemporary writer speculated that should the Metis have chosen to skirmish instead of waiting for notice of negotiations with Ottawa,"... the entire Metis and Indian population (of the western prairies) would have been in revolt."280

279 Morris, above, note 107, at pp. 9-10 and 285.

280 George Woodcock, Gabriel Dumont, The Metis Chief and His Lost World (1975), at pp. 192-193. It was further speculated that Chief Crowfoot, leader of the powerful Blackfoot Confederacy, Chief Piapot, leader of many of the Plains Cree tribes who did not participate in the rebellion, and Chief Sitting Bull, leader of the Sioux who had escaped the United States military by crossing into Canada, would have all responded to signs of a successful Metis campaign against the limited force of a largely untrained Canadian militia, as these First Nations shared the considerable frustrations of the Metis and Cree in the South Saskatchewan River area.

76 Throughout the restive period on the prairies that extended into the early 20th century, the Cree, Ojibwa-Cree and Denesuline of the northern boreal forests of the MKO region continued to enjoy both their traditional pursuits and trade with Hudson's Bay Company, activities that were largely uninterrupted by non-aboriginal settlement and pressures.

However, during the past six decades, and in particular the last thirty years, the closing of the trade posts within the MKO region, coupled with the advent of large-scale natural resource development - particularly hydropower, mines and forestry - and the imposition of the residential schools system has led to a shift away from co-operative and mutually beneficial associations toward relations that are predominantly adversarial. Intensifying this is the fact that many of the promises made by Canada during the treaty-making process between 1874 and 1910 remained unfulfilled.

In the early 1980's, First Nations in Canada hoped for the beginning of improved relations with Canadians and the long-overdue resolution of many injustices. This occurred when aboriginal and treaty rights were recognized and affirmed in the Constitution Act, 1982 and when a process for the further entrenchment of self-government was established.

The failure of the Constitutional conferences on self-government, held between 1983 and 1987, and the subsequent exclusion of First Nations from the process leading to the Meech Lake Accord served to further focus First Nations' frustration and alienation. In 1990, the considerable frustration among the First Nations from British Columbia to the Maritimes surfaced in two events: first, was the defeat the Meech Lake Accord in the Manitoba Legislature by the lone First Nations' Member of the Legislative Assembly; and the second was the armed standoff and road blockades by Mohawks at Kanesetake and Kanawake in support of 270-year old land rights.

In June, 1990, Canadians watched as hundreds of First Nations' leaders and membership from across Canada converged in Winnipeg to provide organizational and moral support for Manitoba MLA Elijah Harper.

Through July, August and September of 1990, MKO First Nations again joined First Nations' peoples throughout Canada in solidarity with the men, women and children of Kahnesatake and Kahnawake. In addition to the moral, financial and political support provided by First Nations to the Mohawk struggle, First Nations across Canada blocked roads and railway lines both in support for the Mohawk claims and to raise awareness of similar outstanding grievances in their own regions.

These were the first widespread direct actions taken by First Nations in opposition to government policy and inaction since the rebellion of 1885. With the Canadian Army engaged in Quebec and the RCMP involved in the various other blockades throughout Canada, there was considerable concern on the part of the government that the intensity and incidence of this "civil disobedience" might escalate.

77 On September 25,1990, the eve of the conclusion of the standoff at Kahnesatake, Prime Minister Brian Mulroney sought to comfort First Nations (as well as those Canadians and Members of Parliament sympathetic to the Mohawks and other First Nations) through a major policy statement on aboriginal affairs commonly known as the "Four Pillars" speech.

In this speech, the Prime Minister referred to Canada's interest in establishing an undefined "new relationship" with First Nations as one of four policy "pillars"281.

Given that there is already a well-developed, existing constitutionally-entrenched relationship based on fiduciary282 and treaty obligations, MKO First Nations were concerned that the federal government may attempt to unilaterally create a "new" relationship. In other words, MKO viewed references to a "new relationship" as a federal strategy to deflect public understanding of the failure of Canada to implement and honour existing treaties and land claim settlements such as the Northern Flood Agreement, as well as a failure to honour other constitutional and fiduciary obligations.

On April 23,1991, in the wake of the failure of the Meech Lake Accord and the stand-offs at Kahnesatake and Kahnawake, the Prime Minister addressed the First Nations' Congress and announced that a Royal Commission would be established to "examine the economic, social and cultural situation of the aboriginal peoples of this country". The Prime Minister appointed Brian Dickson, former Chief Justice of the Supreme Court of Canada to assist in establishing the membership and terms of reference for the Royal Commission.

7 feel deeply that this wonderful country is at a crucial, and very fragile, juncture in its histoiy. One of the major reasons for this fragility is the deep sense of alienation and frustration felt by, I believe, the vast majority of Canadian Indians, Inuit and Metis**3

Similarly, in 1880, (then) Lieutenant Governor Alexander Morris described the attitude of First Nations as "troubled" and spoke of the necessity of maintaining good relations with First Nations. Over one hundred and ten years later, former Chief Justice Dickson recommended that:

281 The other three "pillars" of the programs proposed by the Prime Minister were: an accelerated land claims process; improved economic and social conditions on reserves; and a realization of the concerns of aboriginal peoples in "contemporary Canadian life", such as education and health care.

282 The concept and nature of the fiduciary relationship is explored in Section 2.1, below.

283 The Right Honourable Brian Dickson, Report of the Special Representative respecting the Royal Commission on Aboriginal Peoples (August 2,1991), at p. 2.

78 the Commission of Inquiry should investigate the evolution of the relationship among aboriginal peoples, the Canadian government, and Canadian society as a whole'.*"

In October 1992, the Royal Commission on Aboriginal Peoples wrote:

"... the door is now open; and we must take advantage of the opportunity to build a new relationship.

MKO is not, however, interested in developing a new relationship between First Nations, governments and non-aboriginal Canadians, but a refinement of the well-established existing one. MKO believes that the Four Pillars will only stand if they are based on a recognition of the existing foundation built by case law, s. 35 of the Constitution Act, 1982, treaty rights and the terms of treaties, aboriginal sovereignty and Canada's fiduciary and trust responsibilities. Similarly, any policies, programs and legislation recommended by the Royal Commission on Aboriginal Peoples must be based on this recognition. The substantive components of the existing relationship and the fiduciary obligation and aboriginal/treaty rights on which it is based are explored before the efforts of MKO to refine it are presented.

2.1 The Existing Relationship - The Fiduciary Obligation of the Crown and the Rights of the Aboriginal Peoples of Canada

The exclusive legislative jurisdiction of the federal government under s. 91 (24) of the Constitution Act, 1867 crystallizes an existing "fiduciary obligation" owed by the federal Crown when dealing with aboriginal peoples. The Royal Proclamation of 1763 and the Rupertsland and North-Western Territory Order of 1870 are considered to be the sources of the fiduciary obligation286. Concluded within this framework, the treaties merely solidify the fiduciary obligation, and the Indian Act and other ancillary pieces of legislation merely outline how the Crown is to fulfil this obligation toward aboriginal peoples287.

284 Dickson, above, at p. 10.

285 Royal Commission on Aboriginal Peoples, Preface to the Discussion Paper #1, "Framing the Issues" (October, 1992).

286 Brian Slattery, "First Nations and the Constitution: A Question of Trust" (1992), 71 Can. Bar Review 261 at 271-72; Arne Peltz & Luningning Alcuitas-lmperial, Fiduciary Obligations as a Source of Remedies Against Public Officials: The Aboriginal Context and Beyond (1993), at pp. 7-8.

287 Peltz and Alcuitas-lmperial, above, at p. 9.

79 The fiduciary obligation applies to both the federal and provincial governments under common law288, and is entrenched constitutionally in s. 35(1). The surrender requirement, and the responsibility it entails is also enshrined in the Indian Acf289. The nature of this fiduciary obligation, and the nature of the rights to which it applies are presented below.

2.1.1 The Nature of the Crown's Fiduciary Obligation

"Since Guerin, it now appears that there is a general fiduciary obligation owed by the Crown in right of Canada towards Indian bands in respect of the surrender of their land"290. This surrender requirement (i.e. that a band is prohibited from directly transferring its interest in reserve land to a third party291: it must first surrender this interest to the Crown) is the source of this fiduciary obligation292. In other words, in imposing this restriction, the Crown assumes the duty to deal with the land for the benefit

288 The federal Crown has responsibility for Indians and Lands Reserved for the Indians under s. 92(24) of the Constitution Act, 1867, and thus bears the main burden of the fiduciary obligation. Insofar as provincial Crowns have the power to affect aboriginal peoples, they also share in the obligation: Slattery, above, note 81, at p. 755.

289 In Guerin v. ft, [1984] 6 W.W.R. 481, Dickson J. stated that the Indian Act confirms "the historic responsibilities which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties".

290 Alexander Indian Band No. 134 v. Canada (Min. of Indian Affairs and Northern Dev.) (1990), 39 F.T.R. 142 (F.C.T.D.). These are the words of Strayer J., relying on the view adopted by Addy J. in Apsassin v. ft (sub. nom. Blueberry River Indian Band v. Canada [Min. of Indian Affairs and Northern Dev.]) [1988] 14 F.T.R. 161 (T.D.), in which he refused to find a fiduciary obligation with respect to reserve lands prior to surrender.

291 Section 37 of the Indian Act.

292 Guerin, above, note 289, at 495. Dickson J., writing for the court stated that certain provisions of the Indian Act reflected the historic Crown-Indian relationship, but the Act is not itself the source. Brian Slattery, above, note 81, maintains (at pp. 753-55) that the surrender requirement originates in the Royal Proclamation of 1763 (i.e. that aboriginal title cannot be alienated to anyone except by surrender to the Crown). William R. McMurty and Alan Pratt, Indians and the Fiduciary Concept, Self Government and the Constitution: Guerin in Perspective, [1986] 3 C.N.LR. 19 argue (at p. 31) that "a// dealings between Indian people and the Crown are clothed with a fiduciary aspect [emphasis added]."

80 of the surrendering Indians293. Upon surrender, the Crown must ensure that aboriginal peoples are protected in their use and enjoyment of the land. In addition, the fiduciary obligation regulates the manner in which the Crown exercises its discretion in dealing with the land on the Indians' behalf294.

Prior to Guerin, the predominant view was one of a general protective obligation, or that aborigines are, in effect, wards of the state, whose care and welfare are a political trust of the highest obligation"295.

Today, "the concept of wardship is giving way to the concept of fiduciary obligation, thus changing the focus of attention from the disabilities of those protected to the obligations of those doing the protecting."296

When is a fiduciary relationship recognized by the courts? The following criteria must be present in the fact situation being examined for a fiduciary relationship to exist:

1. the fiduciary has scope for the exercise of some discretion or power (i.e. there may be a trust relationship, but agency theory is rejected);

2. the fiduciary can unilaterally exercise that power or discretion so as to effect the beneficiary's legal or practical interests (i e. given that legal title vests in the Crown, the Crown can act like any owner in fee simple); and

3. the beneficiary is "peculiarly vulnerable" to, or at the mercy of, the fiduciary holding the discretion or power297.

As mentioned above, in imposing the surrender requirement, the Crown assumes the duty to deal with the land in question in the best interests of First Nations.

293 Guerin, above, note 289, at 499.

294 Guerin, above, note 289, at 502; Dube J. in Lower Kootenay Indian Band v. Canada (1991), 42 F.T.R. 241 (F.C.T.D.), noted that it is only upon surrender of reserve lands that a fiduciary obligation arises to regulate the manner in which the Crown exercises its discretion in dealing with the land on the Indians' behalf.

295 Sf. Ann's Island Shooting & Fishing Club v. R., [1952] 2 D.LR. 225 at 232. For a discussion of the concept of wardship, see Slattery, above, note 81, at p. 753.

296 Woodward, above, note 56, at p. 110.

297 Ibid., at 155.

81 However, this also duty entails a discretion to determine what these best interests

"At its narrowest, [the fiduciary obligation] is a device for controlling and purifying the exercise of a discretion to advise or negotiate"299.

The fiduciary obligation regarding the manner in which the Crown exercises its discretion in dealing with reserve lands, first advanced in Guerin, was expanded by the Supreme Court in ft v. Sparrow. The fiduciary obligation is now held to apply to all aboriginal peoples and not just Indian Bands. It is also not restricted to reserve lands or Guerin- type situations300. In Sparrow, the court declared that the nature of this obligation is connected to the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada301.

In other words, "the Governor in Council is not able to default in its fiduciary relationship to the Indians on the basis of other priorities and other considerations"302. Thus, both propositions result in the imposition of strict standards of trust-like conduct that will be supervised by the courts.

The words "recognized and affirmed" as they appear in the Constitution Act, 1982, incorporate the fiduciary relationship between governments and aboriginal peoples. Federal legislative power must be reconciled with the government's fiduciary obligations, and thus the government is required to bear the burden of justifying any legislation or regulations enacted pursuant to such legislation that has some adverse impact on any treaty or aboriginal right protected under s. 35. In addition, the Crown is obligated to discharge its onus to consult aboriginal peoples before the allocation of quotas and the setting of season dates in the harvesting year303.

298 Woodward, above, note 56, at pp. 113 and 230.

299 Ernest J. Weinrib, "The Fiduciary Obligation: Determining an Underlying Fiduciary Principle" (1975) 25 University of Toronto Law Journal, at 15.

300 The view that the fiduciary obligation extends beyond the narrow context of surrenders receives support from Kruger v. R. (1985), 17 D.LR. (4th) 591 at pp. 595-98.

301 R. v. Sparrow, above, note 149, at 163.

302 Kmger v. ft, above, note 300, at 623.

303 ft v. McPherson, [1992] 4 C.N.LR. 144 at 145 (Man. Prov. Ct.).

82 In a recent Federal Court of Appeal decision304, a claim for breach of fiduciary duty arising out of a land surrender was ultimately defeated by the Limitations Act. However, three judges agreed that the Crown had a fiduciary obligation towards the band previous to the land surrender. This contention departs from the conclusion reached in Guerin that the fiduciary obligations of the Crown arise only upon surrender. In Apsassin, it was also noted that the Crown's obligation consists of the duty to advise the band whether it is in their best interests to surrender a reserve for sale or lease. Thus, this case stands for the proposition that the Crown's responsibility to act in a fiduciary capacity towards aboriginal peoples is general and ongoing, and does not arise only upon the surrender of land.

If the Crown breaches the fiduciary obligation, it must make good the loss suffered in consequence305. The onus of showing a breach is not easily discharged, as the failure of the bands in the Apsassin306 and Kruger307 decisions demonstrates.

The existing fiduciary relationship has been summarized by MKO in the following diagram:

"NEW" FEDERAL (eg THE "FOUR PILLARS") POLICIES

THE "CEMENT" FIDUCIARY TRUST AND OBLIGATIONS CASE LAW (GVERIH, SIMQH, SIOUI. SPARROW! THE FOUNDATION S. 35 OF THE CONSTITUTION ACT OF THE EXISTING TREATIES AND LAND CLAIM SETTLEMENTS RELATIONSHIP SOVEREIGNTY AND ABORIGINAL TITLE

304 Apsassin v. R., (February 9, 1993) Registry No. A-1240-87.

305 Guerin, above, note 289, at 505.

306 Above, note 304.

307 Above, note 300.

83 2.1.2 The Nature of Aboriginal and Treaty Rights: Substantive Issues

A precise definition of aboriginal rights was attempted in AG. Ont. v. Bear Island Foundation30B. Steel J. offered the following (at p. 360):

To hunt all animals for food, clothing, personal use and adornment, to exclusively trap furbearers, which right was enjoyed by the individual family, and to sell the furs, to fish, use herbs, berries, maple sugar and other natural products for food, medicines and dyes, to use ochre and vermilion for dyes, to use turp, quartzite for tools and other implements but not extensive mining, to use clay for pottery, pipes and ornaments, to use trees and bark for fires, canoes, sleighs and snowshoes."

In less "generic" terms, aboriginal and treaty rights are sui generis**: they are unique, of their own class and cannot be defined by resorting to analogies. Viewed as rights in personem (i.e. personal rights, as opposed to property rights), these rights have been described simply as rights to "enjoy the fruits of the soil, the forest and of the rivers and streams"310 including the right to hunt, fish and trap thereon311.

These rights are collective in the sense of communal occupation, but individual in the sense that members of the aboriginal group have personal harvesting rights312.

Following ft v. S/mon313, treaties are generally understood to entrench a legal relationship between the Crown and aboriginal peoples. A treaty is a unique contract: it is an agreement sui generis which is neither created nor terminated according to the rules of international law, nor is it merely a contract according to the principles of contract law314.

308 (1984) 15 D.LR. (4th) 321.

309 Guerin v. ft, [1984] 2 S.C.R. 335 at 382.

310 Calder v. AG.B.C., [1973] S.C.R. 313 at 352.

311 The Canadian Bar Association, Aboriginal Rights in Canada (1988), at p. 18, note 40.

312 Ibid., at p. 18.

313 [1985] 24 D.LR. (4th) 390.

314 Ibid., at p. 404.

84 A treaty is to be interpreted in a manner that does not dishonour the Crown315. A given treaty must also be construed liberally, i.e., in the sense in which it would naturally be understood by the aboriginal signatories316. Furthermore, treaties impose and confer continuing obligations317, and thus they must be interpreted meaningfully in the present day. For example, methods of hunting, fishing and trapping may change with the times: the provisions guaranteeing harvesting rights cannot be interpreted as meaning that only traditional harvesting methods may be employed318.

2.1.2.1 Constitution Act. 1982

Part II of the Constitution Act; 1982 contains the substantive recognition of the unique position of the aboriginal peoples of Canada. It not only includes a positive assertion of legal rights within the Constitution as the "supreme law" of Canada by virtue of s. 52, but it also ensures a distinct role in the current constitutional amending formula, to a limited degree319. As a result of amendments negotiated during a First Ministers' Conference on Aboriginal Constitutional Matters in 1983, and proclaimed in force in 1984 through the Constitutional Amendment Proclamation, 1983, the relevant provisions read as follows:

Rights of the Aboriginal Peoples of Canada 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) 'treaty rights' includes rights that now exist by way of land claims agreements or may be so acquired.

The rights acquired under a land claims agreement are of the same constitutional nature as treaty rights, and are confirmed by s. 35(3) of the Constitution Act, 1982. Land claims agreements are considered to be contemporary treaties: they involve the voluntary cession of certain rights to land in return for guaranteed promises of "new" rights.

315 R. v. White (1965), 52 D.LR. (2d) 481.

316 Ncwegijick v. R., [1983] 1 S.C.R. 29 [Fed.].

317 Hay River v. R. (1979), 101 D.LR. (3d) 184 at 186 (Fed. T.D.).

318 R. v. Simon, above, note 313.

319 Hamilton and Sinclair, above, note 103, at p. 152.

85 Comprehensive land claims agreements do not, however, have relevance in Manitoba, since all First Nations in Manitoba are treaty signatories. Thus, s. 35(3) is not a source of aboriginal rights in Manitoba.

Six years after the patriation of the Constitution, neither a judicial nor an academic consensus on the meaning of the words in s. 35(1) had been reached320. Litigation in recent years has, however, helped to clarify the meaning and indicia of aboriginal and treaty rights, but the provision is still in a period of legal evolution.

The term aboriginal and treaty rights is qualified by "existing" in s. 35(1). The presumed meaning of this word as it is intended is best understood by examining the reasons for its introduction. On January 30,1981, the three federal parties agreed to the inclusion of a clause (s. 34) which stated:

The aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmedL1321

In the same year, an objection to this clause was raised by one provincial premier. It was argued that if the corpus of rights referred to was not fixed with respect to a particular moment in history, then "new" rights could be continually added to it. Thus, the qualifier "existing" was inserted to limit aboriginal rights to those that existed prior to the patriation of the Constitution Act, 1982.

"Existing aboriginal and treaty rights", then, refers to those rights that derive from the fact that aboriginal peoples were present in Canada prior to the arrival of the European colonists as they were bounded into a fixed set on April 17, 1982. In ft v. Sparrow, "existing" means "unextinguished", and thus the "frozen rights theory"322 which would protect only the rights as regulated in 1982 was rejected323.

Furthermore the court held that "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time .

320 R. v. Agawa, [1988] 3 C.N.LR. 73.

321 Cited in Asch, above, note 61, at p. 7.

322 The "frozen rights theory" is discussed in Woodward, above, note 56, at p. 73.

323 ft v. Sparrow, above, note 149, at 171.

324 Ibid., at 161. The phrase, "are hereby recognized and affirmed", then, places a constraint on the Parliament of Canada and provincial legislative assemblies and other members of the body politic to act in accord with the acknowledgement of these rights325.

In principle, there are many kinds of rights that could be the subject of the statutory definition326. Several important references to aboriginal rights exist in the Constitution Act, 1982, all of which use different wording and cannot be tied to a single statutory definition327. However, it has been argued that the usage of the term in Canada limits the kinds of rights to two possibilities:

1. rights of self-government and self-determination; and

2. property rights in land and/or rights to hunt, fish and trap328.

In its first interpretation of s. 35, the Supreme Court of Canada declared that aboriginal rights must be given a "purposive, generous and liberal interpretation"329. In other words, the direction given in R. v. Sparrow is that courts must be sensitive to the aboriginal perspective on the meaning of the aboriginal rights at stake. In response to Ron Sparrow's argument that a particular federal regulatory requirement was inconsistent with a s. 35(1) aboriginal right to a food fishery, the Court recognized that constitutional encroachment "gives a measure of control over government conduct and a strong check on legislative power"330. In other words, governmental regulation may be strictly limited in relation to the exercise of aboriginal rights331.

325 Asch, above, note 61, at p. 8.

326 ibid., at p. 6.

327 These references are discussed in Woodward, above, note 56, at p. 134.

328 Asch, above, note 61, at p. 8.

329 ft v. Sparrow, above, note 149, at p. 179.

330 Ibid., at 181.

331 Robert Boardman, "Introduction" in R. Boardman (ed.), Canadian Environmental Policy: Ecosystems, Politics, and Process (1992), at p. 18.

87 The Court suggested an analytical process for determining the constitutional validity of government actions332. First, the aboriginal person or group challenging a given piece of legislation bears the onus of proving a prima facie infringement of an aboriginal right— Questions relevant to this determination include:

1. whether the limitation is unreasonable (e.g. whether the fish catch is reduced below the reasonable food and ceremonial needs of the aboriginal claimants);

2. whether the regulation imposes undue hardship (e.g. whether undue time or money per fish caught is required to observe the regulation); and

3. whether the regulation denies rights holders the preferred means of exercising their rights334.

Second, if a prima facie infringement of an aboriginal right is established, the Crown bears the burden of justifying governmental regulation335. The process of justification has two components. First, the Crown would have to establish a valid legislative objective (e.g. the need to conserve and manage a natural resource). Second, assuming a valid objective is found, the Crown has to demonstrate a resource allocation that is consistent with the government's fiduciary obligation toward aboriginal peoples. Additional questions to be considered include:

1. whether there has been as little infringement on aboriginal rights as possible;

2. whether, in a situation of expropriation, fair compensation is available; and

3. whether the aboriginal group has been consulted as to the implemented conservation measures336.

332 Ibid.

333 Peter J. Usher, "Some Implications of the Sparrow Judgement for Resource Conservation and Management", Alternatives. 18(2): 20-21.

334 ft v. Sparrow, above, note 149, at 182.

335 Ibid., at 183.

336 Ibid., at 187.

88 Most leaders held office only for a specific duty and length of time for instance, a certain leader would be selected for a certain moose or caribou hunt because of his special skills as a hunter and organizer, and the people could respect his leadership and authority for this particular hunt

However, at the end of the hum, he ceased to be a leader and thus had no further authority. Those positions of leadership had no authority in any other capacity apart from the specific duty.

The next level of organization was the tribe which was composed of several clans. Most tribes were autonomous under their own chiefs who by their courageous exploits, wisdom, other abilities and qualities had won the respect and support of others. However, they gave advice rather than orders; councils of leading men made decisions based on unanimous agreement

The tribal council consisted of members from each individual clan. Each tribe had territory held in common by its members consisting of settlements as well as hunting and fishing areas.

A tribe had its own dialect or language, Its own spiritual beliefs,rites of worship and specific spiritual festivals during which dancing played an important part The common land of each tribe was usually respected by neighbouring tribes.

The most important aspect of the tribal council was its governing functions. The tribal council met regularly in public. Every man and woman had theright to attend council meetings and take part in the discussions. The council sat in public sessions attended by Other members of the tribe who had theright to join in the discussion. Among most tribes, all decisions were reached unanimously.

The council set policies with regard to the economic affairs of the tribe and established working relationships with neighbouring tribes. For the most part the political organizations of the northern tribes remained at the tribal /eve/."341

On August 14, 1981, the 25 northern-most Manitoba First Nations withdrew from the province-wide Four Nations Confederacy to develop a stronger voice for the aspirations of northern Manitoba First Nations. The Manitoba Keewatinowi Okimakanak (MKO) was incorporated on October 9, 1981 as a Council of the 25 First Nations of northern Manitoba, represented in Council by their Chiefs, Elders, and Councillors.

341 D'Arcy Linklater, Nelson House First Nation, Manitoba First Nations Self- Government, Discussion Paper 3(c), prepared for the Keewatin Tribal Council (December 1991), at pp. 2-3. 100 Today, MKO represents approximately 34 000 on-reserve Treaty First Nations' people, population and access statistics for the 25 communities are presented in Table 1.

In addition to the 25 First Nations who MKO directly represents, 3 Tribal Councils (all providing services to the member MKO First Nations) are affiliated with MKO. These are: the Swampy Cree Tribal Council (7 First Nations); the Keewatin Tribal Council (11 First Nations; and the Island Lake Tribal Council (4 First Nations).

MKO First Nations are increasingly asserting jurisdiction, and are doing so without constitutional change: MKO First Nations contend that self-government is an inherent right under the meaning of s. 35 of the Constitution Act, 1982.

Achieving self-government in the MKO region is the primary objective of the MKO organization: practically all of the activities MKO and its member First Nations engage in are intended to support this primary objective. The principles of self-government and recommendations for its implementation are presented in detail at Section 2.5, below.

More specifically, MKO strives to:

"... promote, advance and protect the interest of the membership and to do all things that are lawful, incidental and conducive to the attainment of the undertakings of the corporation; and, in particular

preserve and advance the culture and society of First Nations' peoples; protect and expand First Nation treaty and aboriginal rights; protect and advance the powers, authority and autonomy of member First Nations' councils, and; promote and advance the economic, educational, social and cultural goals of First Nations' people.**2

The MKO Constitution sets out the relationship between MKO (as well as that of the Tribal Councils) and individual member First Nations as well as the role of MKO as a regional government:

The highest form of Government is the individual First Nation, which is represented by Chief and Council;

The... First Nation... is... a sovereign and independent nation... and represents a distinct and unique community;

101 342 Manitoba Keewatinowi Okimakanak, Inc., A Brief Background (December, 1992), at p. 2. ... any [First Nations'] organization on a tribal, regional, provincial and/or national dimension does not constitute any authority of First Nations' Government, but rather, a linkage or part of a network of [individual First Nations];

Therefore, the Manitoba Keewatincwi Okimakanak, Inc. is not a higher authority over First Nations' authority, but rather one that facilitates the voice of First Nations' government the Chief and Council.*43

The MKO approach to regional government is not one of establishing centralized authority, but rather of furthering the objectives and aspirations of the MKO member communities. In other words, MKO serves as the body of Council for the member First Nations, while providing a specialized Secretariat that carries out the instructions of the MKO Assembly of Chiefs on matters of common concern to all MKO Rrst Nations.

The MKO Secretariat is directed and managed by a 7 member Executive which is elected from the members of the Assembly each year. Each member of the Executive holds one or more portfolios, or areas of responsibility such as, Employment and Economic Development (including Natural Resources and Environment); Health and Child Welfare; Justice; Land Claims and Treaty Land Entitlement; Housing and Bill C-31; Social Development (including Language and Culture); Education, Recreation, Finance and Administration; and Self-Government and Treaties.

MKO is viewed by the 25 First Nations and the 34 000 aboriginal persons it represents as a policy-oriented organization, one with a strong emphasis on advocacy. The MKO Assembly recognizes that the analysis of issues and policy is much more than the identification and presentation of problems: MKO must identify mechanisms and generate solutions which advance the objectives of the MKO Rrst Nations and membership.

MKO is "Keewatinook Okimowin", the Rrst Nations' government of northern Manitoba. The MKO Assembly and Executive have accordingly placed a priority on skills development and training to support high-quality research, policy analysis, communications and program administration capabilities.

For each objective of the MKO Assembly, the MKO Executive and Secretariat seek to develop policies, mechanisms, facilities and administrative capacity. The overriding objective is to ensure that most initiatives established at the MKO regional level will be decentralized to the community level. To this end, MKO pursues the policy, legal, training and financial resources to ensure eventual community control of all programs and services.

343 Ibid. 102 In essence, the MKO approach to the provision of government services is to identify objectives through First Nations' input and direction; to design and develop mechanisms and solutions; to act as advocate for the necessary policy, legislative and financial framework; and, in some cases, to implement and manage projects or programs on a pilot, or interim, basis.

In addition, MKO often approaches large-scale and long-term objectives, such as First Nations' control, administration and delivery of health care services on a partnership basis with MKO First Nations and Tribal Councils. This is carried out through an examination of the required components of an overall initiative by the MKO Assembly and through the enlisting of the full support and involvement of MKO and MKO First Nations in all aspects of each common objective.

MKO also recognizes that strengthening the existing relationship between MKO First Nations and government is a central feature in the achievement of MKO's objectives. Even though there is a large number of specific issues of concern to MKO First Nations, the basic objectives of MKO as expressed to government, can be restated simply as:

1. promote and protect the aboriginal and treaty rights of the First Nation membership;

2. ensure the health, development and well-being of the First Nation membership and of each MKO community;

3. ensure the sustained use and development of the land and natural resources within traditional territories; and

4. establish direct control over the affairs of the First Nations' membership - under the authority of First Nations' Law and Self-Government.

The MKO approach to First Nations' government focuses on recognition of the interrelated well-being of the MKO communities and the continued productivity of traditional lands. As a result, MKO has developed expertise in the following areas: treaties, justice and aboriginal government; health, community and child and family services; natural resources and resources management; and communications.

2,2,1 Treaties. Justice and Aboriginal Government

As mentioned above (Section 1.1.11), MKO First Nations are signatories to Treaties 4, 5, 6 and 10 and their adhesions. A long and varied record of experience in treaty issues is shared by these First Nations.

103 In addition, MKO and MKO First Nations were active participants in: the Constitutional Conferences which took place between 1983 and 1987; the opposition to the Meech Lake Accord and the subsequent Commission and negotiations leading up to the Charlettown Accord; and the recent Manitoba Aboriginal Justice Inquiry.

MKO also actively promotes and negotiates arrangements to implement traditional justice systems which recognize the needs of the community and respond to "offenders" in the spirit of community healing.

2.2.2 Health. Community and Child and Family Services

The MKO Health Program conducts many activities that relate to the nature, quality and provision of community, child and family services. This work includes facilitating the "devolution" of health care service delivery to First Nations while ensuring that traditional approaches to community physical, emotional and spiritual well-being are incorporated. MKO also conducts a respected pilot project concerning Solvent and Substance Abuse as well as an AIDS Education project The MKO Assembly also has the mandate for child care services in northern Manitoba, through the Awasis Agency.

2.2.3 Natural Resources and Resource Management

The extensive land base of the MKO communities (an area that is roughly two- thirds of Manitoba) and the intensive continuing use of these lands inspired MKO to develop a Natural Resources Secretariat (NRS). NRS carries out an in-house research and information management function related to the water, fisheries, wildlife, timber, mineral, land and other resources upon which the MKO member First Nations have traditionally relied. NRS has developed a specialty in Geographic Information Systems (GIS) to support the documentation of extensive oral maps of the traditional ecological knowledge (TEK) possessed by the MKO membership. The NRS GIS is supported by an Image Analysis System using remotely-sensed (satellite) data. The resulting MKO GIS database is unique in Manitoba and is being used to support the full spectrum of land and natural resources analysis, joint-management agreement development, environmental assessment and other negotiations.

2,2-4 Communications

The isolation of 12 MKO communities and the widely distributed nature of the remaining communities meant that MKO needed to establish a comprehensive communications and consultations capability.

104 In addition, MKO and MKO First Nations were active participants in: the Constitutional Conferences which took place between 1983 and 1987; the opposition to the Meech Lake Accord and the subsequent Commission and negotiations leading up to the Charlettown Accord; and the recent Manitoba Aboriginal Justice Inquiry.

2.2.2 Health. Community and Child and Family Services

The MKO Health Program conducts many activities that relate to the nature, quality and provision of community, child and family services. This work includes facilitating the "devolution" of health care service delivery to First Nations while ensuring that traditional approaches to community physical, emotional and spiritual well-being are incorporated. MKO also conducts a respected pilot project concerning Solvent and Substance Abuse as well as an AIDS Education project. The MKO Assembly also has the mandate for child care services in northern Manitoba, through the Awasis Agency.

2.2.3 Natural Resources and Resource Management

2.2.4 Communications

The isolation of 12 MKO communities and the widely distributed nature of the remaining communities meant that MKO needed to establish a comprehensive communications and consultations capability.

94 MKO information coordinators communicate in three distinct aboriginal languages and are supported by native language broadcasting, press and newsletters, automated fax, database access, modem communication and desktop publishing.

Given this considerable technical expertise, the MKO Executive often employs a "Working Group" approach in its relations with federal and provincial governments. The Working Group approach provides the opportunity for government and MKO technicians to share information, explore options and develop recommendations for both government and First Nations' policy-makers. This has proven to be an extremely effective method of developing workable mechanisms and solutions.

Prior to the inception of the Working Group approach, MKO proposals to government typically received responses that were developed entirely in isolation from MKO. Today, an improved understanding of both government and MKO priorities, an expedited decision-making process and generally improved relations have been achieved. The MKO Executive describes the Working Group concept as an opportunity for "coffee pot and shirt-sleeves" contact: the Working Group approach increases the amount of contact between government and MKO technicians, generates trust and familiarity, and provides government with the opportunity to work with MKO at close quarters and recognize the considerable knowledge and capability of MKO staff.

Within the confines of the existing relationship between First Nations and federal and provincial governments, MKO has demonstrated its expertise in the areas mentioned above through a number of activities. These activities are explored before recommendations for a strengthened relationship between MKO and federal and provincial governments are presented.

2.3 CONTEMPORARY CONCERNS AND ACTIVITIES IN THE MKO REGION

2-3-1 Justice and Law: The Aboriginal Court System

"Before the Europeans arrived, our Indian society was governed without police, without kings and governors, without judges, and without a ruling class.

Disputes were settled by the council, among the people concerned. Crimes were virtually non-existent and every able bodied person was required to contribute to society.

In the traditional society, the emphasis was on mediation not punishment and that concepts of property belonged to the community and not to individuals. This does not mean that native standards were softer rather they were different The tribes often acted sternly against wrong doers when the need arose. Under our tradition, banishment from the tribe was not an unusual punishment...

95 All tribes had chiefs and semi-military secret societies which performed various functions. For example, one such group might serve as a policing body to maintain law and order.

Order and discipline were maintained in various ways. In the first place the individual had a strong sense of his/her responsibility to the clan and to the tribe. Also,... public¿344 shaming and banishment were effective in discouraging unsanctioned behaviour.

The Report of the Aboriginal Justice inquiry of Manitoba is endorsed in full by MKO and MKO First Nations. Rather than repeat its recommendations here, the Report should be consulted for a detailed description of the justice system and its effects on aboriginal peoples in Manitoba.

Based on the recommendations of the Report of the Aboriginal Justice Inquiry of Manitoba and the observations made by Ross945, the Assembly of Manitoba Chiefs (AMC), the Federal Department of Justice and the Manitoba Department of Justice agreed in July, 1993 to adopt a tripartite approach to the establishment of aboriginal court "pilot projects" in Manitoba. To guide the development of the aboriginal court system, AMC proposed to adopt the following principles, as set out in the Province of Manitoba, "Aboriginal Justice Initiative":

1. recognize the diverse circumstances of aboriginal peoples within Manitoba;

2. assure aboriginal participation in the design and development of the court;

3. conduct court business in aboriginal languages;

4. consider culture and community standards in the design of the court process and dispositions available to the court;

5. deliver justice services to all citizens of aboriginal ancestry, regardless of status or location; and

6. honour traditional methods of dispute resolution346.

344 D'Arcy Linklater, above, note 341, at pp. 3-4.

345 Above, note 13.

346 Hamilton, above, note 209, at p. 7.

96 Each court system must be community-specific and "should not be subject to administrative direction from any of the provincial courts or from the Department of Justice."347

However, as experience is accumulated in implementation, participants in the operation of the aboriginal court system may wish to create an "Aboriginal Court Council" to which they can appeal for assistance in addressing problems that defy resolution at the local level. AMC proposed that the Council be comprised of an aboriginal court judge; an administrator; one person appointed each by the AMC, the Manitoba Metis Federation, the Indigenous Women's Collective, the provincial and federal Ministers of Justice; and a chairperson or executive director chosen by the seven members of Council348.

Aboriginal communities within the MKO region have demonstrated a willingness and preparedness to experiment with the aboriginal court system.

2.3.2 The Healing Circle: Community. Family and Children

"In the past, our people had strict rules, using our culture as a basis for life, they would bestow their guidance upon their children. If they wanted children to grow up and be responsible members of society, they taught them to be good, respect other people and especially the elders.

The children were taught to develop the inner strength to be able to meet any situation and still be on friendly terms with the other human beings. This is the kind of counsel that were given to children as they grew up and if they grow up this way then they would be able to raise their own children property.

Then and only then, will there be a balance with other people around them and with everything else and therefore, will be able to survive.

This is here the tribal definition of the role of an Indian government derives from and used as a model for a well functioning extended family unit

The elders saw that a well functioning family unit by careful planning and consideration ensures actions that hopefully will bring the most satisfaction to each of its members. At the same time, the family's long term survival was not sacrificed to short term advantages.

347 Ibid., at pp. 8-9.

348 Ibid., at p. 9.

97 In most tribes, the family meant not only parents but also grandparents and other immediate relatives. It was the family not only the parents who were responsible for the upbringing of children.

Sharing was a natural characteristic of our people's way of life. Each member recognized his/her responsibility for contributing to the tribes welfare when required and individual profit making was unknown.

Everyone was equal in rights and benefits. Very few members set themselves apart from the tribe or attempted to accumulate material wealth tor themselves.

There were no poor and needy by comparison with other members and likewise no wealthy and privileged as a result, there were no factions among the people.

Members of the tribe were bound to give each other assistance, protection, and support which was not only a part of their economic system but was a part of their spirituality.**9

MKO First Nations share a tremendous sense of community and family, and a view of children as equal members of each community. The traditional means of teaching - with the grandparents teaching the young and the parents providing for the family - remains today in MKO communities. This system has ensured continuity and unity in aboriginal societies, and has created a "healing circle" premised on community, stewardship and rehabilitation, rather than on individuality, private property and punishment.

Children raised by non-interfering parents become "layered" into the extended family: they become integral, as opposed to autonomous, parts of the family350. Each person raised on a remote reserve is brought up to feel a personal obligation to contribute to the perpetuation of the home community and to its sustaining vision. Non-aboriginal peoples praise parents who raise their children to be autonomous, whereas such parents would be judged as failures by aboriginal standards351. In fact, in some aboriginal societies, the greatest way for a person to praise another is to say, "he/she takes care of his/her relatives"352.

349 D'Arcy Linklater, above, note 341, at pp. 2-3.

350 Ross, above, note 13, at p. 19.

351 Ibid., at p. 128.

352 Ibid.

98 Aboriginal cultural values have for many years been viewed from European-Canadian standards. As a result, many erroneous beliefs about the role of the aboriginal family and the status of children have been generated by non-aboriginal societies. For example, many non-aboriginal observers have labelled aboriginal parents as negligent, since aboriginal children are given a great deal of independence and freedom353. Such ethnocentrism has resulted in the removal of aboriginal children from their natural parents and the placement of these children in residential schools and in the homes of non- aboriginal adoptive parents.

In the wake of government efforts to assimilate aboriginal peoples into European- Canadian society, First Nations are striving to re-establish their sense of community, and preserve their distinctive languages, cultures and customs. MKO First Nations have always maintained that the healing of First Nations' peoples must come from within, and not without, the aboriginal communities. The efforts and proposals that MKO First Nations have made to regain a sense of pride and community are explored below. The factors that have led to these initiatives are also revisited.

2.3.2.1 Child Welfare

As discussed above (Section 1.2.5), after the residential schools system was discredited, the child welfare system became the new method of colonizing aboriginal peoples. The child care system that persisted in Manitoba until the early 1980's was "fragmented, discriminatory, and at the mercy of political and jurisdictional disputes"354, and was therefore unacceptable and disruptive to aboriginal communities. In 1982, under intense pressure from the media and aboriginal leaders, the Manitoba government agreed to impose a moratorium on the export of aboriginal children to areas outside the province. A provincial inquiry, lead by Judge Kimelman, was appointed to study the fate of aboriginal children in the child welfare system355.

Kimelman concluded that the child welfare system failed to recognize that in aboriginal communities, the extended family is the first resource for the nurturing and the protection of children356.

353 York, above, note 165, at p. 217.

354 Manitoba Department of Health and Social Development, Report of the Indian Child Welfare Sub-Committee, Manitoba, to the Tripartite Committee (1980), at p. 1. Cited in Hamilton and Sinclair, above, note 103, at p. 522.

355 York, above, note 165, at p. 214.

356 Hamilton and Sinclair, above, note 103, at p. 521.

99 Grandparents, aunts and uncles expect the demands and rewards of raising a new member of the family. Thus, "a worker who did not understand the Indian concept of the child as a member of the total community, rather than as the exclusive property of a single set of parents, might perceive that child to be abandoned."357

In 1984, as a result of the Kimelman inquiry, the Manitoba government launched a campaign to repatriate children to their home communities358. Many of the adoptions were unsuccessful, as aboriginal children had rebelled, left their adoptive parents, turned to alcohol, drugs and crime, and required professional treatment because of their problems in adjusting to non-aboriginal homes359. As a result of repatriation efforts, hundreds of adopted aboriginal children have found their way back to their home communities, but many more are still missing360.

Another attempt to eliminate systemic discrimination and cultural bias in Manitoba's child welfare system included the creation of six aboriginal-controlled child welfare agencies.

Established under tripartite agreements between the Manitoba government, the federal government and the tribal councils or political organizations of each region, these agencies cover almost every reserve in Manitoba. Tailored to the traditional customs and beliefs of aboriginal communities, these agencies have established aboriginal foster homes, recruited aboriginal adoptive parents and have set up emergency receiving homes on each reserve . The Awasis Agency, and its spin-off, the Cree Nation Child and Family Caring Services are currently operating in the MKO region. An introduction to these agencies is presented below.

THE AWASIS AGENCY

For all First Nations and tribal councils in Manitoba, the eventual aim was to assume complete control of all the social services delivered to the communities362. MKO was established in 1981 largely for this purpose: child welfare was a primary concern among First Nations in northern Manitoba.

357 Judge Edwin Kimelman, cited in York, above, note 165, at p. 217.

358 York, above, note 165, at p. 207.

350 Ibid., at pp. 207 and 218.

360 Ibid., at p. 225.

361 Ibid., at p. 220.

362 Hamilton and Sinclair, above, note 103, at p. 522.

100 Significant progress has been made in all of these areas, and work is now being conducted in the areas of Family Assessment Models and legal and health care services policy and procedures.

With respect to the SERVICES TO FAMILIES PROGRAM CENTRE, a case-planning and evaluation approach, as opposed to a crisis-oriented mode is adopted. The innovative concept of "community initiatives" embraces the Agency's overall philosophy of prevention and family preservation. As a Child Welfare Prevention Program, the Services to Families Centre and the related program centres are the first of their kind in Manitoba. The programs address community needs and give more control to the local community in terms of planning and developing prevention programs366.

The PERMANENCY PLANNING PROGRAM CENTRE was created in 1993 to assist supervisors and Child and Family Services workers in implementing plans for the many permanent wards of the Agency. Permanency planning is about keeping families together and keeping children in their home communities. Regional staff are no longer responsible for both foster care and adoption: instead, more staff has been allocated to the communities, thereby increasing the rate at which service is received, and reducing the number of children in care.

At present, Cross Lake, Norway House and Nelson House have permanent ward/adoption workers and legal secretaries in their communities. The Island Lake Tribal Council communities have a foster/adoption worker in each community and a legal secretary in the Garden Hill office. As part of the overall decentralization process, the legal and administrative work which was previously completed in Thompson is gradually being transferred to these communities367.

The curriculum of the CHILD PROTECTION PROGRAM CENTRE is currently being developed around the concept of the "Medicine Wheel" (discussed below at Section 2.3.2.3). The primary goals and objectives of this program are:

1. the provision of coordinated and consistent case work utilizing the accountability Case Management System;

2. the utilization of clear supervision of child abuse case management, practice and treatment applicable to the specific surroundings and availability;

3. the utilization of community resources, natural helpers and healers;

366 Nancy Martin, Services to Families Coordinator, MKO, Annual Report (1993).

367 Marlene Salamandyk, Permanency Planning Coordinator, MKO, Annual Report (1993).

102 4. the development of physical resources such as safe homes and ongoing planning for localized treatment centres in the north; and

5. the promotion of community ownership of the existing problems of child abuse through: a) utilization of the accountability Case Management Model in implementing treatment plans for the family unit, victims and offenders; b) the provision of continuing education and awareness programs applicable to community needs for foster parents, community leadership and its members; and c) the implementation of child abuse/protection teams of which members are multi-disciplinary including respected elder: membership is from each local community.

At present, the Child Protection Program has realized many of these goals and objectives. A Child Protection Team is operating in Thompson, and has been very effective in dealing with child abuse cases.

In the coming year, it is anticipated that a trained Child Protection Worker will be placed in each M KO community. Each worker will be responsible for the following:

1. addressing the issues of child abuse and protection;

2. establishing the family unit where it is possible to do so;

3. working to reduce the number of children taken into care;

4. establishing empowerment and responsibility to each local community in the best interests of the children; and

5. maintaining traditional values and cultural awareness by utilizing natural helpers as well as the knowledge of the elders.368

The RESOURCE SERVICES PROGRAM CENTRE was developed in July, 1992 as a means of developing the Agency's capacity in the provision of specialized services. The areas of responsibility are as follows:

368 Verna Saulteaux, BISW, Child Protection Coordinator, M KO, Annual Report (1993).

103 1. Special Support Requests

a) receive, review and approve Special Support Requests. The Resource Sen/ices Centre, with the approval of the provincial government, is able to approve up to a maximum of $50.00 per diem for special needs children. This process results in more foster placements of children than placements in institutional settings;

b) receive, review and approve placement referrals for children entering into residential care. Resource Services provides consultation in the selection of residential care facilities;

c) receive, review and approve requests for Initial Psychological Assessments. Resource Services conducts reviews of each child's psychological assessment history, and maintains a list of Awasis Agency-approved psychologists and traditional counsellors to provide services to children in care.

¿L Special Needs Worker

Created in May, 1993, this position involves advocating for services and support on the behalf of special needs children. The special needs worker is responsible for carrying a case load of 10-15 children369.

The Awasis FOSTER CARE PROGRAM CENTRE was developed to provide a holistic approach to foster care and to reflect the social, economic and political needs of foster care within the jurisdiction of the 25 MKO First Nations. In the summer of 1992, the Agency created Local Foster Care Worker positions to assist in the development of the program centre. Each Local Foster Care Worker contributes beyond the basic administrative processing of foster care applications and home studies, and each Worker is building his/her foster care program to reflect the cultural values and aspirations of his/her home community.

At the MKO region level, two Senior Foster Care Trainers/Instructors are facilitating the compilation of a resource manual with the Local Foster Care Workers. Such a manual is designed to cover the areas of training, child-rearing practices and discipline, among other things. This is being done in an attempt to address the needs of foster parents and to ensure that the Agency and foster families provide a safe, stable and nurturing environment for First Nations' children in care370.

369 Robert Lafontaine, Resource Services Coordinator, MKO, Annual Report (1993).

370 Debbie Spence, Foster Care Coordinator, MKO, Annual Report (1993).

104 All of the six Program Centres described above are interconnected: they work as one system. As a result of these collective efforts, activities and programs, aboriginal communities within the MKO region have developed more appropriate and culturally- sensitive services through greater local control.

THE CREE NATION CHILD AND FAMILY CARING AGENCY

In contrast to the tendency of non-aboriginal government organizations to centralize operations, MKO First Nations seek to ensure that while initial service delivery mechanisms may be regional in scope and under the purview of the entire MKO Assembly, community-based control and delivery of services is achieved.

Such an objective is realized through the following stages:

1. developing the necessary policy, legislative and financial arrangements with government to implement the initial programming; and

2. implementing the necessary training and capacity development initiatives to ensure that programs can be effectively delivered and administered at the community level.

As part of the original plan of the MKO Assembly to provide for community-based child and family services, the Swampy Cree Tribal Council member First Nations informally withdrew from the Awasis Agency and commenced separate operations on October 1, 1992 under the name of the Cree Nation Child and Family Caring Agency. As part of this decentralization and in recognition of the need for complete community control, MKO is assisting in obtaining a separate mandate for Cree Nation Child and Family Caring Services similar to the original tripartite agreement that created Awasis in 1983. The financial operations of the Cree Nation Child and Family Caring Agency will continue to be reflected in the financial statements of the Awasis Agency until such time as it receives its formal mandate to operate a separate agency.

2.3.2.2 Health Care

Jurisdiction over aboriginal health care is divided in Canada: "Indians and Lands Reserved for the Indians" fall under the purview of the federal government371; health and social

371 The Constitution Act, 1867 (s. 91.24) provides the legislative authority for the federal government's jurisdiction over aboriginal peoples, and the Indian Act (s. 73) empowers the federal government to make regulations to "prevent, mitigate and control the spread of diseases on reserves... to provide medical treatment and health service for Indians to provide compulsory hospitalization and treatment for infectious diseases... and

105 services are considered to be provincial responsibilities372. MKO First Nations assert that access to adequate health care services is a inviolable treaty right, and therefore the responsibility of the federal government. However, provincial and federal governments maintain that health services are merely a "moral" obligation. In any case, the level of health services provided to First Nations' peoples in Manitoba has been and continues to be far below that provided to urban and rural non-aboriginal Canadians373. MKO First Nations strongly believe that through the exercise of self-government, with the assistance of federal funding, aboriginal people will be able to control the problems to which ill-health is linked.

In recent years, health services to MKO First Nations' peoples have been repeatedly cut to the point of crisis, placing them at risk and further reducing the quality of life in their communities. At present, health status indicators in MKO communities are likened to those in Third World countries.

Prior to the dissolution of the House of Commons and the October 25, 1993 federal election, the Federal Government restructured its national Health portfolio which - according to the former government - would provide an effective health care system to all Canadians. The government stated that:

The Health Portfolio is being redesigned to focus on issues related to the health and safely of Canadians. Given the aging population, concerns about the viability of the health system, and such pressing concerns as AIDS and drug use, issues affecting the health of Canadians are more important than ever before.

The new structure will enable the Minister and the department to devote full attention to the fundamental policy and funding challenges of maintaining a high- quality, affordable health system in Canada, including:

* health protection and consumer safety, * financial support to provinces and territories tor insured health care; * delivery of health services to Indian Bands, and the Inuit; and * the promotion of fitness."

to provide for sanitary conditions on reserves."

372 Section 92 of the Constitution Act, 1867.

373 Manitoba Community Task Force on Maternal and Child Health (1982); Indian Conditions - A Survey (1980); York, above, note 165.

106 The federal "redesign" of health care programs means more budget cuts, not improved services to First Nations. MKO First Nations believe that the additional cuts to the already minimal health services are unreasonable and are inconsistent with Constitutional commitments made by Canada and the provinces to provide reasonable services to all residents of Canada. Section 36(1)(c) of the Constitution Act. 1982. states:

"Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to...

All Canadians view medical services as "essential" services, and as a basic "right". The health services provided to Manitoba First Nations are clearly not "reasonable": most Canadians would never accept a standard of four to six hour ambulance trips, increased waiting time in emergency wards for life-threatening illnesses or injuries, even longer waits for hospitalization, and generally limited access to trained nurses and physicians.

In response to the need to enforce Section 36(1 )(c) of the Constitution and to ensure that First Nations' peoples receive at least the same standards of medical and health care available to all Canadians, the sixty-one First Nations of Manitoba (as represented by the Assembly of Manitoba Chiefs) and the federal government (as represented by the Minister of Health and Welfare Canada) have proposed a Framework Agreement on Health for First Nations People in Manitoba. In general, the Agreement calls for the transfer of health care functions and resources from the Medical Services Branch of Health and Welfare Canada to the First Nations of Manitoba organizations. Other programs that actually or potentially impact First Nations' health care, such as those administered by INAC, the federal Department of Human Resources and Labour, the provincial Department of Health, the Manitoba Health Services Commission, the Alcoholism Foundation of Manitoba, Manitoba Environment and Manitoba Education and Training, may also be included in the jurisdictional transfer.

The preamble to the draft Framework Agreement states that "maximum possible jurisdiction and control over health matters and services must lie with the First Nations of Manitoba and their various organizations." The Agreement recognizes that each First Nation in Manitoba has a distinct cultural and linguistic heritage, and thus it is recommended that the development of aboriginal-controlled health systems must feature a variety of approaches at the First Nations, Tribal Council and province-wide levels. This proposal is similar to the proposal to develop an aboriginal court system: both must be

107 flexible enough to accommodate diversity, and given the nature of traditional healing practices, both must be community-driven.

NORTHERN MANITOBA DIPLOMA/DEGREE COLLABORATIVE NURSING PROGRAM

The provision of health care in isolated and semi-isolated communities in the MKO region relies heavily on the services of registered nurses. However, until 1986, many of the health care interventions performed by nurses in outposts, nursing stations and health centres were beyond the curriculum objectives of nursing programs. In addition, there was a perceived shortage of nurses in these stations and outposts, and a high nurse turnover rate threatened the continuity of health care at the individual and community levels.

As a result, a feasibility study of employing aboriginal nurses and educating them at a clinically-enriched baccalaureate level was completed for the Swampy Cree Tribal Council374. In this study, the need for a northern-based Bachelor of Nursing program was well-documented and established.

In 1987, a Northern Baccalaureate Nursing Program (NBNP) designed for aboriginal students was implemented. This progressive development was the first of its kind in Canada. Between 1990 and 1993, there were 15 graduates, 5 of whom were aboriginal. At present, there are 8 full-time and 4 part-time aboriginal students in the program. The educational institutions involved are the Keewatin Community College, Brandon University, the University of Manitoba and Inter Universities North (IUN). IUN has the mandate to coordinate courses of all the Manitoba universities for delivery in northern Manitoba.

Throughout the history of the NBNP, the conditions that prompted the development of the program have not changed a great deal, and some conditions are even more critical than they were five years ago375. In addition, the funding for the current program is scheduled for termination in June of 1994. In response, the Swampy Cree Tribal Council (SCTC) has recommended the expansion of the NBNP, both in collaboration with other First Nations' organizations and educational institutions, and through innovation: the SCTC desires to make the program more community-based with increased First Nations' "ownership" and locations.

374 David Gregory, A Proposal for a Northern Baccalaureate Nursing Program, submitted to the Swampy Cree Tribal Council and the Council of the School of Nursing (December 8, 1986), at p. 1.

375 Pat Stewart, Swampy Cree Tribal Council, Northern Manitoba Diploma/Degree Collaborative Nursing Program, submitted to the Bachelor of Nursing Working Group of MKO (October 1993), at p. 1.

108 The objectives of the expanded program are as follows:

1. to produce baccalaureate nursing graduates with the specialized skills to work in northern and First Nations' communities;

2. to address the nursing shortage and staff turnovers in First Nations' communities by recruitment from the north;

3. to implement community-based nursing education within a strategy of community development so that community "ownership" of the program and commitment to the students is fostered in all locations and in all aspects of program design;

4. to produce graduates of whom 50% will have treaty status;

5. to increase the locations of the program: Norway House, the Island Lake Area and Churchill will be considered as desirable locations. The long-term strategy will be to phase in new sites as old ones are phased out, contingent on funding availability; and

6. to include a graduate level component aimed at creating a pool of northern aboriginal nurses with the qualifications and skills to staff the program376.

The curriculum for the expanded program is currently being developed by the educational institutions identified above, and is soliciting input from aboriginal nurses and Tribal Health Administrators and Coordinators. Existing Registered Nurse and Bachelor of Nursing curricula will be expanded to address cross-cultural issues and incorporate traditional approaches to health care. The program will be designed to prepare students academically, clinically and personally for the formidable challenges facing nurses in remote northern communities.

ABORIGINAL EDUCATION FOR HEALTH AND HUMAN SERVICES

Formerly known as the Community Health and Human Services Training Project, the Aboriginal Education for Health and Human Services, Inc. (AEHHS) was established in response to a directive sent out by the Assistant Deputy Minister of Medical Services Branch (MSB) in early 1989. This directive stipulated that each province had one year to set up a recognized accredited education program for Community Health

376 Ibid., at pp. 3-4.

109 Representatives (CHR's) and Native Alcohol and Drug Abuse Program (NADAP) workers377.

The AEHHS program was incorporated on January 31,1991 and was mandated through the Assembly of Manitoba Chiefs to develop and deliver an accredited diploma program for all full-time employed First Nations' CHR's and NADAP workers in Manitoba.

The objectives of the AEHHS corporation are as follows:

1. to develop, coordinate and administer an education program to train Native Alcohol and Drug Abuse Program Workers and Community Health Representatives;

2. to develop a curriculum that accommodates aboriginal cultural values;

3. to train community workers to use skills based on aboriginal cultural values; and

4. to promote the use of aboriginal healing practices in addressing community problems.

An education diploma program, known as the Community Health and Human Service Workers Diploma Program has been developed. Delivered by Yellowquill College in affiliation with the Assiniboine Community College, the education program incorporates a holistic approach to learning which involves aboriginal spirituality, healing methods and culturally-appropriate educational materials. The training program is based on the following objectives:

1. to provide a high standard of training to Human Service Workers to enable them to carry out their roles and responsibilities in their job descriptions;

2. to ensure the appropriate combination of classroom training and the practical application of training through a structured practicum environment;

3. to ensure that the academic requirements of the program are met to enable students to increase their knowledge base; and

4. to promote personal growth and healing.

377 Ardell Cochrane, AEHHS Coordinator, MKO, Annual Report (1993).

110 As of August, 1993, 11 CHR's and 8 NADAP workers from all regions in Manitoba have successfully completed the Community Health and Human Service Workers Diploma Program. There are an additional 13 individuals, 3 of them NADAP workers and 10 CHR's, who are expected to graduate in November of this year. The remaining 134 NADAP workers and 74 CHR's in the province will be required to complete the Diploma Program.

The AEHHS program was designed to provide students with a broad foundation for the development of knowledge and skills as helping professionals. The program adopts a wellness approach and continues to produce community health care workers who would be instrumental in meeting the needs identified in the process of transferring control over health care to First Nations. It is also the intent of the AEHHS to make this Diploma Program available to First Nations' Mental Health Workers in the very near future.

From the foregoing discussion on health care, a number of common themes emerge. Most importantly, health care in MKO communities is being conducted in an integrated fashion for the following reasons:

1. to place all medical services provided to MKO First Nations under the control of MKO First Nations;

2. to ensure an adequate level (i.e. the full range) of culturally-appropriate health care services for all MKO communities, both in terms of hospital and community-based health resources; and

3. to ensure that all health facilities in the MKO region are adequately staffed, and are staffed with adequately trained First Nations' peoples.

Further recommendations for the implementation of self-government initiatives in such areas as MKO First Nations' health care are presented in Section 2.5, below.

2.3.2.3 Addictions

THE NELSON HOUSE MEDICINE LODGE

With assistance from the National Native Alcohol and Drug Abuse Program (NADAP), the Nelson House Medicine Lodge was established on August 17, 1989 as a non-profit, twenty-one bed, non-medical, in-patient, alcohol and drug treatment centre. The Nelson House Medicine Lodge offers a long treatment program (four months in length), based on the concept of the Medicine Wheel. The Medicine Wheel is an ancient and powerful symbol, a silent teacher of the universe.

111 The four directions represent the four symbolic races: yellow, red, black and white; the four elements: earth, air, water and fire; the great meaning of the sacred tree: wholeness, protection, nourishment and growth; and the four aspects of human nature: mental, spiritual, emotional and physical. There is no ending to the journey of the four directions: the human capacity to develop is infinite, and thus the medicine wheel turns forever378.

Each month of the Nelson House Medicine Lodge treatment program corresponds to one of the four directions and aspects of human nature on which the Medicine Wheel is based:

EAST - THE VISION COMPONENT (MENTAL) During the vision component, the treatment centres on how the client has seen himself/herself, others, and the world around him/her. This includes dealing with self- images, past, present and future. Lectures and activities focus on such things as personal values, clear thinking and reasoning, self-esteem, stress and relaxation, sleeping patterns, defense mechanisms and goal-setting. This component also includes the first three steps of the Alcoholics Anonymous (AA) program: an understanding of the disease of alcoholism, the stages of drinking, and the recovery process. Traditional aspects involve the four directions of the Medicine Wheel, Sweet Grass and Sweatlodge Ceremonies and the Teaching of the Tree.

SOUTH - THE CYCLES OR TIME COMPONENT (SPIRITUAL) During the time component, the treatment centres on the client's place in the traditional life cycle, the way he/she has dealt with his/her roles and responsibilities, and what changes need to be made. Lectures and activities focus on relationships, communication, thinking, and facing grief and loss, family dynamics, suicide prevention, and after care/maintenance. This component also includes steps 4, 5 and 6 of the AA program: the spiritual damage of alcoholism, differences in spirituality, and spiritual balance. Traditional aspects involve singing and drumming, the Vision Quest and the Give Away Feast.

WEST - THE REASONING COMPONENT (EMOTIONAL) During this component, the treatment centres on the client's thinking and feeling processes. This includes looking at the way the use of alcohol has distorted his/her thinking and has brought on feelings of guilt, shame and worthlessness. This component also includes steps 7, 8 and 9 of the AA program: an understanding of alcohol-family dynamics, the effects of alcohol on the family, and concepts of relapse and recovery. Traditional aspects involve Women's Time, Fire and Helpers, and Prophecy.

378 Myra Hart, "The Nelson House Medicine Lodge: Two Cultures Combined", Social Work - North Perspectives (February 1992), at p. 61.

112 NORTH - THE MOVEMENT COMPONENT (PHYSICAL) During this component, the treatment centres on the client's behaviour. This includes looking at what he/she has done while practising his/her addiction, what he/she is doing now, and what he/she will be required to do to remain sober. Lectures and activities focus on trust-building, intimacy, sexuality, co-dependency, physical effects of alcoholism, brain damage sponsorship, networking, maturity, and healthy living. Goal-setting is stressed again. This component also includes the last three steps of the AA program, and the areas of family violence and sexual abuse. Traditional aspects involve the pipe ceremony and healing medicines.

A total of eighty lectures are delivered in the four month treatment program. Sixteen of these are devoted to aboriginal culture, and the remaining sixty-four are on various topics.

The specific objectives of the program are:

1. to reduce the individual deaths, family destruction and cultural genocide caused by the abuse of alcohol and other drugs and chemicals;

2. to provide long-term, non-medical, in-patient therapeutic services for addiction based on aboriginal culture and spiritual practices;

3. to decrease the relapse rate among recovering addicts and alcoholics within its catchment area;

4. to reduce the violence within aboriginal communities and between aboriginal peoples;

5. to increase the knowledge about addiction and its destructiveness among aboriginal peoples;

6. to increase both the number and percentage of sober aboriginal peoples;

7. to create a sober support network;

8. to break the generational cycle of addiction among aboriginal peoples.

The Nelson House Medicine Lodge has a Traditional Counsellor who is responsible for:

1. counselling, teaching and advising clients;

2. broadening the client's awareness of cultural beliefs and practices;

113 3. conducting Sweetgrass Ceremonies, Pipe Ceremonies, Talking Feather Circles, the Teaching of the Tree and other traditional activities; and

4. conducting the lectures on aboriginal culture.

In addition to the traditional counsellor, the staff of the Nelson House Medicine Lodge consists of an Executive Director, a senior counsellor, two therapists, four other counsellors, three night supervisors, one secretary, a receptionist, three cooks and a maintenance person. The people who work at the Medicine Lodge share a strong belief that long-term-treatment that includes aboriginal traditions is an important approach for individuals who want to overcome their addictions. In the future, staff members hope to make use of the resources of the Nelson House community school, such as the home economics, wood-working and arts and crafts facilities.

THE NORTHERN SOLVENT ABUSE DEVELOPMENT PROGRAM

The MKO Solvent Abuse program has been operating in the MKO region for the past three years. During this time period, program staff have observed an increase in the incidence of solvent abuse among MKO First Nations' youth; however, they have also heightened MKO First Nations' awareness of the dangerous effects of solvent abuse. This awareness has brought together concerned youth, parents, local and regional resource people and politicians who have committed their time to assist in resolving the problems of solvent abuse. Their support has been demonstrated by participating in many events organized by MKO. As well, many of these participants have launched their own initiatives to exert pressure on today's governments to address the solvent abuse problem in northern Manitoba.

Some of the activities and objectives of the Solvent Abuse Program are as follows379:

1. SOLVENT ABUSE AWARENESS at SCHOOLS - Solvent Abuse Program Field Workers continue to conduct presentations to all school age children on the dangers of sniffing. Field Workers and teachers have involved the students in activities such as colouring contests. These assignments encourage students to draw and write their own stories on the dangers of sniffing.

2. MEDIA - The media continues to be utilized to heighten the awareness on the dangers of solvent abuse among MKO First Nations youth.

379 Jennie Wastesicoot, Solvent Abuse Development Coordinator, MKO, Annual Report (1993).

114 In the past eight months, there has been an increase in media attention on solvent abuse both at the regional and national level. This attention has encouraged greater involvement by all levels of government to resolve the problems of solvent abuse. Every effort is made to utilize the local media in the 25 MKO First Nations' communities.

3. NEWSLETTER - A Solvent Abuse Newsletter was distributed on an on-going basis to all MKO First Nations' communities. As part of the process of increasing awareness of the dangers of solvent abuse, all communities were encouraged to submit articles to the newsletter. Unfortunately, no funding has been allocated for the newsletter in the current program budget.

4. MEETINGS - An increased awareness on the effects of solvent abuse and an increased level of community involvement in the prevention of solvent abuse has been accomplished through the use of presentations made at community meetings with youth groups and concerned community members. The Field Workers continue to participate in community meetings as resource speakers. The following meetings were attended:

• NADAP Coordinators and Treatment Directors Meetings • Local Child Care Committee Meetings • Alcoholism Foundation of Manitoba Regional Advisory Board Meetings • Crisis Committee Meetings • Chief and Council Meetings • MKO Executive Council Meetings • Leonard Miles Memorial Centre Board Meetings

5. SOLVENT ABUSE WORKING GROUP - To ensure all program objectives are being met, the program conducts ongoing Working Group meetings in many different communities. To ensure that Working Group members are actively participating in the program, task assignments are periodically assigned. To assist in the completion of these tasks, sub-committees have also been formed.

6. RESOURCE MATERIAL DEVELOPMENT: COLOURING BOOK - 200 000 copies of the MKO Solvent Abuse Program colouring book were produced for national distribution.

SOLVENT ABUSE VIDEO - The solvent abuse video, "Ravens are Falling", has been circulated in MKO First Nations' communities. Requests for the video have also been made by people who are interested in using the video as resource material.

115 7. SUPPORT GROUPS - These groups continue to function and serve as support for men, women and young people dealing with the addictions issues that affect them. Of the 25 First Nation communities in the MKO region, 8 communities have active groups. Other support groups, such as Alcoholics Anonymous, continue to meet in MKO communities.

8. YOUTH GROUPS - At present, there are 9 active Youth Councils/Groups, and others are being formed. Several communities have contacted the for assistance in establishing Youth Councils and also to identify funding resources to support youth drop-in centres.

9. YOUTH DROP-IN CENTRES - Field Workers from Lac Brochet and God's River First Nation are continuing to keep the Youth Drop-In Centres operating on a voluntary basis. Activities at the drop-in centres consist of arts and crafts, various sports activities and games, cultural activities, and fundraising for trips. The demand for Centres in the MKO region is increasing.

10. ELDERS' GROUPS - Elders' groups continue to meet in some of the MKO communities. Since elders play an important role in resolving community health and social problems, elders' groups are being utilized as much as possible to provide direction in the promotion of healthy communities.

11. TRAINING - Called "Flying on Your Own", the MKO Solvent Abuse Program- sponsored training program is held in several MKO communities. Training is focused on healing the communities and resolving community problems that are associated with solvent abuse. This initiative is part of the overall strategy to decentralize health care in the MKO region.

12. COMMUNITY WORKSHOPS - During the past year, various community workshops were held in MKO member First Nations' communities. These workshops included Cultural Workshops, Women's Gathering, Family Violence and Healing, and a Alcohol, Drug and Solvent Abuse Workshop. All workshops were supported through the program by way of technical assistance. In addition to these workshops the MKO Solvent Abuse Program has been asked to attend national workshops. These included the "Healing the Spirit World Wide" and "Solvent Abuse" and "Off-Reserve Solvent Abuse" workshops held in Edmonton. As well, Program staff had the opportunity to attend an International Conference on Solvent Abuse in Lake Tahoe, Nevada. All of these out-of-province conferences and workshops were sponsored by the inviting agency.

13. SOLVENT ABUSE FUND-RAISING CAMPAIGN - A fund raising committee of the Cross Lake First Nation has been established to secure funds for the construction of a Solvent Abuse Treatment Centre (discussed in the next Section). All other MKO communities have been encouraged to establish their own fund-raising campaigns.

116 Government responses to the problem of solvent abuse have included the completion of a national solvent abuse research study and the "Manitoba Brighter Futures Initiative"380. The most recent development in our province is the introduction of Bill 29, a piece of legislation designed to bring solvent abusers into the justice system.

In addition to those mentioned above, MKO Solvent Abuse Program initiatives included the organization of a Solvent Abuse Awareness Youth Bike-a-Thon. The Bike-a-Thon involved approximately 50 youth ranging from 10 to 23 years of age, and covered a distance of 791 km (i.e. Thompson to Winnipeg). This event was organized to lobby government to address the problem of solvent abuse to commit capital funding for the establishment of a Solvent Abuse Treatment Centre in northern Manitoba.

Upon their arrival in Winnipeg, the participants in the Bike-a-Thon were initially refused entry into the Provincial Legislative building to deliver a message to the members of the Legislature.

Entry was eventually gained at the Legislative building when six people were permitted to meet with the Assistant Deputy Minister (ADM) of Northern Affairs. As a result of this meeting, the ADM agreed to appoint a representative to join the Manitoba Solvent Abuse Joint Working Group. However, no commitment was obtained regarding the funding of the proposed Solvent Abuse Treatment Centre. A commitment was made by the department to identify the amount of funding currently allocated to solvent abuse treatment programs in the province.

Like many of the initiatives undertaken or proposed by MKO, solvent abuse programs are conducted at the community level with a prevention and intervention orientation. Throughout the entire process of addressing and resolving the problem of solvent abuse in MKO communities, a strong emphasis has been placed on the establishment of a Solvent Abuse Treatment Centre at Cross Lake.

380 The "Brighter Futures Initiative" is a federal program designed to improve the quality of, and access to culturally-sensitive health care services at the community level. The approach of the initiative is holistic and integrated, and includes: Canada's ratification of the Convention of the Rights of the Child; a $500 million Child Development Initiative to reduce conditions of risk for children; and the following program elements: community mental health, child development, solvent abuse, injury prevention, health babies and parenting skills.

117 THE (PROPOSED) CROSS LAKE TREATMENT CENTRE

In 1991, MKO prepared a "A Proposal to Establish the Cross Lake Treatment Centre for First Nations Youth in Northern Manitoba"381. This proposal builds on the previous study commissioned by MKO in 1987 (mentioned above at Section 1.2.6).

The proposal describes a plan to establish a 30-bed residential solvent abuse treatment program for First Nations' youth, ages 9 to 17 years, in the MKO region. The overall goal of the treatment process is to assist each patient to develop the necessary skills, knowledge and personal resources to achieve good health382.

The proposal was submitted by The Northern Solvent Abuse Development Program (MKO) to the Associate Deputy Minister of the Department of Health and Welfare Canada on June 22,1993. At this time, no committment was made by the Department to allocate funding to MKO for the construction of the Cross Lake Treatment Centre383.

First Nations' culture is an important bridge in assisting First Nations' peoples to achieve and maintain a high standard of health. The proposal recognizes that the approach to treatment and the related activities must be tailored to the cultural needs of each patient. Unique in Canada, the Cross Lake centre must be established to assist First Nations in their pursuit of self-government and in the realization of regional well-being.

2.3.3 Natural Resources

At the time Europeans first contacted the ancestors of the present-day MKO First Nations, the quality of the environment was such that MKO communities could access ample supplies of clean water, timber and wood, fish, berries and medicinal plants, beaver, muskrats, moose, caribou, geese and other wildlife resources.

The laws and customs of First Nations guided the sharing and management of resources and ensured that First Nations' peoples could continue to enjoy - on a sustained basis - the resources which sustained the peoples of the MKO communities. These laws and customs are based on generations of observation and knowledge of the land and its resources. First Nations' laws and customs respecting lands and resources also formed the binding foundation of aboriginal Nations and governing systems.

381 Prepared by Trish Merrithew-Mercredi Nuniyeh Consulting Services Ltd, and the Nechi Institute on Alcohol and Drug Education for MKO (19 November 1991).

382 Ibid., at p. 5.

383 Wastesicoot, above, note 379.

118 After millennia of management and stewardship by aboriginal peoples, Europeans came to a resource-rich continent. After only 60 years of continuous exploitation and development in northern Manitoba, guided by science and technological discovery, non- aboriginal management systems have created an era of unprecedented opportunity for wide-spread ecological catastrophe.

MKO seeks to maintain the productivity of the land and resources, and to reinforce the influence of First Nations' approaches to stewardship within the MKO region. To this end, MKO takes every opportunity to apply the full weight of aboriginal and treaty rights to protect the lands and natural resources within MKO traditional territories. "Sustainable development" is much more than an environmental or economic condition, there must also be a just balance of process and equity in the use of resources.

Given the importance of lands and resources to the MKO First Nations, MKO, through its Natural Resources Secretariat, is involved in virtually every major natural resources-related issue in the MKO region. Some of the major MKO initiatives respecting natural resources are described below.

2.3.3.1 First Nations' Participation and Negotiations in Natural Resources Management

Unlike the considerable number of initiatives and government self-interest in the transfer of health and child and family services to First Nations' control, there has been remarkably little government interest in recognizing any effective First Nations' control over natural resources management and development since the earliest days of European contact. Even in light of the present legal and constitutional framework respecting aboriginal and treaty rights, federal and provincial governments consistently resist recognition of the traditional First Nations' role in the stewardship of northern lands. As a result, the bulk of aboriginal and treaty rights litigation is related to conflicts over natural resources issues, especially with respect to government attempts to control or affect First Nations' resource harvesting rights, uses and interests.

MKO seeks to reform and implement features of the following processes to ensure that the interests of MKO First Nations are fully taken into account in the management and development of natural resources:

1. Environmental assessment; 2. Mitigation and compensation; 3. Economic development programs; 4. Equity participation; 5. Joint resource management; and 6. Development accords or framework agreements.

119 Aboriginal culture, the traditional uses of natural resources and the constitutional recognition of aboriginal and treaty rights have long resulted in an intense interest in environmental protection, quality and standards among First Nations. However, it is only relatively recently that a similar interest has developed into a policy priority elsewhere in Canada.

This shift in priority has partly lead to an increase in the use of environmental assessment methodologies in a variety of activities and developments affecting the environment by the federal and provincial governments. Environmental assessment is becoming the principle planning, negotiating and mediation tool of First Nations, governments and developers in dealing with complex resource- and land-related issues in northern Manitoba. However, existing government-designed assessment processes do not contain mechanisms for the inclusion of First Nations as full participants in assessment, for a comprehensive examination of First Nations' interests, or for the direct influence of First Nations in the final outcome of assessment activities.

Thus, MKO has actively participated in government reviews of environmental assessment legislation and regulations with the objective of reforming these processes so that they are responsive to First Nations' concerns. As well, MKO sought designation as a Public Registry under the Manitoba Environment Act to assist MKO in commenting on all developments within the region.

However, the effectiveness of First Nations' participation in the process of decision- making should be measured by the degree of real power that can be exercised over the final decisions related to resource development plans and activities. Additional reform of environmental assessment processes is necessary to: designate First Nations as a joint jurisdiction when First Nations are directly affected; and include mandatory consideration of the impacts on aboriginal and treaty rights.

The second tool, and a major objective of assessment, is mitigation, and to some extent, compensation. Mitigation, as a solution to conflict, is almost entirely inadequate since many issues are insufficiently addressed from the standpoint of the First Nations affected. For example, the principle and foremost First Nations' issue of the protection of resource use rights in the face of natural resource development is almost always ignored, unless there is a parallel legal issue (such as the flooding of reserve lands) which forces a consideration of rights.

Economic development programs may in some respects be viewed as a form of mitigation, or even a form of compensation: they are typically viewed as a "trade-off1. However, economic development programs, regardless of intent, are often geared to a short-term diversion of the "benefits" from a project to First Nations, who in turn, typically have no long-lasting control or ownership of the developments related to the programs. Although MKO has worked to influence the nature and delivery of these programs, lack of government commitment has resulted in little improvement in the lives of MKO First Nations' members.

120 The fourth tool that may be applied to assist in achieving a just form of sustainable development is equity participation. This option is relatively new as it would be applied to the continued development, expansion and modernization of developments in northern Manitoba. It is becoming increasingly apparent among MKO First Nations that true partnerships (and not consultation or the delivery of more advisory programs) are an important and necessary feature of development in the continued expansion and development of the resources of Manitoba's north.

First Nations shared the wealth of their traditional territories with non-aboriginal Canadians in the early historic period of the MKO region, and during the treaty-making process. Given that this sharing has, in turn, largely lead to the impoverishment of the MKO First Nations, justice and a recognition of existing resource rights requires that First Nations are provided with the opportunity to share in the benefits of development within their traditional lands. MKO has presented several proposals to government and resource developers for equity participation. However, there appears to be a reluctance to accept such arrangements unless an overarching legal consideration exists, such as a potential claim liability.

There is much discussion at the present time concerning the use of joint management (discussed in more detail at Section 2.3.3.3, below) as a means of integrating the interests of governments and First Nations in both present operations and future developments.

Joint management agreements are repeatedly described as "progressive" by governments, and are typically advisory in nature. The recognition by government of First Nations' authority within their traditional territories has never been a major component of joint management arrangements in the MKO region. This recognition of authority or recognition of jurisdiction is a key issue and will be a central focus of joint resource management agreement deliberations in the future.

Similar to joint management agreements, regional development accords and framework agreements would provide the parallel partnership, business and management arrangements between developers operating in MKO First Nations' territories. Shareholders and investors (including senior government officials) are becoming increasingly concerned about the stability and predictability of 'the Indian situation": many fear that fervent opposition by aboriginal peoples to resource development will manifest itself in roadblocks and other forms of "civil disobedience".

As natural resources and First Nations' interests are usually intertwined in the MKO region, such development accords would provide additional certainty to corporate planners, and would ensure that First Nations are able to achieve real and lasting opportunities in the developments through partnership with First Nations.

121 2.3.3.2 Traditional Knowledge

Lack of awareness on the part of government with respect to the intensive and extensive use of the boreal region of Manitoba by aboriginal harvesters has led to frequent resource and land use conflicts, lawsuits, and at times, confrontation. Both First Nations and government agree that there is presently a requirement for an effective natural resource management plan that is sustainable for both present as well as future generations of First Nations' resource harvesters.

Each elder and active resource harvester in the MKO region maintains continuity in the community resource area by transferring a highly detailed oral "map" and inventory of resource values and land use locations to younger members of the community. These individual and family maps knit together into a rich and complete mosaic that provides integrated knowledge of the ecosystems within the community traditional resource area. The resource area used, occupied and subject to habitation by each MKO community averages approximately 16,000 km2 in extent.

In order to effectively record and share these extensive oral maps of traditional ecological knowledge (TEK), MKO instructed its Natural Resources Secretariat (NRS) to develop a specialty in mapping-based research and information systems. The Natural Resources Secretariat is presently operating a Geographic Information System (GIS) supported by an Image Analysis System. The resulting MKO GIS database is unique in Manitoba and is being used to support the full spectrum of land and natural resources analyses.

The MKO-NRS GIS Development Project is completely independent and is one of only a handful of permanent TEK-related projects of its kind in Canada: it is controlled, managed and operated exclusively by a First Nations' organization without the direct involvement of governments or universities.

Experience with the massive hydroelectric projects in northern Manitoba proved that impacts to aboriginal land uses were considered by non-aboriginal developers and government as too general to accurately quantify using existing techniques. As a result, impacts to aboriginal land uses were effectively ignored.

When REPAP announced the purchase of a Forest Management Licence covering 108,0002km of northern Manitoba - an area the size of Guatemala - MKO was determined to help protect the traditional resource areas of the First Nations affected by documenting the oral land use maps of resource users in the REPAP cutting area.

In the REPAP case, the MKO Chiefs were determined to combine TEK with science by developing the independent capacity to document detailed land use maps, manage the considerable map data with an automated Geographic Information System and overlay this data with maps of the REPAP cutting plans.

122 Under Manitoba's Environment Act, a joint Federal-Provincial Review of the REPAP forestry expansion and bleached Kraft proposals is a mandatory requirement. The terms of reference for the Environmental Impact Statement include a detailed assessment of the impacts of logging and roads on aboriginal land use. However, the Chiefs of northern Manitoba refused to provide this information directly to consultants working for REPAP. Such land use information is the private "property" of the resource users and the community, is strictly confidential and may be released only with the consent of the resource user and community involved.

The MKO Natural Resources Secretariat negotiated an agreement-in-principle to have MKO First Nations carry out the actual land use mapping related to the Environmental Assessment process. Partly as a result of the REPAP agreement, MKO installed its major computer-based Geographic Information System to ensure that First Nations will benefit in the long run from the information collected as part of the assessment of forestry impacts.

The MKO GIS Development Project achieved several important objectives. First, the proprietary nature of much of the resource and land-use information of individuals was protected. Use, occupancy and habitation maps are often used during treaty land entitlement selection and settlement, mitigation program assessment and other claims negotiations. In short, the publication of specific details of land use maps, such as prime hunting and fishing sites, gravesites and former community locations, may create additional and unforseen impacts.

Second, control of the raw land use information allows each community to optimize the acknowledged value of this information through skills development, contracted projects, employment and other means.

Finally, MKO's comprehensive, computer-based Geographic Information System has enabled MKO to document existing and project future land use mapping data; allow overlay and comparison of resource inventories and economic activity; and model possible alternative patterns of resource development.

Maintaining complete First Nations' control of the raw traditional land use information must be a cornerstone of integrating TEK with science. This ensures that First Nations' peoples will develop the skills and capacity to benefit from the growing interest in TEK.

Developing the capacity for First Nations to independently respond to and directly participate in the resource management activities arising from the application of TEK must be another cornerstone of any TEK-science linkages.

For example, biologists and chemists working in field analysis acknowledge that a human being can often detect changes in taste, in water, tissue and other substances, at levels below that of contemporary testing equipment.

123 Aboriginal resource harvesters near the Ruttan copper-zinc mine in northern Manitoba have refused to drink the water or consume the fish in certain lakes affected by the mining and milling operations. Changes in taste were detected over a two year period. The application of a recent field sampling program designed by the MKO and Environmental Protection Laboratories of Toronto and based entirely on interviews with principle resource harvesters in the area confirmed the significance of the 13 sampling sites suggested by an 84 year old Cree trapper and others using the area.

Work is currently underway to develop a permanent First Nations' capacity to link TEK- based environmental monitoring with a sampling and laboratory analysis program directed and operated by MKO First Nations in northern Manitoba.

TEK is based on mutual well-being and sharing. In severely disrupted environments, TEK is now essential for the survival of First Nations' peoples and others. The benefits of TEK can be shared when there is respect, understanding and a recognition of traditional pursuits and stewardship practices.

The MKO-NRS GIS database is providing a valuable tool for creating a bridge between different cultures - between traditional knowledge and science-based management systems - and for sharing the rich and complex aboriginal knowledge of ecosystems and traditional management approaches that can further the goals of environmentally sustainable economic development.

As part of the MKO efforts to create regional self-government, MKO-NRS operates without government-provided "core funds" and is supported directly through contracted services from MKO First Nations. MKO-NRS has also been contracted to work on First Nations- related projects in British Columbia, Ontario and Quebec. The result is that the MKO-NRS mapping facilities operate with considerable independence from governments and form the core of the MKO's own "Department of Natural Resources".

In addition, the MKO GIS database and capabilities have been used to support MKO First Nations' land claims and self-government initiatives, through the determination of the extent of the traditional territory for several MKO First Nations. Maps and satellite images produced by MKO have also been incorporated as part of the evidence filed by MKO First Nations in several legal actions.

By operating as a readily accessible "in-house" land use consulting service for MKO First Nations, the MKO-NRS staff facilities have also been used in reserve-based environmental and community planning. MKO-NRS also has created a land and natural resources inventory for the MKO region which, in many cases, is at least equal to the information resources of the current provincial and federal governments.

124 2.3.3.3 Natural Resources Joint Management Initiatives

At present, there are eight agreements between MKO First Nations and provincial and/or federal governments for the joint management of natural resources. They are: the Beverly-Kaminuriak Caribou Management Agreement, the Mathias Colomb Moose and Woodland Caribou Management Agreement, the Game Hunting Area 8 Moose Management Agreement, the Kississing Lake Management Strategy, the Opaskwayak Cree Nation (The Pas) Domestic Fishing Licences Agreement, the Nelson River Sturgeon Management Agreement, the Northern Flood Agreement Wildlife Advisory and Planning Board384, and the Tataskwayak Cree Nation (Split Lake) Resource Management Agreement385.

Succinctly defined as a process of sharing decision-making authority between government departments and individuals or groups of consumptive and/or non-consumptive resource users in the management of resources386, joint management agreements are emerging in Manitoba as a means of potentially averting a conservation dilemma of increasing magnitude and as a system of simultaneously managing natural resources and the interests of the people who rely on them. More specifically, joint resource management is a process intended to incorporate some degree of local involvement, shared accountability and responsibility in the management, development, planning, enforcement and allocation of resources . In short, the eight agreements listed above were negotiated and implemented in an effort to strike a balance between constitutionally protected aboriginal and treaty rights and constitutionally derived legislative powers, and to ensure the sustainability of resources and resource use for present and future generations.

384 Article 15 of the Northern Flood Agreement (December, 1977).

385 Article 5 of the Split Lake Comprehensive Settlement Agreement (December, 1992).

386 Harvey Nepinak and Harvey Payne, "Wildlife Co-Management", in Y.G. Lithman, et. al. (eds.), People and Land in Northern Manitoba (1991), at p. 236; Harvey Feit, "Self- management and State-management: Forms of Knowing and Managing Northern Wildlife", in M.M.R. Freeman and L.N. Carbyn (eds.), Traditional Knowledge and Renewable Resource Management in Northern Regions (1988), at p. 75; Evelyn Pinkerton, "Introduction", in E. Pinkerton (ed.), Cooperative Management of Local Fisheries (1989).

387 Michael Anderson, Swampy Cree Tribal Council Resource Management Project (1992), at pp. 23-5.

125 The joint management agreements listed above were developed in response to a variety of background circumstances. These include interjurisdictional oversights and disputes, lack of cooperation among resource users, lack of community-based perspectives, rigid hierarchical authority systems and information flows388, multiple-use conflicts, significant adverse environmental impacts389 and political pressure resulting from claims that the government's ability to manage is insufficient to handle specific problems390. In general, the background circumstances that gave rise to these agreements were crises caused by real or perceived resource depletion and degradation391. In other words, joint management regimes in the MKO region were established as a pragmatic response to a crisis situation: they were a last resort solution.

Many of the benefits that are commonly associated with joint management include: the potential integration of traditional ecological knowledge (TEK) with western, Cartesian science; the promotion of resource conservation and enhancement; the minimization of resource use conflicts; an improvement in the quality of data and data analysis; the fostering of community-based economic development; the advancement of the notions of decentralized decision-making, participatory democracy and self-determination392; and a reduction in the costs associated with scientific research and the enforcement of management regulations393. These functions of joint management can be seen as specific benefits that may be pursued by, and accrue to, participants in the joint management process. It has been suggested that in general, the benefits sought by one or all of the participants in the joint administration of natural resources are "more appropriate, more efficient and more equitable management."394

388 Petr Cizek, The Beverly-Kaminuriak Management Board (1990), at p. 1.

389 Jamie Benidickson, "Co-Management Issues in the Forest Wilderness", in Monique Ross and J. Owen Saunders (eds.), Growing Demands on a Shrinking Heritage: Managing Resource Use Conflicts (1992), at p. 257.

390 Pinkerton, above, note 386, at p. 4.

391 lbid.\ Wagner, above, note 82; Anderson, above, note 387; P.R. Richard D.G. Pike, "Small Whale Co-management in the Eastern Canadian Arctic" (June, 1993), Arctic 46(2), at p. 138.

392 Pinkerton, above, note 386, at pp. 4-5.

393 Susan S. Hanna, Limited Access Management: A Guidebook to Conservation (in press), at p. 6.

394 Pinkerton, above, note 386, at p. 5.

126 The legal principles articulated by the Supreme Court in Sparrow affect virtually all natural resources-related legislation and regulations in Canada. In the context and spirit of joint management, the allocation strategy discussed above (Section 2.1.2) creates two primary roles for aboriginal peoples in natural resources management:

1. given that the Supreme Court has required governments to determine "reasonable conservation measures" through direct consultation with aboriginal peoples, governments can no longer develop legislation and regulations in isolation from aboriginal peoples. Direct consultation with First Nations translates into the incorporation of TEK and independent research into the decision-making process; and

2. since the Court has required governments to allocate any harvestable surplus above the needs of conservation to aboriginal peoples before issuing sport and commercial licences, the government must work with First Nations to determine domestic harvest requirements. At present, governments merely focus on actual harvests, and not actual requirements. Thus, government departments must recognize that direct consultation and interviews with aboriginal resource harvesters is the only means of accurately determining domestic needs.

Even though the Sparrow case left open the scope of the government's obligation towards aboriginal peoples in the regulation-setting process, the Court did note that "aboriginal peoples, with their history of conservation-consciousness and interdependence with natural resources, would surely be expected, at the very least to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries [emphasis added]"395. Thus, both federal and provincial governments are dependent on the cooperation of aboriginal harvesters in fulfilling their resource management mandates, and in justifying regulations affecting aboriginal harvesting activities.

To summarize, present institutional arrangements give provincial governments jurisdiction over natural resources within their boundaries. Constitutional protection of aboriginal and treaty rights almost completely prevents Parliament and provincial legislators from regulating aboriginal resource harvesting activities. As a result, two independent and somewhat isolated, but complementary resource management systems have been created: state-level, Cartesian science-based management systems, and local-level, traditional ecological knowledge-based management systems. Joint management is one method of balancing these two management systems and simultaneously addressing legislative authority and aboriginal and treaty rights in resources management.

395 [1990] 1 S.C.R. 1119.

127 An examination of this assessment of priorities has led one court to infer that "Indian fishing", immediately following "conservation", includes aboriginal commercial fishing. In other words, the reference to the lower priorities to be given "non-Indian commercial fishing" or "non-Indian sports fishing" suggests that Indian fishing rights of either nature are to be included in "Indian fishing" generally397. Canadian courts however, have been reluctant to adopt this line of reasoning and have instead drawn distinctions between aboriginal fishing for domestic and commercial purposes.

As mentioned above, the Supreme Court of Canada in Sparrow characterized the s. 35(1) right as a right to fish for food, social and ceremonial purposes. The question of whether a practice of bartering in early society may evolve into a right to fish for commercial or livelihood purposes was left open398. A number of courts have attempted to answer this question, but the particular facts and contexts of each case have led to different responses. The leading cases in this area are discussed below.

In a heavily criticized judgement of the British Columbia Supreme Court, it was held that aboriginal rights are restricted to "residential and sustenance gathering rights", and that land-based commercial enterprise cannot be regarded as an aboriginal right399. Along a similar vein, s. 35(1) has been interpreted to protect aboriginal fishing for reasonable food and social requirements but not to protect a share of the harvest over and above food fish requirements400.

In R. v. Vanderpeet*°\ the court held that the aboriginal right to dispose of fish included the right to sell and barter. Underlying this decision was the premise that the absence of a prohibition ipso facto gives rise to a right, and the finding that there is a "logical progression" from the ancient to the modern practice. This case was, however, referred back to the trial court for determination on the issues of extinguishment, infringement and justification. At the trial level, the contention that a specific aboriginal practice can evolve into a contemporary activity which differs materially in its nature and scope from that of the traditional aboriginal practice was rejected, and no right to sell fish allocated for food

397 This point was argued in R. v. Jones and Nadjiwon, [1993] O.J. No. 893 at p. 23.

398 R. v. Sparrow, above, note 149, at 176.

399 Delgamuukwv. B.C., [1991] 3 W.W.R. 97. For a critique, see, H. Foster, "It Goes Without Saying" (1991), 49 The Advocate 341; R. v. Jones and Nadjiwon, above, note 397, at pp. 26-7.

400 R. v. Wilson, [1988] 2 C.N.L.R. 167 (B.C. Prov. a.); R. v. Aleck, [1988] 2 C.N.L.R. 78 (B.C. Prov. Ct).

401 [1991] 3 C.N.L.R. 161 (B.C.S.C.)

129 purposes on a commercial basis was found to exist402.

Similarly, in ft v. Dick, it was held that "there is nothing in the wording of s. 35 to suggest that Parliament intended to give certain natives a commercial advantage over other natives and over all non-natives in the modern marketplace ... [I]n s. 6 of the Charter of Rights and Freedoms, Parliament has anticipated the possibility of affirmative action programs, provided the individuals involved meet certain criteria"*53.

In a recent decision of the Supreme Court of Canada, the idea that s. 35(1) may protect a commercial dimension to a particular treaty right was advanced404. However, as a result of paragraph 12 of the Alberta Natural Resources Transfer Agreement (NRTA)405, the majority held that original treaty right to hunt for commercial purposes without regulation was extinguished. Given that this case was heard by the Supreme Court of Canada, a precedent for the interpretation of the NRTAs and its effect on treaty hunting rights in Manitoba is established.

This finding of the Supreme Court has recently been described by the Alberta Court of Appeal406 as "deeply troubling". For example, if the NRTAs are given the broad and liberal interpretation called for in R. v. Sutherland™, an interpretation that reflects the principle enunciated in R. v. Simon408 and Nowegijick v. The Queen409 (i.e. that statutes relating to aboriginal peoples must be given a "fair, large and liberal construction"), then it could be argued that the range of activity encompassed by the term "for food" extends to hunting/fishing for "support and subsistence" (i.e. hunting/fishing not only for direct consumption but also in order to exchange the product of the harvest for other items) as opposed to "purely" commercial or sport hunting. If this is the case, then harvesting for "support" would likely relate to something other than "subsistence".

402 R. v. Vanderpeet, [1993] B.C.J. No. 1401, Vancouver Registry No. CA014436/CA14458 (B.C.C.A.).

403 [1993] B.C.J. No. 418, Campbell River Registry No. 16555.

404 R. v. Horseman, above, note 140.

405 Paragraph 13 of the Manitoba NRTA is identical to the wording in para. 12 of the Alberta NRTA.

406 R. v. Badger, above, note 158 (Alberta C.A.).

407 Above, note 144.

408 Above, note 313.

409 Above, note 120.

130 In other words,

The whole emphasis of [treaties] was on the preservation of the Indian's traditional way of life. But this surely did not mean that the Indians were to be forever consigned to a diet of meat and fish and were to have no opportunity to share in the advances of modem civilization over the next 100 years... [and] this cannot mean that [today] they are to be precluded from selling their meat and fish to buy other items necessary for their sustenance arid the sustenance of their children. Provided the purpose of their hunting is either to consume the meat or to exchange or sell it in order to support themselves and their families, I fail to see why this is precluded by any common sense interpretation of the words "for food*™.

Treaty rights can neither be extinguished unilaterally nor without the manifestation of a "clear and plain" intention on the part of the Crown to do so411. The court in Badger could not find evidence of a clear intention to extinguish treaty rights in paragraph 12 of the Alberta NRTA (and by implication, para. 13 of the Manitoba NRTA). Therefore, the approach taken by the Supreme Court in Horseman is difficult to support and almost impossible to reconcile with the approaches taken by the same court in R. v. Sparrow and R. v. Sioui.

The Horseman case dealt specifically with hunting and the sale of wildlife, activities that are regulated by the provincial government under the Wildlife Act. As a result of the NRTA, the majority in Horseman held that the treaty right to hunt for sport or commercial purposes can be regulated by provincial game laws and regulations of general application412. The treaty right to fish for commercial purposes, however, was not mentioned. Although the NRTA transferred federal jurisdiction over wildlife to the prairie provinces, the federal government retained its jurisdiction over the fisheries. In that the NRTA itself refers to fishing, it can only relate to provincial regulations established pursuant to the federal Fisheries Act. Therefore, the NRTA cannot be relied upon by the provincial government as a means of validly extinguishing a treaty-based commercial fishing right.

Given the weaknesses inherent in the Horseman case, it is likely that the original treaty right to fish for purposes of commerce remains intact throughout the prairie provinces.

410 This was the dissenting opinion in the Horseman case: above, note 140, at p. 117.

411 R. v. Sioui, [1990] 70 D.L.R. (4th) 427 (S.C.C.); R. v. Sparrow, above, note 149.

412 R. v. Horseman, above, note 140; Moosehunter v. The Queen, above, note 152.

131 In a recent landmark ruling on treaty rights413 in Ontario, the court recognized a collective and ancestral right to fish for commercial and livelihood purposes for the Saugeen Ojibwa Nation. The right to sell the fish commercially was held to extend at least to the maintenance of "a subsistence" income level, and was considered to be a component of the domestic fishing right. This finding is consistent with the Boldt decision414, where a "moderate livelihood" was used to describe the treaty rights of aboriginal peoples in the State of Washington. Thus, if a treaty right is directed to a subsistence use of the resource as opposed to the development of a commercially profitable enterprise, it may fall under the category of treaty rights protected by s. 35(1).

As a consequence of the constitutional recognition and affirmation given by s. 35(1) to the Saugeen Ojibwa Nation's treaty right to fish for commercial purposes, combined with the fact that the Sparrow decision is applicable to treaty rights415, this First Nation now enjoys a priority over other user groups in the allocation of surplus fishery resources, once the needs of conservation have been met.

In light of the foregoing, assuming that a commercial component of an aboriginal or treaty right to fish has been established, are commercial licence and quota restrictions necessary and reasonable limits based on conservation and resource management in accordance with the justificatory test in Sparrow?416 Given that the constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with the allocation strategy, the allocation of commercial quotas under an existing regulatory scheme must extend priority to a given First Nation with a recognized commercial aspect of an aboriginal or treaty right. In other words, if non-aboriginal sport or commercial fishermen are favoured by a particular allocation, then it may be necessary to reallocate commercial fishing quotas to reflect the priority afforded to a First Nation with a recognized commercial component of a domestic fishing right.

413 ft v. Jones and Nadjiwon, above, note 397. In the words of the court (at p. 18), "a communal right to derive sustenance from the fishery resource, a resource which has always been an essential part of the community's economic base" was recognized for the Saugeen Ojibwa Nation.

414 State of Washington v. Washington State Commercial, Passenger and Fishing Vessel Association (1979) 443 U.S. 658.

415 ft v. Bombay, [1992] Registry No. C5126 (Ont. C.A.) at 5.

416 The applicability of the justificatory test to a treaty or aboriginal commercial fishing right has been acknowledged by the court in ft v. Trudeau and Toulouse, [1991] O.J. No. 1800 (Ont. Ct. Gen. Div.).

132 Again, assuming that the aboriginal right to fish for domestic purposes includes a limited treaty-based commercial component, is the regulatory scheme imposed by the federal Freshwater Fish Marketing Corporation (FFMC) in Manitoba a necessary and reasonable limit on the exercise of this right? It is not difficult to argue that the objective of Manitoba's fisheries regulations (established pursuant to the federal Fisheries Act) and the FFMC Act is not conservation (or even public safety): these regulations are designed to establish quotas and limit markets. Thus, since fisheries regulations are only valid if they can be reasonably justified as being necessary for the conservation of a given resource, then it may be argued that these regulations are invalid and constitute an infringement of any existing treaty-based commercial component of the aboriginal right to fish.

Furthermore, the Supreme Court in Sparrow stated (at p. 176) that:

"...historical policy on the part of the Crown is not only incapable of extinguishing the existing aboriginal right without clear intention, but it is also incapable of, in itself, delineating that right The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right"

Given that the content and scope of the aboriginal right to fish for domestic purposes includes the right to select the recipient of fish (as articulated in the Sparrow and Jack cases), and that this right may include a treaty-based commercial aspect, then it may be argued that the FFMC Act unilaterally delineates the aboriginal right to fish by prohibiting the sale of fish to anyone other than the FFMC. In short, it is a law that denies the aboriginal right to select the recipient of fish. This argument may, however, be operative only if commercial fishing activity is directed at the maintenance of a subsistence income level.

If the Supreme Court of Canada or a Manitoba court of competent jurisdiction recognizes a commercial component to the corpus of rights enjoyed by Manitoba's aboriginal peoples, then it is plausible that the same court will adopt the reasoning applied in ft v. Jones and Nadjiwon (i.e. the court may denounce the exercise of a commercial harvesting right beyond the maintenance a subsistence income level). If such a declaration is given, it may leave an important issue unresolved: i.e. what constitutes a subsistence income level for Manitoba's aboriginal peoples?

As a final note, it will be a question of fact in each case whether a sale is made for purposes of sustenance or for purely commercial profit417.

417 R. v. Horseman, above, note 140, at 117.

133 As the Supreme Court has articulated in Sparrow and in Kruger and Manuel v. The Queen418, a case-by-case approach must be taken to s. 35(1), and "the claim of any Band ... should be so considered on the facts pertinent to that Band and not on any global basis". Although it appears as though Canadian courts are reluctant to disturb the government's regulatory framework under which aboriginal harvesting rights must be exercised, the law clearly states that aboriginal rights are to be determined by aboriginal culture and concepts of ownership rather than by governments and common law concepts419.

2.4 REDRESS AND CLAIMS

A major MKO initiative that involves close and frequent contact with government, is the provision of assistance to MKO First Nations in the resolution of outstanding claims for compensation, mitigation and the fulfilment of treaty obligations. The areas in which these claims arise are identified in the following sections.

2.4.1 Claims Arising From Treaty: The Fiduciary Obligation to Settle Outstanding Specific Claims

Part of the fiduciary duty consists of the obligation to settle outstanding land claims. This specific obligation and its application to First Nations in Manitoba is examined below. The fiduciary obligation holds much potential as a source of remedies for aboriginal peoples seeking redress from the federal government. Because of the s. 91 (24) constitutional authority, and by virtue of the fact that the treaties were concluded by the federal government and not the provinces, the concept of fiduciary obligation falls squarely on the federal Crown. The nature of this fiduciary obligation, and the implications it has for the resolution of outstanding claims in the MKO region are examined below.

From colonial times, aboriginal peoples have voiced grievances to the federal government regarding unfulfilled treaty promises, the maladministration bv Canada of First Nation assets, and the illegal taking or damaging of reserve lands .

418 Above, note 300, at 109.

419 Aboriginal rights are not defined by historical policy on the part of the Crown, nor by government regulation: ft v. Sparrow, above, note 149, at 176; traditional common law concepts of property are not applicable: R. v. Sparrow at 182.

420 Hamilton and Sinclair, above, note 103, at pp. 176-177.

134 The widespread nature of these claims led the federal government to observe in its 1969 White Paper on Indian Policy that the "sense of grievance" is so pervasive that it "influences their relations with governments and the community and limits their participation in Canadian life." The government concluded that "lawful obligations" should "be recognized... and dealt with as soon as possible".

In 1982, the federal government introduced a specific claims policy entitled Outstanding Business. This policy set out a process for addressing the three major grievances discussed above.

As a result of several court cases, Canadian law stresses the importance of negotiation and out-of-court agreements, as opposed to litigation for redressing the government's non-performance of treaty obligations421. It is the responsibility of the federal government to conduct these negotiations422.

A specific claim may arise if there is a shortfall between the amount of land that has already been reserved and the amount of land that the treaty specifies must be reserved for the claimant group. Thus, if the full quantum of land as promised by a treaty has not been awarded, it may be settled in accordance with the government's specific claims policy framework. Under this framework, the Minister of Indian and Northern Affairs Canada (INAC) and the Minister of Justice must first determine the validity of the specific claim. The criteria for determining validity are unknown to the public and the claimants. The process is as follows:

1. the band submits historical documentation, or a "treaty land entitlement study", usually funded by the federal government;

2. INAC re-researches the facts, duplicates the historical research, and submits a final "combined" research report;

3. the final report is submitted to the Department of Justice for a legal opinion on the validity of the claim;

421 Pacific Fishermen's Defence Alliance v. Canada (Minister of Indian Affairs and Northern Development), [1987] 3 F.C. 272 at 284 (T.D.); MacMillan Bloedel Ltd. v. Mullin (1985), 61 B.C.LR. 145 at 173; A G.B.C, v. Wale, [1987] 2 W.W.R. 331 at 333; in Samuel v. ft, (April 23,1993) Federal Court Trial Division, File T-703-93, Rouleau J. ordered the parties to negotiate an agreement ensuring that the Nunavut Settlement Agreement does not prejudice the treaty rights of the Manitoba Denesuline.

422 Woodward, above, note 56, at p. 112.

135 4. a "validation letter" is written to the Chief of the claimant group informing them of the status of their claim. Attached to this letter is a requirement to negotiate damages as set out in the specific claims policy. If the claim is not valid, the process ends here, although the claimants still have recourse to the courts; and

5. if the claim is valid, negotiations are conducted and compensation may be awarded.

This process is not always the most suitable method for resolving outstanding claims. For example: there is a very restrictive federal interpretation of "acceptable" claims; the Department of Justice is assigned contradictory roles as it defends the government's position while serving as "judge" of the validity of the claim; and INAC is also in a conflict of interest position, as it is the defendant while serving as the fiduciary and the funder of the claimants423. Thus, the federal fiduciary obligation to act in the best interests of aboriginal peoples seems to be pushed aside when assessing the validity of a claim and determining what constitutes adequate compensation.

In the alternative, there is recourse to the courts. Typically, what the government is prepared to provide as compensation is usually less than what can be awarded by the courts. Litigation, however, also has its attendant disadvantages, such as costs and the federal government's ability to assert technical defences (e.g. laches, estoppel and limitations periods), all of which can prevent the claim from proceeding.

In any event, if it is determined that a claimant group has a valid claim, a number of issues relating to compensation and the unknown compensation criteria arise. These are addressed briefly in turn.

2.4.1.1 The Formulas

For the purposes of the formulas set out in the treaties (e.g. "one square mile for each family of five"), the date at which the population of the band is to be fixed has been a source of contention.

In most of the numbered treaties, it is articulated that "Her Majesty's Commissioners shall, as soon as possible after the execution of this treaty, cause to be taken an accurate census of all the Indians inhabiting the tract hereinbefore described [emphasis added]."424

423 Hamilton and Sinclair, above, note 103, at p. 178.

424 Morris, above, note 107, at pp. 322 and 346.

136 Under the "shortfall on first survey" formula, which is the preferred option of the federal and provincial governments, the population of the band at the date the first piece of reserve land was surveyed, is multiplied by the acreage per person promised under the treaty to arrive at the treaty land entitlement (TLE), less any land they have received from the Crown to date.

This proposal is unfavourable to the claimant group for a number of reasons. First, the band's population at the date of first survey is considerably smaller than the current population, and thus the quantum of land is also smaller425. Second, many bands at the time the land was first surveyed were semi-nomadic, and thus the population figure arrived at is not always an accurate reflection of the size of the community at the time. Third, the first survey was typically based on the treaty annuity list at the time of signing, which also provides no assurance that an accurate population is arrived at, since this list included only those residents 18 or older, and excluded those people that were "in the bush".

Another method of determining the quantum of TLE is the "Saskatchewan Formula". To apply this formula, the population of the First Nation as of December 31,1976 is multiplied by the acreage formula set out in the treaty to arrive at the amount of land to which the band is entitled.

If the argument is advanced that aboriginal peoples are entitled to the full amount of land promised by the treaties in accordance with the population at the time the treaty obligations are finally fulfilled, then current population figures must be used for entitlement in conjunction with the formula set out in each treaty.

Given that the federal government failed to make the necessary quantum of land available shortly after the treaties were signed, the amount of land to which a band is entitled should be established in light of the band's population as of the day the land is transferred. This recommendation is the most favourable to claimant groups, and receives support from the fact that Saskatchewan is one example where the size of the TLE was based on the total band membership of the day. Thus, there appears to be some precedent for this position.

2.4.1.2 Availability

Lands preferable for selection as additional reserves are disappearing rapidly as private landowners, resource development and the creation of national and provincial parks encumber them.

425 Many bands continue to grow in size as a result of high birth rates and the effect of rectifying past discrimination through restoration of Indian status through Bill C-31.

137 Such encroachment has placed many aboriginal groups in a position where they must select land that is unsatisfactory or accept financial compensation in lieu of land. The issue of availability is tied together with the issue of delay. Given that the government failed to make the necessary quantum of land available with "all convenient speed", as the treaty Commissioner Alexander Morris phrased it, and that the government is typically more aware of encumbrances by third parties than claimant groups, additional claims arise. These include a bonus in the quantum of TLE as well as monetary compensation. Treaty land entitlement bands have made it clear that they do not wish to disturb private landowners426, and given that it is becoming increasingly expensive for the federal and provincial governments to purchase land on the open market, the amount of compensation should satisfy the compensation criteria set out in the government's specific claims policy427. Given that provinces have profited from the sale of natural resources from lands that should have been conveyed to benefit the band with a specific claim, a more generous settlement would reflect the value of the land at the time of "taking" (in 1993 dollars) as well as the cultural and social significance to the band of being deprived of the encumbered land.

Thus, it is recommended that a First Nation with a shortfall be awarded the outstanding quantum of land based on the current population, and in the event that preferred lands have been encumbered, financial compensation for the delay should be awarded. "Replacement" lands should also be surveyed and awarded to the claimant group.

By 1991,575 specific claims were filed in Canada, and less than 50 of these were settled. Of the 18 Specific Claims filed in Manitoba, only one has been completed (Hamilton and Sinclair 1991: 177).

Of the 61 Manitoba First Nations signatories to treaty, 23 have specific claims for outstanding treaty land entitlements. Within the MKO region, there are 13 First Nations with unresolved specific claims, namely: the Northlands, Sayisi Dene, Fox Lake, God's Lake/God's River, Island Lake, Mathias Colomb, Nelson House, Norway House, Oxford House, Shamattawa, Shoal River/Indian Birch, Opaskwayak and York Factory First Nations. The total quantum of outstanding treaty land entitlements in the MKO region is identified in Table 2.

426 Hamilton and Sinclair, above, note 103, at p. 165.

427 Indian and Northern Affairs Canada, Outstanding Business (1982), at pp. 30-31.

138 2.4.1.3 A Case Study - the Manitoba Denesuline and the Inuit of Nunavut - Specific vs. Comprehensive Claims

Even though the entire MKO region is covered by treaties, and thus subject to specific claims, there are two MKO communities affected by the Comprehensive Claims Policy of the Department of Indian Affairs. A comprehensive claim arises when aboriginal title to a particular area has not been extinguished by treaty or any other legal instrument. The Inuit of Nunavut did not cede aboriginal title to approximately 2 million km2 of land north of the 60th parallel in the eastern Arctic, and as a result, they have negotiated and concluded a comprehensive settlement with the federal Department of Indian Affairs. This comprehensive settlement includes monetary compensation ($1.15 billion), a degree of autonomy in decision-making, Inuit Owned Lands (i.e. lands held in fee simple), and subsurface rights.

However, the two Denesuline communities at Tadoule Lake and Lac Brochet in Manitoba have traditionally used and occupied approximately 73 000 km2 of lands and resources which are north of the 60th parallel, and therefore within the Nunavut Settlement Area. By virtue of outstanding treaty land entitlements, Manitoba Denesuline have specific claims to the area. Both the Sayisi Dene First Nation (Tadoule Lake) and the Otelnadi Dene of the Northlands First Nation (Lac Brochet) are anxious to select outstanding reserves in the portion of their traditional territory that is now incorporated in Nunavut.

Many of the lands desired by the two Denesuline First Nations as treaty land entitlements have become fee simple lands or have been given similar designations which have, in effect, meant that these lands have been "encumbered" by the Inuit of Nunavut. By implication, completion of the Nunavut Settlement may preclude the completion of Manitoba Denesuline treaty land entitlement selections in the NWT.

Figure 11 compares the Inuit Owned Lands with the traditional territory of Manitoba Denesuline as well as present treaty land entitlement selections. Conflicts between these selections are readily apparent at Ennadai Lake, Mountain Lake and the area surrounding the Grey Hills (north of Nueltin Lake).

INAC's Comprehensive Land Claims Policy (CLCP) contains a provision that is intended to provide direction to government negotiators in resolving disputes of this nature:

•Where more than one claimant group utilizes common areas of land and resources, and the claimants cannot agree on boundaries, no lands will be granted to any group in the contested area until the dispute is resolved." (at p. 6).

This section of the CLCP is mirrored by the Nunavut Settlement Agreement itself in Article 18.1.1(e) which states:

139 'Identification of Inuit Owned Lands in areas of overlapping use and occupation with other aboriginal peoples may not be finalized until issues relating to such overlap are resolved."

The federal government clearly acted without regard for these policies when it enacted Order in Council P.C. 1598 of July 16, 1992. This executive order protected selections of Inuit Owned Lands from encumbrances until enabling legislation for the Settlement Agreement was passed. When asked for clarification, the Director General of the Comprehensive Claims Branch, INAC informed Manitoba Denesuline that the provisions of the CLCP only benefit and apply to neighbouring claimants with outstanding comprehensive claims. However, a plain reading of the CLCP indicates that the policy refers to claimants in general. Therefore the policy has been interpreted in a manner that compromises the rights and interests of any Treaty First Nation with a specific claim within a comprehensive claim area.

Manitoba Denesuline also maintain that the Inuit of Nunavut cannot establish - and thus, surrender - aboriginal title to the disputed area. Historical and contemporary land use patterns are now widely accepted by Canadian courts as a necessary criterion for establishing aboriginal title to land and resources. The tests of title were developed by the Supreme Court of Canada in Baker Lake v. Min. of Indian Affairs and Northern Development. In addition, it was reported in this case that:

This [the southwest Keewatin] is the only area where the weight of the evidence does not confirm the admission by the government Defendants that the Inuit had occupied and used the Baker Lake area since time immemorial. The law is clear that where the evidence and an admission by counsel [for the Defendants] cannot stand together, it is the duty of the court to have regard to the real facts as established in evidence." (Baker Lake v. Min. of Indian Affairs and Northern Development [1979] 3 C.N.L.R. 17 at 49).

Therefore, when the Minister of Indian and Northern Affairs, Canada imposed a settlement boundary which included lands subject to use and occupation by Manitoba Denesuline, Canada provided lands to the Inuit under their comprehensive claim for which the Inuit could not establish aboriginal title. Denesuline further assert that the boundary was imposed by Canada for reasons of political expediency, rather than according to the legal tests of title. These actions by Canada pose serious implications for all aboriginal claimants in Canada - be they specific or comprehensive claims - in that a precedent has been established that boundaries will not be set by neighbouring aboriginal groups based on traditional use and the legal tests of title, but by the federal government based on political imperatives.

140 The right to select reserves in the NWT has recently been recognized for Manitoba Denesuline. However, what is still at issue before the courts is whether the Inuit of Nunavut have the authority to regulate the traditional land uses of the Otelnadi and Sayisi Dene within the portion of their traditional territory that extends beyond the 60th parallel. These MKO communities believe that recognition of First Nations' jurisdiction over lands traditionally used and occupied by them will have profound implications for future conflict- resolution among aboriginal groups with competing claims for jurisdiction over the land and its resources.

2.4.2 Claims Arising From Development

Claims arising from development fall mainly into four areas:

1. Impacts to the selection of treaty land entitlement, resulting from the preemption, alienation, encumbrance and destruction of lands desired for selection;

2. Direct impacts to treaty-protected resource harvesting rights and the enjoyment of those rights, and;

3. Indirect socio-economic impacts related to the project impacts, and;

4. Direct environmental impacts which may not be adequately incorporated into licence terms and conditions or outright non-compliance with legislative and permit requirements.

None of the existing major hydroelectric, mining and forestry operations established in northern Manitoba between 1925 and 1990 were subjected to a comprehensive environmental and socioeconomic impact analysis. As a result, no basis for determining appropriate mitigatory measures or the amount of financial compensation that should be awarded to those First Nations adversely affected by these developments has been generated.428

The impacts of the past cannot be ignored: they are still being felt today. A thorough environmental assessment of past and present impacts generated by hydroelectric, mining and forestry operations is Manitoba would generate recommendations for bringing these operations into full compliance with existing legislation and regulations, for

428 With respect to hydroelectric developments, the bases for mitigation and compensation have been determined through negotiations related to settlement agreements, not as a result of recommendations made through an assessment process. Claims for these settlements have often arisen from the flooding of reserve lands.

141 implementing adequate mitigation and monitoring strategies, and for initiating a compensation scheme that considers the resource uses and rights of First Nations' peoples within project areas.

In an effort to ensure that existing and abandoned projects do not escape the provisions of environmental assessment legislation, MKO appeared as a witness before the Select Committee on Bill C-78 (now Bill C-13), also known as the proposed Canadian Environmental Assessment Act. As a result of MKO's efforts and those of other First Nations, and as a result of provisions in comprehensive settlement agreements, the proposed legislation recognizes the jurisdiction of First Nations in the environmental assessment process429.

Provincial and federal governments have also rejected First Nations' requests to bring existing projects into compliance with the modern assessment standards and environmental-protection regulations on the basis that developments may not be directly impacting reserve lands. Instead, it has been argued that these developments only affect unoccupied provincial Crown lands.

However, under paragraph 13 of the Natural Resource Transfer Agreement (NRTA), steps must be taken by the province to guarantee First Nations a "continuance of the supply of game and fish for their support and subsistence ... on all unoccupied Crown lands". Regardless of the NRTA, Canada still has the overarching responsibility to ensure that treaty-based resource use rights are protected beyond the boundaries of reserve lands (i.e. on provincial Crown lands). But under federal law, there is no provision for monitoring the protection of treaty rights on unoccupied provincial Crown lands. Thus, the only mechanism available to First Nations to ensure that the NRTA is upheld, and consequently, that treaty rights are guaranteed, is the courts.

Recourse to the courts is not, however, a realistic option for northern Manitoba's First Nations. In the struggle to secure long-overdue compensation, and to ensure at least minimal compliance with the law, the onus is placed on First Nations to acquire the necessary financial and information resources to launch individual legal actions with respect to existing developments. Instead, what is needed is a critical mechanism for federal oversight on the protection of treaty rights in development projects. Leaving mitigation and compensation issues for the courts to resolve clearly ignores the fiduciary obligation of Canada to ensure that treaty obligations are honoured and protected.

Furthermore, the result of the analysis at Section 2.1.1 is the confirmation of aboriginal rights, the establishment of the fact that Crown cannot unilaterally extinguish rights through legislative or other action, and the verification that regulations cannot

429 Sections 40(1)(d) and 40(2)(a) of the Canadian Environmental Assessment Act (Bill C-13).

142 unreasonably infringe on the exercise of these rights. To summarize, legal precedent has established the following key principles to guide the management and regulation of natural resources:

1. the Crown is limited in its powers to unilaterally establish and enforce regulations concerning the use and management of natural resources;

2. regulation or infringement of the exercise of aboriginal/treaty rights is limited to justifiable and reasonable conservation measures only;

3. First Nations must be given a first priority in the use and allocation of resources, particularly wildlife, fisheries and migratory birds;

4. regulation or infringement of aboriginal resource use requires consultation with the aboriginal peoples affected. If there is a loss of aboriginal or treaty rights, compensation must be considered; and

5. the Crown has a fiduciary responsibility to First Nations' people and 'the honour of the Crown" must be a guiding principle in any assessment of impacts on treaty rights.

Therefore, environmental impacts that affect lands and resources used by aboriginal peoples in the pursuit and enjoyment of constitutionally-protected harvesting rights must be examined from the perspective of the above principles. That is, in the spirit of Sparrow, infringement of harvesting activities can only be justified on conservation grounds and only following a process of direct and meaningful consultation. These principles also apply when identified impacts are considered relative to:

1. Severity 2. Acceptability 3. Mitigative and Management Plans 4. Compensation 5. Applicable terms and conditions to be attached to any licences that may be issued.

In Horseman, the Supreme Court "removed" the provinces from having the power to unilaterally regulate aboriginal harvesting and Sparrow affirmed a right of first priority. Just as the provinces assure the right of first priority to aboriginal peoples by limiting the issuance of moose hunting licences to non-aboriginal harvesters, the habitat that is related to the moose harvest must be similarly accorded first priority in the production of the aboriginal domestic harvest.

143 Therefore, the environmental impacts that occur as a result of developments licensed under provincial or federal legislation represent c/e facto regulation of aboriginal harvesting rights. The right of first priority which is assured aboriginal harvesters under Sparrow and Horseman cannot be unilaterally affected by existing government licensing processes.

Provincial environmental licensing processes also lack the constitutional authority to reassign a "first priority" to the resource developer through the licensing process for the same natural resources harvested by First Nations' people. The first priority by which First Nations' harvesters continue and enjoy the domestic harvest can only be affected by the direct agreement of the aboriginal harvesters affected.

Additionally, should development make it impossible for First Nations' harvesters to continue a domestic harvest within their personal, family or community resource area, then the provincial and federal licensing processes would amount to the de facto extinguishment of aboriginal and treaty rights. In Sioui, the Supreme Court required that the Crown demonstrate a clear and plain intention to extinguish rights. Clearly, neither the provinces or Canada may extinguish rights through the licensing of developments.430

Thus, environmental assessment and licensing of projects affecting aboriginal interests must now incorporate the direct participation of First Nations in order to identify impacts and ensure the protection of rights, determine mitigation and compensation approaches, as well as develop management and monitoring plans. Similar approaches must be incorporated into the resolution of claims arising from existing projects.

2.4.2.1 Hydroelectric Development

Fourteen MKO First Nations have directly been affected by hydroelectric developments.

The Cross Lake, Nelson House, York Factory, Norway House431, Split Lake,

430 The traditional territories of MKO First Nations have been incorporated into the Manitoba Registered Trapline system since the 1950's. Under this system, each trapper is allocated an individual trapline within a Registered Trapline District. There is intense competition for individual trapline areas, resulting in a situation where all available traplines are allocated and little mobility into new areas is possible. Therefore, should hydroelectric, mining or forestry activities significantly damage an individual trapline, most productive harvesting activities - and the enjoyment of harvesting rights - of the affected harvester are effectively extinguished.

431 As mentioned above in Section 1.3.3.2, these four First Nations are the present members of the Northern Flood Committee. The fifth original member of the Northern

144 War Lake (llford), Fox Lake and the Sayisi Dene First Nation were all affected by the Lake Winnipeg Regulation-Churchill River Diversion Projects of Manitoba Hydro.

The Grand Rapids, Opaskwayak, Chemawawin and the Moose Lake First Nations were significantly impacted by the Manitoba Hydro Cedar Rapids Dam on the Saskatchewan River.

Resource harvesters of the Mathias Colomb Cree Nation were affected by the Laurie River Projects, originally constructed and operated by Sherritt-Gordon Mines, now owned and operated by Manitoba Hydro.

The Barren Lands First Nation and the Mathias Colomb Cree Nation reserves were directly affected by the Island Falls hydroelectric project and the Whitesand dam control structures built in 1927 and 1938, respectively, by Hudson Bay Mining and Smelting, now owned and operated by the Saskatchewan Power Corporation.

Of the 9 MKO First Nations who have been involved in claims and settlement processes between 1976 and 1993, only the Split Lake Cree Nation has achieved a satisfactory final settlement.432

Since the signing of the Northern Flood Agreement in 1977, the legal framework supporting First Nations' interests in claims and settlement negotiations has changed fundamentally. First, sections 35(1) and 35(3) of the Constitution Act, 1982 provide constitutional access and protection to all aboriginal peoples for many of the same rights and benefits provided to the Northern Flood Committee under the Northern Flood Agreement. Second, in May, 1990, the Supreme Court of Canada in Sioui declared that treaties are "sacred documents", documents that bind the Crown and may not be unilaterally interpreted by government parties. Third, in November, 1990 the Supreme Court of Canada in its landmark decision in Sparrow, provided a definition of aboriginal domestic resource harvesting rights and found that the Crown is limited in its powers to interfere with the enjoyment of these rights.

Flood Committee, the Split Lake Cree Nation, withdrew from the Northern Committee after commencing separate global negotiations. Other members of the Northern Flood Committee are presently considering a separate settlement process similar to the approach taken by the Split Lake Cree.

432 With respect to the Manitoba Hydro projects on the Churchill and Nelson Rivers, the MKO First Nations engaged in recognized claims and settlement processes are: the Norway House, Cross Lake, York Factory, Nelson House and Split Lake First Nations. With respect to the Manitoba Hydro Cedar Rapids Dam on the Saskatchewan River: the Moose Lake, Chemawawin, Grand Rapids and Opaskwayak Cree Nations.

145 MKO intends to utilize the full force of these decisions with respect to future Manitoba Hydro developments and outstanding claims to ensure that hydroelectric projects will not infringe on the aboriginal and treaty rights of the MKO membership.

THE NORTHERN FLOOD AGREEMENT

The provisions of Northern Flood Agreement (NFA), considered a landmark agreement in 1977, have been difficult to implement. In part, the difficulties in fulfilling the terms of the NFA stem from the lack of an associated implementation agreement4®. An implementation agreement defines the roles, responsibilities and obligations of the parties. The lack of such an agreement and the related intergovernmental disputes regarding identification of the party or parties responsible for specific clauses has resulted in considerable delays in giving effect to the NFA.

In addition, subsequent interpretations of the NFA (in particular, the matter of the Northern Flood Communities' "rights of first priority ... for income and income in kind") have led to frequent arbitration and, more recently, legal action between Cross Lake, REPAP and the province of Manitoba in an attempt to seek a binding interpretation.

The Manitoba Aboriginal Justice Inquiry said of the Northern Flood Agreement:

"We believe the Northern Flood Agreement is a "land claims agreement" within section 35(3) of the Constitution Act, 1982 and that the rights within the NFA are treaty rights within section 35(1). As a treaty, the Northern Flood Agreement must be interpreted liberally from the Indian perspective so that its true spirit and intent are honoured."*34

At the request of the Northern Flood Committee, the MKO Chiefs in Assembly passed the following resolution regarding the status of the NFA in August, 1993:

WHEREAS: The NFC First Nations, the Manitoba Court of Queen's Bench and the Aboriginal Justice Inquiry have described the NFA as a treaty, protected by section 35 of the Constitution Act, 1982; and

433 For example, an Implementation Agreement was carefully negotiated as a companion agreement to the recent Nunavut Comprehensive Land Claim Settlement Agreement.

434 Hamilton and Sinclair, above, note 103, at p. 174.

146 WHEREAS: The purpose of the NFA is to "ensure that all persons ... directly or indirectly, adversely affected by the Project shall be dealt with fairly and equitably"; and

WHEREAS: In consideration of the significant adverse impacts of the Project on the NFC First Nations, the NFA was intended to "eradicate mass poverty", provide remedial works and community infrastructure and provide compensation for damage to lifestyles and livelihoods while ensuring a right of first priority for the NFC communities to the lands and natural resources within their traditional territories; and

WHEREAS: Canada, Manitoba and Manitoba Hydro have consistently refused to honour and implement the provisions of the NFA Treaty, and as a result, have failed to address persistent conditions of poverty, adverse environmental impacts, and have refused to recognize a right of first priority among NFC communities to the lands and natural resources within their traditional territories;

BE IT RESOLVED: That the Manitoba Keewatinowi Okimakanak Chiefs in Assembly demand that the provisions of the NFA Treaty be honoured and implemented immediately, equitably and with fairness, consistent with the Constitutional status afforded the NFA, and that a spirit of goodwill and cooperation characterizes the implementation process.

MANITOBA HYDRO

Four MKO First Nations have not yet entered into recognized negotiations with Canada, Manitoba and Manitoba Hydro regarding past Manitoba Hydro projects. Some of these projects were completed 30 or more years ago.

The Fox Lake First Nation

The Fox Lake First Nation is literally "living in the shadow" of the Kettle Rapids, Long Spruce and Limestone generating stations. There has never been any settlement agreement with the Fox Lake First Nation of any kind regarding these developments, which are in the midst of their traditional territory and community areas. The proposed Manitoba Hydro Conawapa generating station would also be within the land use area of the Fox Lake Band.

147 The War Lake (llford) First Nation

The outstanding claims of the War Lake First Nation are being advanced by the former llford Fishermen's Co-op. The Co-op suffered significant damages and witnessed the eventual cancellation of their commercial fishery largely due to impacts caused by water flow changes, mercury pollution and other impacts related to hydroelectric development on the Northern Indian Lake-Churchill River system and on the Nelson River-Stephen's Lake system. Similar to the Fox Lake First Nation, the members of the llford Fishermen's Co-op have received no compensation whatsoever from Manitoba Hydro for the loss of equipment and eventual loss of their fishery.

Sayisi Dene First Nation (Tadoule Lake)

Sayisi Dene made use of the lower Churchill River prior to the Churchill River Diversion for domestic harvesting and economic uses. No compensation has been awarded, and no mitigation arrangements have been made for the damage to natural resources and continuing impacts to navigation.

Mathias Coiomb First Nation

Fishermen and trappers from the Mathias Coiomb First Nation harvested a significant amount of natural resources for domestic and commercial purposes in the Laurie River area prior to the construction of hydroelectric projects in 1952 and 1958. In addition to trapping, the Laurie River and related lake system provided a high-yield, export-grade fishery. This productive fishery was subsequently down-graded to domestic (non-export) due to impacts to water and fish quality caused by the Laurie River projects. The Mathias Coiomb fishermen and trappers have neither received compensation nor benefitted from any mitigation plans related to the Laurie River developments.

Island Falls and Whitesand

The Mathias Coiomb First Nation and the Barren Lands First Nation have never been compensated for the adverse impacts resulting from the Island Falls and Whitesand developments on the Churchill and Reindeer Rivers, initiated over 60 years ago. These developments flooded a portion of the Barren Lands First Nation reserve at Brochet in 1938 and have caused persistent low water conditions since 1927 at the Mathias Coiomb First Nation community of Pukatawagan. The productivity and value of both domestic and commercial harvests has been significantly reduced by these projects, in addition to adverse impacts on water quality and community infrastructure.

148 2.4.2.2 Mining Developments

Contemporary attitudes toward social and environmental impact assessment, reflected somewhat in current environmental assessment legislation, dictate operating procedures that are different than those presently permitted for mining developments in Manitoba. Allowing existing and abandoned mining operations to continue without subjecting them to retrospective or even current environmental assessments will contribute to the legacy of ecological despoliation and destruction in Manitoba's boreal forest and MKO First Nations' homeland.

MKO First Nations have repeatedly presented detailed accounts of these impacts and the attendant violations by mining operations of existing environmental legislation and regulations to both the federal and provincial governments.

One rationale for the lack of political will to pursue these persisting impacts and illegalities of mining operations is based on the professed financial difficulties and threatened long- term viability of the mining industry. As a result, the economic stability of Manitoba's mining industry - and the largely non-aboriginal communities these mining operations support - outweigh the concerns regarding the health of the environment and the needs and treaty rights of MKO First Nations' peoples. Governments allow mining operations to continue largely under such circumstances because there are taking place in the "wilderness"; a region largely unknown to most Canadians.

Steps must immediately be taken to ensure that existing and abandoned mining operations are brought into compliance with the standards applied in contemporary environmental assessment and management. Such standards are designed to ensure that project development and operations inflict minimal or mitigable impacts on human and ecological health.

The Nelson House First Nation has attempted to secure compensation for past damages and future impacts of the continued operation of the former Sherritt-Gordon Ruttan Mine, now owned and operated by HBMS. The following five point position of the Nelson House First Nation could perhaps be viewed as a model for redressing outstanding claims arising from all mining operations in northern Manitoba:

1. a full environmental assessment of the Ruttan operation must be conducted to establish the necessary information base to complete a comprehensive examination of the operation's impacts;

2. full compensation must be awarded for past, current and future impacts, and adequate mitigation programs must be developed for present and future operations;

149 3. detailed information, including test results, must be provided;

4. any further changes to, or expansion of, the Ruttan operation, such as exploration and the related construction of access roads, must be subject to the informed consent of the Nelson House First Nation; and

5. a training and employment strategy must be implemented to ensure the maximum capture of employment opportunities, in particular, the environment services-related aspects of the HBMS operations in northern Manitoba.

2.4.2.3 Forestry Developments

The social, cultural and economic fabric of the MKO First Nations has been tied to the boreal forest since time immemorial. The treaty rights to hunt, fish and trap enjoyed by MKO First Nations' peoples flow primarily from the resources of this region.

In the MKO region, the progressive transition of the native boreal forest into a managed plantation is altering the age of timber stands, diminishing the quality of fish and wildlife habitat, and reducing species diversity and wildlife populations. A related and perhaps more intense impact is increased access to existing wilderness areas through extensive all-weather and winter road construction.

Government and corporate commitments to "reforestation" do not respond to these concerns of MKO First Nations: certain site preparation techniques and the use of herbicides are intended to reduce shrub and tree species diversity and "competition" for desired pulpwood and saw logs.

It is increasingly recognized by First Nations worldwide that the term "reforestation" is largely a misnomer: a native forest and a managed plantation are not the same. "Reforestation" is not intended to replace a forest in all its complex diversity, but is intended to ensure the rotation of woodfibre in the shortest possible time. Through empirical observation, important distinctions between a forest and a tree farm have been drawn by the First Nations' harvesters in the MKO region.

The loss and alienation of potential treaty land entitlement selections and the effective extinguishment of treaty harvesting rights in areas subject to intensive harvesting form the basis of many claims within the MKO region.

The position of MKO First Nations regarding the resolution of forestry-related claims incorporates the following mechanisms:

150 ENVIRONMENTAL ASSESSMENT

Existing forestry developments and operations in the MKO region must be subjected to comprehensive environmental assessment. In part, the purpose of such an assessment would be to determine those mitigatory measures and compensation strategies that would apply to First Nations' peoples and lands adversely affected by forestry developments.

NATURAL RESOURCE DEVELOPMENT AND ALLOCATION

Decision-making processes resulting in the disposition and harvesting of timbered lands by forestry companies must incorporate the direct participation of MKO First Nations. This participation must include planning, development, assessment and monitoring functions. First Nations must have first priority to forested lands which are selected as treaty land entitlements or settlement lands. In addition, lands sustaining productive resource harvesting or other special values, such as former community, camp and burial sites, must be protected from intensive forestry development and road development. An increase in land quantum may arise when lands otherwise suitable for selection under the terms of treaty are alienated by forestry activities.

RESOURCE EQUITY AND EMPLOYMENT

MKO First Nations must be guaranteed a degree of equity in forestry developments - a lasting share - that can be used to ensure the security of future generations. Similarly, a right of first priority to employment and contract opportunities must be provided to MKO First Nations' peoples affected by forestry developments. In particular, forestry operators must ensure that aboriginal resource harvesters (i.e. trappers, hunters and fishermen) who are directly affected by forestry activities are awarded either employment or compensation. Business development and training programs must also be implemented to give effect to these priorities.

COMMUNITY RESOURCE AREAS

MKO has discovered that persons unfamiliar with First Nations' resource use in the north find it very difficult to visualize the extensive and intensive use of what appears to be "unused wilderness". Forest planning, operations and management must be conducted within designated First Nations' Community Resource Areas on a comprehensive basis by, or with, the day-to-day participation of First Nations. Community Resource Areas are based on the region that is traditionally used, occupied and subject to habitation by a given MKO First Nation. Planning on this basis, and with the full participation of First Nations would serve to recognize and protect key wildlife habitat, fisheries, and tourism values essential to the economic well-being of First Nations.

151 2.4.3 Claims Arising From Government Policy

2.4.3.1 Relocation of Savisi Dene and York Factory Cree

The forced relocations of Sayisi Dene and the York Factory Cree by the federal Department of Indian and Northern Affairs have profoundly affected these two First Nations. The case of the Sayisi Dene has been discussed at Section 1.2.4, above and has been presented to the Royal Commission in a separate presentation in July, 1993. in the case of the York Factory Cree, the 1957 relocations resulted in:

1. delays in the selection of reserve lands under the terms of treaty;

2. loss of the York Factory Registered Trapline District and, as a result, recognition by the governments of Canada and Manitoba of the Community Resource Area relied upon by the York Factory First Nation;435

3. loss of personal property which remained at York Factory and which was subsequently destroyed by the Department of Indian and Northern Affairs Canada; and

4. increased transportation costs related to annual trapping and hunting trips to traditional lands in the York Factory area.

Canada must publicly acknowledge, and accept full responsibility, for the effects of these forced relocations on First Nations in the MKO region. The steps that Canada must take to resolve these claims include: compensation to the survivors and their families; accelerated community development and services; and recognition and protection of traditional lands and resource use areas.

2.4.3.2 Residential Schools: Releasing the Silent Cry

MKO First Nations view the residential school system as nothing less than a violation of the basic human rights of the survivors, their families and their communities, and a deliberate and systematic attempt by the federal government to effect the cultural genocide and assimilation of First Nations' peoples. The fact that the federal government failed to effect these changes is a testament to the strength of First Nations' values, culture and traditions.

435 As mentioned above, the only registered trapline presently recognized for the York Factory First Nation is Trapline 13 of the Split Lake Registered Trapline District.

152 Since the demise of the residential school system, there has been an intense interest in obtaining redress for the psychological, physical, cultural and sexual abuse of generations of First Nations' children in the residential schools implemented by the federal government and administered by the churches. In addition, there is an growing interest in seeking redress for the pain and suffering experienced by the families and communities of residential school survivors.

However, the specific means of redressing these past injustices are of great personal concern to those MKO First Nations' members who survived the residential school system. The options that have been discussed range from a full judicial inquiry with the imposition of criminal charges and other punitive actions on offenders to a public apology, and from various forms of compensation to the establishment of community-based processes focused on the healing of residential school survivors, their families and communities.

The often intensely painful experiences of aboriginal peoples in the residential school system have been buried in the minds and hearts of these survivors, protected from scrutiny to prevent the pain from resurfacing. The sensitivity of the matter of redress regarding residential schools is highlighted by the fact that many survivors are only now beginning to share their experiences with others in small healing circles organized by First Nations, even though many survivors are well-known and often high-profile leaders in MKO First Nations. Many survivors are concerned that a process of public disclosure, for example through a judicial inquiry, will prevent survivors from participating in the healing process and will lead to involvement in criminal investigations.

In November of 1990, the Assembly of Manitoba Chiefs, including MKO technical staff, met with the Archdiocese of St. Boniface and the Archdiocese of Winnipeg to establish a process that would enable the healing of those who were abused by staff in the residential schools system436.

Manitoba First Nations met with the Minister of Indian and Northern Affairs on November 8, 1990 to seek a federal commitment to facilitate the initial steps in the healing process for residential school survivors and for redress. During this meeting, the Minister made an unspecified commitment to involve the federal government in some form of review of the abuse of aboriginal children in residential schools set up under Departmental policy and administered by the Churches. At the same time, the Minister rejected both the suggestion for a full federal inquiry into the residential schools system and the request to reveal the federal records on the residential schools system and policies.

436 The Roman Catholic Church operated the majority of the residential schools in Manitoba.

153 However, the Minister recognized that Canada would be bound to review specific allegations of abuse by persons who attended the residential schools where alleged violations of the Criminal Code had occurred.

In June of 1991 the Swampy Cree Tribal Council proposed an "Assessment of the Abuse at the Residential Schools", a proposal that to date has not been funded or carried out.

On November 30, 1992 the First Nations' Health Commission of the Assembly of First Nations in Ottawa formed a committee to oversee the development of a national framework to assist First Nations and service agencies in addressing the impacts of the residential schools system on Aboriginal Nations, communities, families, and individuals.

On January 20, 1993 the national Bishop Advisory Committee on the Convocation of Catholic Communities on Native Issues launched a major community-based initiative to help ease some of the personal pain and suffering experienced by aboriginal men and women in the province. The cornerstone of the initiative is a 5 year funding arrangement (totalling half a million dollars) to help interested First Nations' communities operate or establish mechanisms to alleviate the pain and suffering precipitated by the long term interaction of European and aboriginal culture issues.

As a result of this initiative, a meeting was held at the St. Boniface Cathedral in St. Boniface, Manitoba. This meeting was attended by more than 100 non-aboriginal peoples and First Nations' members of the Catholic communities and organizations. It was recommended at this meeting that a committee be formed to review funding criteria and establish a method for determining which grassroots organizations would receive grants from the fund. Consisting of two representatives from the Assembly of Manitoba Chiefs and two members of the Bishops Advisory committee, a committee was established to design a process of disclosure and healing and address the residential schools issue for the public record. Following this meeting, a separate Working Committee was formed to serve as a liaison between First Nations and the Bishops Advisory Committee.

During a March 18, 1993, MKO Northern First Nations' Health Conference, several recommendations came out of a workshop on residential schools:

• Establish an aboriginal inquiry into residential schools;

• Establish monuments to recognize those who have died in residential schools;

• Establish a Task Force on Residential Schools that will travel to communities to hear from the survivors and assist in the ongoing healing process;

• Establish healing circles to deal with individual needs and issues regarding residential schools;

154 Establish a Family Healing Centre to go through a healing process together; and

Convene more Healing Conferences to deal with the effects of residential schools.

The Bishops Advisory Committee has acknowledged that cultural, emotional, physical and sexual abuse took place in some residential schools and has committed itself to work in a collaborative manner with the First Nations of Manitoba to pursue a healing process for those affected by the residential school experience.

At present, however, both the Catholic Church and Canada appear to be reluctant to commit themselves to a retrospective examination of the residential schools issue. This reluctance is largely due to potent issues of liability and potential violations of human rights, as well as violations of civil and criminal laws. Many survivors are similarly reluctant to publically disclose their experiences, since such a disclosure may lead to police investigations, criminal charges and other punitive measures.

In October, 1993, the Opaskwayak Cree Nation, the Swampy Cree Tribal Council and the Assembly of Manitoba Chiefs hosted a healing conference called "Adult Children of Residential Schools: Releasing the Silent Cry" in which residential school survivors met in small groups for five days to share their experiences. At present, MKO seeks to elicit a commitment from the Churches and Canada to immediately establish a community- based healing process to assist the survivors of the residential schools system in the MKO region.

2.4.3.3 Prohibition of Religious Expression

During the period of the prohibition of traditional religious expression by MKO First Nations, several important spiritual artifacts were removed from the MKO region and were subsequently placed in museums and private collections.

At present, there is a resurgence of traditional healing approaches and spiritual practices in the MKO region. The recovery of many spiritual artifacts would greatly assist First Nations' in the re-establishment of traditional healing centres and in the process of reconciliation with governments and non-aboriginal peoples.

Therefore, in order to assist in the re-establishment of traditional medicine and healing practices of MKO First Nations, Canada must actively assist the MKO First Nations in locating and recovering these spiritual objects.

155 2.5 THE SELF-GOVERNMENT FRAMEWORK

MKO First Nations maintain that they have never surrendered their inherent right of self- government. Self-government has always remained within the hearts of First Nations' peoples, only waiting to be restored, reaffirmed and exercised. The MKO organization and the First Nations it represents are now serving as regional and tribal governments. MKO First Nations are increasingly asserting jurisdiction, and are doing so without constitutional change: MKO First Nations contend that self-government is an inherent right under the meaning of s. 35 of the Constitution Act, 1982.

Within the context of self-government, the MKO organization strives to realize two primary objectives. These are:

1. to restore First Nations' systems of government and stewardship with respect to First Nations' communities and traditional territories respectively; and

2. to re-establish the nation-to-nation or bilateral relationship between First Nations and the Crown that was recognized during the treaty-making process.

2.5.1 Realizing Self-Government

Virtually all activities and programs carried out by MKO, MKO First Nations and their affiliated organizations are related to the reassertion of First Nations' jurisdiction and self- determination.

Self-government does not have a single prescription: more than one form exists and not one form will serve as a model for all First Nations. For example, some First Nations, such as the Iroquois Confederacy of Ontario, Quebec and the United States and the Git'ksan Wet'su'weten of British Columbia have retained much of the structure of traditional law and government. Others, such as the Sechelt First Nation have opted for less traditional models such as a municipal structure.

As many First Nations have done before them, MKO First Nations will determine the scope and authority of their governments. The structure of these models is rooted in the language, traditions and cultures of MKO First Nations. Each First Nation will follow a process of rediscovery - define common ground - to find the principles upon which self- government is based.

Defining common ground for aboriginal self-government can mean coming to community agreement and understanding on:

1. the basic values, elements and principles of self-government; and

156 2. the process, or series of activities and tasks, for establishing self-government and implementing the principles of self-government

There are at least three basic areas of community re-discovery and process development for defining this common ground: practical, symbolic and legal.

PRACTICAL considerations focus on the bases for self-government: the important values and principles in traditional and historic forms of government that provide the foundation for First Nations' self-government initiatives. These activities are "practical" in that any self-government initiative must commence with an understanding of the existing foundation. In other words, each First Nation must:

1. examine and record the history and traditions of First Nations to establish the law and regulations that originate in the roots of each First Nation;

2. identify, through mapping and other means, the extent of lands traditionally used and occupied, camps and community sites, as well as the original toponvms (place names) for lakes, rivers, regions and special places; and

3. record the myths and legends that traditionally represented the community values and laws.

SYMBOLIC considerations are mainly those which assert self-government and jurisdiction for each First Nation even without formal inter-governmental agreement. These activities could include:

1. independently develop laws, regulations and management plans for both reserve lands and traditional territories, and encourage compliance with these laws by all persons, including non-aboriginal governments, corporations and developers within traditional territories;

2. declare and display territorial interests (i.e. post signs and develop maps to demarcate traditional territory), defend the resources and lands within the defined territory and initiate negotiations on resource management, equity and sharing arrangements with non-aboriginal developers and governments; and

3. use the language of nationhood (and not the non^aboriginal language as contained for example, in the Indian Act) at every opportunity in all dealings with every level of government and with the public, in order to promote a changed consciousness within the non-aboriginal population.

157 LEGAL considerations include those structural issues and concerns that actually implement and put in place self-government structures, for example:

1. determine the specific means whereby existing First Nations'political organizations, such as MKO, can evolve into First Nations' Governments;

2. determine the specific language for the process of ensuring recognition and constitutional entrenchment of self-government;

3. amend the Indian Act in the interim (i.e. until self-government is entrenched in the Constitution) in order to provide First Nations with specific governmental powers in certain areas of administration;

4. assert the constitutional and fiduciary nature of the existing relationship between First Nations and Canada; and

5. determine long-term financial arrangements and associations with government

2.5.2 Recognizing Self-Government

Prior to 1982, aboriginal rights and related issues of self-government were examined by government and courts as essentially academic matters, and as a result, wide differences in opinion and interpretation have occurred.

In 1982, "existing" aboriginal and treaty rights were recognized and affirmed in s. 35(1) of Constitution Act, 1982. By virtue of this section, treaties are now considered to be constitutional documents.

MKO First Nations take the position that self-government is based on an inherent jurisdiction that flows through the treaties without interruption. Thus, self-government may not only be an aboriginal right, but also a treaty right. In either case, MKO First Nations hold that self-government is an existing right, now recognized and affirmed by the Constitution Act.

There was considerable debate and in some areas, inability, to agree on the identification and definition of specific aboriginal rights to be included in the Constitution Act, 1982. As a result, s. 37 was drafted to call a First Ministers Conference to examine "constitutional matters that directly affect the aboriginal peoples".

In accordance with s. 37 of the Constitution Act, 1982, between 1983 and 1987, four Constitutional Conferences were held to address the question of aboriginal self- government.

158 All four conferences ended without any amendment to the Constitution: no clarification of aboriginal rights was given, and no entrenchment of aboriginal self-government was provided. The subsequent Meech Lake Accord failed in 1990 largely as a result of its disregard for aboriginal concerns437, and in particular, its failure to entrench the inherent right of self-government. The process leading to the subsequent Charlettown Accord did accommodate, in a limited fashion, the interests of First Nations. However, the 1992 Accord was rejected by First Nations' communities primarily because it merely promised (as did the 1981 Constitution) another process to define the right of self-government, as opposed to the clear recognition of the right438.

2.5.2.1 Constitutional Amendment

There are several methods of amending constitutional documents to reflect the distinctive realities, rights and aspirations of First Nations and to entrench and enhance self- government.

Formal amendment of the Constitution is effected by one of four processes. These processes are set out in the Constitution Act, 1982, and are described briefly below.

The first covers amendments that require the consent of Parliament and all provinces or seven of ten provinces with over fifty percent of the population. Virtually all of the attention in the past ten years has been focused on constitutional changes under ss. 38 and 42 of the 1982 Act. Section 38 requires the consent of Canada and 7 of 10 provinces with over 50% of the population, while s. 42 requires unanimous consent of all eleven jurisdictions. Constitutional amendments require federal-provincial negotiations carried out in First Ministers Conferences (FMC).

437 The official federal position is that the Meech Lake Accord was defeated by the government of Newfoundland Premier Clyde Wells. However, the Meech Lake Accord was earlier fatally stalled in Manitoba. Then Manitoba MLA Elijah Harper (a First Nations person representing the riding of Rupertsland) refused to provide the unanimous consent required to allow the approval by Manitoba of the Meech Lake Accord to by-pass the Committee review (and hearings) process required under Manitoba Legislative rules.

438 The national referendum on the Charlettown Accord also failed to win the support of a majority of Canadian voters, although, interestingly, a poll of non-aboriginal voters taken after the referendum vote indicated that a majority of Canadians would have supported the First Nations self-government process set out in the Charlettown Accord if it were a separate issue.

159 Prime Minister Jean Cretien indicated during the 1993 federal election campaign that a Liberal government would not pursue additional processes for constitutional amendment. In addition, the growing interests of the Québécois in a form of sovereignty, and recent statements of Bloc Québécois Leader Lucien Bouchard (now the official Leader of the Opposition) that oppose First Nations' self-government have perhaps effectively closed this potential for change in the immediate future.

Second, only the consent of Parliament is required for amendments that relate to the Executive branch of the federal government. Bilateral negotiations between First Nations and Canada could achieve changes that recognize the unique role of the federal Crown toward First Nations, such as that evident during the treaty-making process.

It may be possible to bilaterally effect constitutional change in the relationship between Canada and First Nations without the participation of the provinces. Given that the provinces have no jurisdiction on reserve lands (except with respect to child care and provincial legislation of general application referentially incorporated under s. 88 of the Indian Act), a self-government arrangement that applies to reserve land could be negotiated exclusively by the federal government and the First Nation concerned.

Third, amendments that affect one or several provinces require only the consent of Parliament and the affected province(s)439. Thus, First Nations could enter into trilateral negotiations (i.e. First Nations, Canada and one or more of the provinces) to achieve recognition of their rights and aspirations within each province. Fourth, amendments to the constitution of a province (as opposed to the Constitution of Canada) require only the consent of that province. First Nations could enter into bilateral negotiations with each province to recognize the distinctive contributions and place of First Nations, as well as to protect them from provincial actions.

In addition to formal amendment in accordance with the process requirements of the Constitution Act, 1982, constitutions can also change through judicial interpretation and practice. For example, given that treaties are constitutional documents, court decisions which further define the specific nature of treaty rights also define specific Constitutional rights. An MKO-region (and perhaps national) litigation strategy is therefore of long-term importance in protecting and advancing the rights and perspectives of First Nations before the courts, especially in light of recent, favourable decisions from the Supreme Court of Canada.

Change through practice can be realized by all First Nations if they assume as much of the language and powers of self-government as possible under the current legal regime.

439 Section 43 of the Constitution Act, 1982.

160 2.5.3 Re-establishing the First Nations-Crown Relationship

Following the ratification of the Constitution Act, 1982 and the related provisions at s. 37 for constitutional conferences on self-government, Parliament established a Special Parliamentary Committee on Indian Self-Government to advise the federal government of options for entrenching self-government. The 1983 Report of the Special Parliamentary Committee on Indian Self-Government recognized the need for a new relationship between First Nations and the federal government, that being self-government for First Nations. The Committee noted that First Nations' governments should be established as a level of government distinct from municipalities and that described by the Indian Act. Furthermore, the Committee suggested that both the Indian Act and the Department of Indian and Northern Affairs should be phased out over a period of 5 years. The Penner Report440 further stated that the right of self-government should be explicitly stated and entrenched in legislation.

This clear support for self-government lifted the spirits of the MKO First Nations. Even though spirits may have ebbed with the delays of the federal and provincial governments, MKO First Nations remain optimistic that progress on self-government initiatives will accelerate to a point where the momentum coincides with the wishes and aspirations of First Nations.

At present, any constitutional amendments that would provide explicit guarantees for First Nations' self-government may be further delayed given the demise of both the Meech Lake and Charlettown Accords.

Self-government initiatives can be furthered in the post-Meech/Charlettown period if:

1. First Nations assert various forms of self-government without approval by the federal government and the provinces;

2. First Nations embark upon government functions, with future recognition in the legislative and constitutional arrangements of Canada; and

3. First Nations assert that self-government is an "existing" aboriginal right already entrenched in the Constitution Act, 1982.

440 The 1983 Report of the Special Parliamentary Committee on Indian Self- Government is known as the Penner Report after the Committee Chairman, Keith Penner, Liberal MP for Kenora.

161 MKO First Nations are cognizant of other First Nations who have developed certain forms of self-government whether by agreement or legislation. Learning from the experience of others, MKO First Nations are considering those options that will accelerate and facilitate the self-government restoration process in the MKO region.

First Nations can work together to map and identify their traditional territories and define the region within which the jurisdiction of each First Nation shall apply. Collectively, these First Nations can encourage others within the demarcated region to respect the policies of the governments of the Manitoba First Nations.

For example, the Council of the Haida Nation in British Columbia is persuading all persons and companies operating within the traditional territories of Haida G'waii to become signatories to a declaration of acceptance of Haida law and regulations. With respect to Haida fisheries management regulations, approximately 60% of the persons and companies utilizing the fishery within Haida G'waii have become voluntary signatories to the declaration.

2.5.4 The "New" Relationship

2.5.4.1 Bilateral Recognition of the Right to Self-Government

"I want to mention our sacred land which is the very basis of our self-determination. Long before the first European journeyed to this land, our people were already here receiving from the elders an understanding of creation and of the mystery that surrounded them which was deep, rich, and to be treasured.

The elders knew that the Europeans were send over by the Great Spirit to share the wealth and resources that this land has to offer. That is why they greeted them with open arms and gifts.

The land is the basis of our culture and the centre of our existence. The elders always had a mystique about the land and what it contains. The concept of land was holistic. Our people showed respect because of the spiritual nutrition that was received from Mother Earth. The land was not to be exploited but rather was given by the Great Spirit to be used not only by man but also by all living creatures.

Land was not a commodity of trade in our society. Clans and tribes appropriated certain land as their hunting and camping territory, however, there was no strict delineation of boundaries and they would be changed as the needs of tribe changed...

162 The successors were also believed to have rights in the land, therefore, the members had an obligation to leave it for them in the condition in which they had inherited it themselves. Individual ownership of land was unknown as were such concepts as selling, leasing, or mortgaging land.

The most important point is that Canada remained undiscovered by the Europeans. By the time they arrived, Canada had already been explored, claimed and utilized by the first inhabitants. There was no virgin, uninhibited land for Europeans to claim. Lands wanted by the Europeans had to be taken by force from the First Nations. Sometimes the land was taken by exterminating the original people.1,441

MKO First Nations view the process leading to First Nations' self-government as a two- part process:

1. a community discovery and reaffirmation leading to recognition and adherence to First Nations' traditions and law; and

2. a recognition that the inherent right to self-government results in a bilateral relationship, that is, between First Nations and Her Majesty in Right of Canada.

Recent and existing federal "self-government" initiatives in the area of administration, education, health care and social services have been based on the transfer, or "devolution", of federal service delivery responsibilities to First Nations.

'[Canada is] committed to continuing the process of devolution. Indian people now control more than 70 percent of the budget of the [Department of Indian and Northern Affairs] Indian and Inuit Affairs program...1,442

Even though the present federal devolution policy gives First Nations a degree of participation in and a level of control over the nature and delivery of services, the policy essentially transfers the administration of government-designed programs under the Indian Act to First Nations. This is not aboriginal self-government. For example, many of the Departmental programs, services and administrative responsibilities that have been transferred or have been considered for transfer under "devolution" are premised on the

441 D'Arcy Linklater, above, note 341, at pp. 4-5.

442 The Hon. Tom Siddon, (then) Minister of Indian and Northern Affairs Canada, "The Road to Self-Determination", in Frank Cassidy (ed.), Aboriginal Self Determination (1991), at p. 159.

163 Euro-Canadian model of government, and not on culturally-appropriate models for First Nations. Worse, many of the existing federal programs have, subsequent to their transfer, been subjected to funding cuts or elimination443.

Similarly, the federal process leading to the negotiation of community-based self- government agreements also reflects essentially the same approach taken in program devolution: that is, Departmental acceptance of governing models which allow federal responsibilities to be administered by First Nations.

"[Canada is pursuing] negotiation of community-based self-government arrangements, most of which will require new legislation to remove these communities from the constraints of the Indian Act These negotiations are aimed directly at recognizing the traditional institutions of Indian communities as the appropriate governing authorities... The overriding consideration in all negotiations is that they arrive at practical arrangements tailored to the specific circumstances of the community involved.'

The process of completing individually negotiating self-government arrangements under the present constitutional framework has proven to be a slow one. Even though a total of 134 self-government proposals were received nationally by the Department of Indian and Northern Affairs by 1989, only 5 had proceeded to negotiations by the fall of 1990. These negotiations fall short of any federal recognition of the right to self determination and leave the Department of Indian Affairs as the adjudicator of what is a "practical arrangement" for a given aboriginal community. However, First Nations' control of reserve lands (and the related community planning and regulatory powers) is a particularly attractive feature of this approach to many First Nations with land and economic development potential and where retention of development revenues (such as lease fees and taxation) results from a negotiated self-government agreement.

The differences between traditional First Nation and present-day legal frameworks may obscure any consideration of the basic features of First Nations' self-government and may make the determination of "practical" structures more difficult.

443 For example, in 1991 and 1992, the Economic Development Directorate of the Manitoba Region of Indian and Northern Affairs Canada (INAC) explored means of "devolving" much of the resource sector programming (in particular the wild fur and fisheries components) under the Regional Opportunities Program (ROP) to MKO or another northern First Nations* body. Subsequently, in April, 1993, the entire ROP budget was eliminated by Manitoba INAC and the INAC Economic Development Directorate is scheduled to be phased out as of January 1, 1994.

444 Siddon, above, note 442, at p. 158.

164 There are, however, several features which are common to both aboriginal and non- aboriginal government systems that might assist in conceptualizing potential self- government structures. These features are useful for making distinctions between political/organizational and government structures.

All government systems have at their root two features - Land and Law:

LAND

Recognized territories of use and occupation

Jurisdiction over areas of use and occupation

Defend territories from alienation and encroachment

Stewardship of land and resources

Retention of the economic and other benefits of resource harvesting and development

LAW

Make laws, regulations or collective decisions

Implement and Enforce Laws

Adjudicate Disputes

Ability to call on whole community to support common goals

Allocate community and private resources

All of the examples of "successful" negotiated self-government agreements cited by the federal government incorporate the above elements of government, as well as transfer authority over health, education and social services445. These successful agreements fall into two general groups:

1. self-government as part of the settlement of a Comprehensive Claim and/or settlement of claims arising from development impacts (in particular, hydroelectric development); and

445 For example, see: Siddon, above, note 442, at p. 158.

165 2. self-government of reserve lands where there is considerable economic development potential in these reserve lands and natural resources.

With respect to the first group of agreements, the Cree-Naskapi Act and the recent legislation implementing the Nunavut Settlement Agreement provide considerable powers to aboriginal peoples over both lands and law, in addition to the cash payments that assist in generating the requisite financial base for successful self-government. In the case of the Nunavut Settlement Agreement, self-government by the Inuit is even extended to the remaining non-settlement agreement federal "Crown" lands through the creation of an effectively Inuit-controlled Territory of Nunavut in 1999.

Within the MKO region, the 1977 Northern Flood Agreement (NFA) provided First Nations with monetary compensation and additional First Nations-administered social and economic programs: it did not, however, recognize any significant self-governing powers. Even "protected" lands reserved for the signatory First Nations446 have been allocated to forestry developers and others by the province of Manitoba over the objections of the First Nations signatories and in contravention of the NFA. However, the 1992 Split Lake Settlement Agreement (completed as a "full and final settlement" of the Split Lake Cree Nation's claim under the NFA) describes this First Nation as the "Split Lake Cree Government" and provides increased management control over both reserve, fee simple and provincial Crown lands as well as payments of cash into a trust managed by the Split Lake Cree. However, the Settlement Agreement does not require that resource developers operating in the Split Lake Cree "resource area" (an area roughly equivalent to the Split Lake Cree traditional land use and occupancy area, covering approximately 7% of northern Manitoba) share resource rents with the Split Lake Cree First Nation447.

With respect to the self-government agreements that have been concluded with the Sechelt First Nation448 and the Westbank First Nation (both in British Columbia), these agreements relate only to reserve lands, and the reserve lands to which they relate are extremely valuable for real estate and related developments. The Sechelt Band is located on the British Columbia "Sunshine Coast" in the midst of a resort and "bedroom" community for Vancouver residents and commuters. The large Westbank Band reserve is located in the Okanagan Valley in a rapidly expanding residential area internationally known for its resorts, ranching, fruit orchards and vineyards.

Thus, in the MKO region, the major beneficiaries of individually-negotiated self-government agreements that reflect the conditions for success cited by the federal government are those who are either affected by major developments or are in close proximity to

446 Articles 3, 4 and 15 of the Northern Flood Agreement (1977).

447 Article 5.4.2 of the Split Lake Agreement (1992) at pp. 5-7.

448 Sechelt Indian Government District Enabling Act, S.B.C. 1987, c. 16.

166 urban/industrial development. Of the former type are the 4 First Nations' members of the Northern Flood Committee as well as those with outstanding claims arising from other resource developments. Of the latter type, perhaps only the Opaswayak Cree Nation (and to a lesser extent, the Fox Lake First Nation), possesses the necessary land and economic base for "successful" self-government under the federal model449.

The remaining MKO First Nations' reserves are remote or isolated from centres of urban/industrial economic activity. With the exception of a single potential on-reserve mineral development450, the remaining reserve lands are insufficient to provide a taxation or resource revenue base to support "successful" self-government. All of the major mining, forestry and hydroelectric projects within northern Manitoba are located on provincial Crown lands and are within the traditional territories of use and occupation by the MKO First Nations.

Thus, the recognition of self-government in the MKO region must include the recognition of some form of jurisdiction and revenue-sharing with respect to lands and resources within MKO First Nation traditional territories. MKO First Nations assert that the specific surrender of "lands" under the terms of treaty did not include the rights and interests in the renewable and nonrenewable resources of these lands. Moreover, MKO First Nations take the position that the surrender was only to the federal Crown, not to the provincial Crown.

"... the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and her successors forever, all their rights, privileges whatsoever to the lands included within the following limits... [emphasis added]™.

449 The main Opaskwayak Cree Nation (OCN) reserve is located just across the Saskatchewan River from the town of The Pas. The combined local population exceeds 6 000 persons. The Pas is one of the oldest non-aboriginal communities in northern Manitoba, serving as a government/rail/communications centre, an agricultural region and the location of the REPAP Manitoba saw/pulp mill complex. OCN has built one of northern Manitoba's largest shopping malls on reserve land and is planning more development, including a casino/hotel complex. The Fox Lake First Nation, located near the rail/hydro town of Gillam on the Nelson River, is the only other MKO First Nation situated in immediate proximity to an urban/industrial centre.

450 Recently, gold and titanium deposits have been discovered on the Cross Lake reserve.

451 INAC, Treaty No. 5, above, note 115.

167 As mentioned above (Section 1.1.13), MKO First Nations have always taken the position that the Manitoba Natural Resources Transfer Agreement of 1930 (NRTA) was concluded ultra vires federal authority. Canada failed to consult with treaty signatories regarding the sweeping impacts that the NRTA would have on the ability of Canada to honour resource- related treaty obligations, an inaction that is inconsistent with the obligations of the Crown toward aboriginal peoples and treaty First Nations as set out by the Supreme Court in Sparrow and Sioui.

In addition, Canada has asserted that its fiduciary obligations to honour treaty-based resource harvesting rights were also transferred to Manitoba under the NRTA. Manitoba conveniently asserts that protecting treaty rights is a federal responsibility. This circularity has left MKO First Nations' treaty rights with little protection.

The failure of the federal Crown to uphold its treaty, constitutional and fiduciary obligations toward First Nations with respect to lands and natural resources in the prairie provinces has had the effect of impoverishing MKO First Nations and creating aboriginal environmental refugees. MKO First Nations have received virtually none of the wealth generated through resource developments, and large-scale habitat loss resulting from the widespread and often uncontrolled provincially-authorized development has adversely affected traditional (including commercial) pursuits.

It is clear that any process leading to true First Nations' self-government in the MKO region will be predicated on a judicial review of the constitutionality of the NRTA. In particular, the bilateral relationship between treaty signatories and the federal Crown with respect to the lands and resources provisions of the treaty obligations must be firmly established452.

2.5.5 Honouring the Treaties: Who is Responsible?

Departments of the federal government consistently direct all responsibility to recognize, honour and give effect to aboriginal and treaty rights to the Minister of Indian and Northern Affairs Canada (INAC). That is, where an issue arises that is under the purview of a department other than INAC, such a department will forward all of its communications to INAC for action.

452 A similar judicial review of the First Nations' position that freedom from taxation (e.g. GST and PST), health services and education (including post-secondary) are treaty rights under the meaning of s. 35(1) of the Constitution Act, 1982 is required.

168 For example, in 1989, the Barren Lands First Nation and the Mathias Colomb Cree Nation sought a full federal environmental assessment of the proposed expansion of the Island Falls generating station at Sandy Bay, Saskatchewan. The proposed development would be authorized under s. 5(1) of the Navigable Waters Act, an Act that contains no references to mandatory consideration of environmental matters or of any "Indian interests" affected by a federally-authorized undertaking. As a result, the Minister of Transport forwarded the communications from the MKO First Nations to the federal Ministers of Environment and Indian Affairs for action.

However, neither the Minister of Environment nor Indian Affairs would be "initiating departments" under the terms of the federal Environmental Assessment and Review Process Guidelines Order, 1984. As a result, no direct actions were taken by any federal agency to ensure that the proposal did not impact upon treaty rights453. In addition, any authorization of the proposal under the Navigable Waters Act would perpetuate violations of federal law454: for example, almost 1 300 acres of reserve lands have already been flooded by the original Island Falls development and the related Whitesand control structure.

In another example, the proposed expansion and continued forestry operations of REPAP Manitoba, covering approximately 108 000 km2 of northern Manitoba, will adversely impact the treaty-protected resource harvesting activities of MKO First Nations. However, neither REPAP nor its predecessors455 have ever been required to assess the actual and potential impacts of their operations on resource harvesting activities. Between 1988 and 1993, MKO First Nations consistently pressed the federal Ministers of Indian Affairs, Environment and Fisheries and Oceans for action to protect treaty harvesting rights. These efforts have met with little or no success.

Again, the Manitoba Natural Resources Transfer Agreement, 1930 (NRTA) has created confusion in identifying which level of government is the fiduciary. At present, no federal legislation exists that assigns a federal department the responsibility to monitor and evaluate whether or not the terms of the NRTA are being upheld.

453 In 1990, the Saskatchewan Power Corporation placed its application for the "A" Dam expansion in abeyance, partly due its reluctance to subject the proposal to a full federal environmental review.

454 The Peter Ballantyne First Nation community of South End lost approximately 600 acres; the Barren Lands First Nation lost 660 acres and the Mathias Colomb Cree Nation lost 49 acres as a result of flooding by the Island Falls Dam and related developments. Any taking of reserve lands through flooding must be authorized by the Governor General in Council, under the provisions of s. 35(1) of the Indian Act. The Minister of Transport was advised of this fact by MKO in 1989, but no authorization has ever been provided.

455 Churchill Forest Industries, 1967-1971; Manitoba Forest Products, 1973-1989.

169 As well, the lack of clear federal legislative authority for the protection of treaty rights has ensured that treaty issues affected by massive forestry developments have fallen through these legislative loopholes.

"It was never intended by the Chiefs who went before us that our Treaty rights to resources would only apply to an increasingly smaller comer of our traditional lands not affected by mining, forestry, hydroelectric development or pressure from other non-indian resource users.456

Similar situations and examples exist, particularly with respect to disputes involving federal-provincial jurisdiction over health care, education, taxation and child and family services.

The lack of an effective legislative framework to ensure compliance with and implementation of the terms of treaty by all federal departments forms a major obstacle to both the establishment of a "new relationship" with First Nations and the realization of effective First Nations' self-government. In 1984, the federal government responded to a similar concern (i.e. the lack of a regulatory basis for interdepartmental understanding of environmental assessment) when the Governor General in Council passed the Environmental Assessment and Review Process Guidelines Order (EARP Guidelines). The EARP Guidelines were not only intended to ensure mandatory compliance with environmental assessment procedures among all federal Departments, but also to establish the protocol and process for such compliance. The federal government chose not to prepare an exhaustive schedule of consequential amendments to ensure compliance throughout the federal sen/ice, but rather to pass an overarching regulation binding all federal departments, Crown Corporations and agencies to mandatory environmental assessment.

The courts have subsequently found that the failure of a federal department to implement the EARP Guidelines is justiciable and enforceable457.

In this context, MKO First Nations cannot help but note that many economic development initiatives in Manitoba have taken precedence over 120 year old treaty obligations.

456 Chief Robert Wavey, MKO Submission to the Committee on Manitoba's Forest Strategy (March 15, 1990), at p. 13.

457 This was determined as a result of the Rafferty and Oldman decisions.

170 2.5.6 A Treaties Implementation Act"

From the foregoing discussion, it is evident that legislation calling for comprehensive and independent reviews of all actions, proposals and decisions that affect aboriginal and treaty rights and involve areas of federal responsibility is needed. Such legislation might be called a 'Treaties Implementation Act", and would be similar to the EARP Guidelines Order. However, a Treaties Implementation Act would also provide for federal powers to take action against other levels of government (such as the provinces) in areas where treaty rights are threatened, affected or abrogated. Eventually, a process of developing explicit schedules or articles that specify the manner in which Canada will discharge its constitutional obligations must be initiated for the terms of each treaty.

2.5.3.1 A Treaties Implementation Council and Director

Concurrent with the passage of a Treaties Implementation Act or a similar EARP-like regulation, an independent federal process and agency must be created and assigned the responsibility of developing the specific provisions of the Act. In addition, this agency would be responsible for monitoring and evaluating whether or not the terms of the treaties, through a Treaties Implementation Act or regulation, are being complied with.

Such an agency or 'Treaties Implementation Council" would be comprised of representatives of the federal government, and representatives of each First Nation who is signatory or party to each of the numbered and pre-Confederation treaties. In addition to the monitoring and enforcement role, an initial role of the Council will be to determine explicit schedules for each treaty: these schedules will specify the manner in which Canada must implement its constitutional obligations. This process will be conducted in the spirit of treaty interpretation under the principles outlined by the courts and discussed in Section 2.1.2, above. MKO First Nations are adamant that the treaties are sacred documents: therefore, the purpose of the Council will not be to renegotiate treaties.

The Council will also act in a dispute resolution and arbitration capacity. MKO First Nations note that all the "modern treaties" (i.e. comprehensive land claims and claims arising from resource development claim settlements) contain a dispute resolution and arbitration process as a major component of the terms of settlement458. The numbered and pre-Confederation treaties have no such mechanisms and, as a result, considerable delay, frustration and litigation has often resulted.

458 For example, Article 16 of the Split Lake Settlement Agreement and Article 38 of the Nunavut Settlement Agreement.

171 The Council must also have the power to refer matters directly to the Supreme Court of Canada for legal interpretation, such as the constitutionality of the Manitoba Natural Resources Transfer Agreement.

A Director of Treaty Implementation will be appointed by the Council to oversee detailed implementation of the Act. The Director will have powers and a level of independence similar to those of the Auditor General and Parliamentary Committees. For example, the Director will report directly to the House of Commons regarding the business and reports of the Director, and will have the power of subpoena in order to compel witnesses, including Ministers of the Crown, to obtain information. The Director will also have powers to initiate legal action to enforce compliance of the Act or arbitrated settlements against any federal department, Crown Corporation or agency. The Director will also be able to initiate negotiations with the provinces regarding any matter where treaty rights are affected and will be empowered to initiate legal action to protect rights where negotiations are unsuccessful.

In addition, the Director will have the power to monitor the claims resolution process described below.

2.5.7 Resolution of Outstanding Claims

As discussed above at Section 2.4, the resolution of claims has been a central feature in the negotiation of many self-government agreements: self-government provisions are often a major feature of these modern "treaties". Therefore, an accelerated claims process is a crucial element in the establishment of self-government, and through self- government, a crucial element in the establishment of a new relationship (based on components of the existing one) between First Nations and government.

A large number of outstanding claims in the MKO region have resulted in considerable mistrust, bitterness, frustration and litigation between MKO First Nations and government departments. As mentioned above (Section 2.4), there are three general categories of claims in the MKO region:

1. Claims arising from Treaty;

2. Claims arising from Development; and

3. Claims arising from Government Actions and Policy.

Many MKO First Nations view the resolution of these claims as a pre-requisite of improved relations with government, corporations and non-aboriginal communities.

172 The position of many MKO First Nations respecting claims has, in some instances, resulted in sufficient uncertainty as to whether corporate operations have been affected459.

Within the framework of the Treaties Implementation Act, a timetable and mechanism for the resolution of claims arising from treaty (such as treaty land entitlement) and claims arising from development (such as the flooding of reserve lands and impacts to treaty- guaranteed harvesting rights) must be developed.

2.5.7.1 A "Comprehensive and Specific Claims Act' and Office of the Aboriginal Advocate

Claims arising from government actions and policy are presently incorporated in the federal Specific Claims policy. In general, such claims relate directly to the fiduciary obligations of Canada, and often arise from the somewhat paternalistic actions of government when exercising its powers under the Indian Act*60. As well, disputes have arisen over the fact that the Comprehensive and Specific claims policies are non- enforceable. Therefore, a "Comprehensive and Specific Claims Act" should be implemented to provide for enforcement and judicial review of government actions to settle non-treaty related comprehensive and specific claims.

The powers of the present Indian Claims Commission should be expanded and enabled under the provisions of the Comprehensive and Specific Claims Act to provide the necessary independence and arms-length relationship to government. In addition to a much-strengthened Indian Claims Commission, an Office of the Aboriginal Advocate should be created to ensure that the necessary legal, advisory and research services can be provided on an equal basis to all claimants. In many cases, this may mean that the Aboriginal Advocate ensures that First Nations are able to adequately and independently retain legal counsel and research staff to document, present and negotiate claims.

459 For example, in May, 1991, REPAP Manitoba put its planned expansion of mill and forestry operations on hold for an indefinite period of time. On February 27,1992, REPAP requested that the government of Manitoba renegotiate its Share Purchase Agreement, partly due to opposition received from MKO First Nations with outstanding Treaty land entitlement claims and disputes and litigation regarding provincially-licensed forestry operations in areas protected under the Northern Flood Agreement.

460 One example is the forced relocation of First Nations communities.

173 2.5.8 The Future of the Indian Act

"Reform" of the Indian Act has been discussed since shortly after the Act was passed in 1874. The object of this reform, however,until very recent times, has been tied to a federal policy of assimilation, through elimination of reserves and the protective provisions of the Act. The original intent of the Act was to ensure maximum federal control over "Indians and lands reserved for Indians".

In 1990 the Minister of Indian and Northern Affairs described the Indian Act as "paternalistic and obsolete"461. MKO First Nations agree with this assessment. The present process for negotiated self-government agreements results in individually- legislated implementation arrangements that replace the application of the Indian Act in some cases. However, a wholesale and universal revision of the legislative framework delineating the relationship between First Nations and the federal government is required.

First Nations must have complete powers to establish laws and justice systems, community plans, regulations for the development and management of reserve lands, taxation regimes and the manner of community decision-making and procedures for the selection of leaders. In addition, First Nations must be able to retain revenues that are generated through resource developments, leases of reserve lands and the payment of taxes and fines .

Some features of this new framework will be incorporated in the Treaties Implementation Act and the related legislative provisions establishing the Director of Treaty Implementation. However, matters which flow directly from treaty such as the unique status of reserve lands, freedom from taxation, the inability to chattel and seize First Nations' property, and federal intervention in matters related to provincially-authorized developments must be carefully written into any new legislation.

461 Siddon, above, note 442, at p. 158.

462 At present in the MKO region, arrangements have been negotiated with the province of Manitoba to recover certain taxes paid by First Nations members in businesses that are off-reserve, but within close proximity to MKO communities. For example, such an arrangement applies to a store operating in a neighbouring Metis community, a policy that partly reflects the recognition that a store established in the Treaty/trade era may still be operating. However, fines paid as a result of Circuit Court convictions arising from Band By-laws are paid directly to the Manitoba Minister of Finance.

174 Canada refers to the transfer of federal programs and services carried out by the Department of Indian and Northern Affairs and other agencies463 as a major selling feature of these reforms to the Indian Act. Considerable success has already been achieved in the regional transfer of control over many programs and services from the federal government to MKO First Nations.

Government proponents of the reform or abolition of the Indian Act also tout overall cost- efficiency and savings as an additional benefit. However, MKO First Nations are already massively underfunded in all areas of program delivery and services, community infrastructure and housing. The question is frequently asked: from which budget allocations will cost savings be obtained? MKO First Nations have expressed considerable concern that any transfer under a wholesale reform of the Indian Act will be that of an empty shell of the former federal program and budget levels. In contrast to government hopes for cost-saving, overall expenditures for First Nations' support and infrastructure development must be dramatically increased to reach the same standards achieved by the majority of Canadians. MKO First Nations are very concerned that reform or abolition of the Indian Act and the Department of Indian Affairs may translate into a situation where First Nations have to achieve much more with much less.

With the exception of the necessary and immediate elimination of the most draconian and paternalistic features of the Indian Act, reform or abolition of the Act and Department should only be carried out after enforceable and justiciable commitments have been made to treaty implementation, self-government and financial agreements.

2.5.9 Financial Agreements

A central step toward self-government and the development of a new relationship will be modifying the financial relationship that currently exists between First Nations and government. Some initial steps in these financial arrangements have been identified in negotiated Alternative Funding Arrangements between First Nations and the federal government. However these initial arrangements fall short of the minimum requirements of First Nations, particularly when the objective of effective First Nations' self-government is considered. Some elements of these new arrangements must be:

1. enforcement of existing government obligations under s. 36(1 )(c) of the Constitution Act, 1982, through judicial interpretation if necessary. This provision assures essential public services of reasonable quality to all Canadians. A visit to any MKO First Nation community, or a review of budget submissions, will highlight the vast gap between First Nations' community services and those service levels to which non-aboriginal Canadians have become accustomed;

463 Such as the Department of Health and Welfare Canada.

175 2. an enforceable and justiciable commitment that, consistent with enforcement of constitutional provisions regarding essential services, the minimum financial resources available to First Nations will be in no case be less than the total now budgeted by all departments and agencies for the present federal programs and services related to "Indians and lands reserved for Indians";

3. development of the necessary agreements and process to develop a program of direct transfer payments to First Nations from the federal Treasury Board in a manner similar to those payments provided provinces;

4. at present, the federal government distributes many funds on both a per-capita and formula basis. These budget calculations often do not fully take into account the regional disparities in economic opportunities, unique circumstances in which some First Nations control significant land and resource revenues, isolation, relative resource values and other matters. Such consideration is crucial to the largely isolated communities of the MKO-region boreal forest area. Therefore, in addition to basic transfer payments, a program of equalization payments must be established to place First Nations on an approximately equal national footing;

5. agreements which will ensure that taxes and fines paid by First Nations' members will be recovered by that First Nation; and

6. agreements to provide for gaming operations where a First Nation desires to establish such operations to provide a major component of the economic base.

176 PART THREE - MECHANISMS AND SOLUTIONS

3.0 CONCLUSIONS AND RECOMMENDATIONS

3.1 General Observations

All services provided to MKO First Nations must be community-based, community-paced (i.e. the rate at which First Nations assume control of services must be determined by each community), community-driven, and culturally-sensitive. Local management of programs, development of policies governing community-based initiatives and regional differences must be respected. The inherent right of First Nations to govern the affairs of their people must be recognized and exercised in all areas, including Justice, Health Care, Education, Child and Family Services, Resource Management and Economic Development.

The need to recognize the right to aboriginal self-determination is revealed in the following statements on health care and solvent abuse respectively:

"More quantities of health services as they presently exist are unlikely to produce a significant improvement in Indian health status. Only a major effort by Indians themselves in attacking social injustice, economic exploitation and political emasculation can ultimately fulfil the goal of the highest attainable standard of health for the Indian people of Canada ...*464

Treatment for inhalant abusers should concentrate on improving self-esteem and family and peer relationships, raising educational skills and establishing alternatives to chemical abuse. An important aspect of treatment is adequate aftercare services to allow on-going support from professional counsellors and medical personnel."*65

In short, MKO First Nations must be given the opportunity to exercise their inherent and inviolable right of self-government. Only then will First Nations be in a position to demonstrate that the services they design, implement, control and evaluate are, on balance, at least as effective as the ones they are intended to replace. The MKO "success stories" that have been documented in this submission are already a testament to this fact.

464 Young, above, note 195, at p. 263.

465 Trish Merrithew-Mercredi Nuniyeh Consulting Services Ltd, and the Nechi Institute on Alcohol and Drug Education for MKO, above, note 379, at p. 6.

177 3.2 Principles for Mutual Recognition, Respect and Understanding

Basic themes and principles for mutual recognition, respect and understanding between the MKO First Nations, governments and non-aboriginal Canadians are:

3.2.1 Recognition

1. The recognition that First Nations are distinct societies. With this recognition must come the protection and maintenance of aboriginal languages, cultures, traditions, institutions and communities.

2. The recognition that First Nations are the original peoples of Canada.

3. The recognition that First Nations have never surrendered or ceded the inherent right of self-government over the affairs and lives of First Nations' lands and peoples.

4. The recognition that First Nations, through the treaty-making and land claims processes, have shared the lands, resources and waters of First Nations' territories with all Canadians and have thus provided the primary source of wealth for all Canadians.

5. The recognition that aboriginal and treaty rights are linked to, and include, the right to the continued stewardship, protection, use and benefit of traditional lands and resources.

3.2.2 Honour

6. Implement and fulfil the existing constitutional relationship, including the fulfilment of the terms of treaties, land claims settlements and other agreements signed between First Nations, non-aboriginal governments and non-aboriginal Canadians.

7. Implement and fulfil the existing legislative relationship. Where laws and regulations provide for the protection of First Nations' lands and peoples, ensure that these laws and regulations are enforced and protected from violation by provincial governments, resource developers and other non-aboriginal Canadians.

8. Ensure that all federal and provincial laws and regulations are consistent with aboriginal and treaty rights as entrenched in the Constitution Act, 1982 and as further defined by the courts.

178 9. Encourage governments to refer those issues that require legal interpretation directly to the Supreme Court of Canada, such as: the issue of the constitutionality of the Natural Resources Transfer Agreement (i.e. the Constitution Act, 1930) in light of Sparrow and Sioui; the "medicine chest" and the treaty right to federal medical services; the right to a post-secondary education and the right to freedom from taxation.

10. Ensure that First Nations enjoy standards of housing, community infrastructure, services and economic opportunities that are at least equivalent to the standards enjoyed by the majority of Canadians.

11. Ensure that all matters directly affecting First Nations, under the meaning of s. 91 (24) of the Constitution Act, 1867 are returned to federal jurisdiction, in order to eliminate conflicts between First Nations and the federal/provincial governments.

12. Ensure the full protection by Canada of First Nations interests and rights in areas that fall entirely or partly under provincial purview, such as natural resources, child and family services, health care, education and taxation.

3.2.3 Acceptance and Understanding

13. Accept that First Nations hold and enjoy unique cultural and social values rooted in traditions and customs that derive from close ties between First Nations peoples, families, communities and the lands of their traditional territories and understand that these values are in many ways different from those held by the dominant non- aboriginal Canadian society.

14. Accept that a principle objective of First Nations is to assert the intent, meaning, enjoyment and benefit of aboriginal and treaty rights, and understand that these rights - and any priorities, exemptions and opportunities they may represent relative to the rights of non-aboriginal Canadians -form an inviolable sacred trust between the Crown and aboriginal peoples.

15. Accept that a principle objective of First Nations is to assert and implement the right of self-government respecting the lives and affairs of First Nations peoples and lands, and understand that the process of self-government does not threaten contemporary Canadian society, but provides an important means for a reconciliation between First Nations and non-aboriginal Canadians.

16. Accept the reality of the long record of officially-sanctioned cultural genocide, assimilation and alienation of First Nations, and understand that much of the pain and healing experienced by First Nations peoples, families and communities is a result of the conflict between First Nations' cultural and social values and those of the dominant non-aboriginal Canadian society.

179 1

1 •„ Accept the immense and urgent priority of the task before non-aboriginal Canadians to restore the rightful place of First Nations in Canadian society, and understand that the significant cost and effort associated with this task is directly 1 related to those government policies that marginalized and alienated several generations of First Nations' peoples but failed to assimilate them into the dominant non-aboriginal culture. 1 3.2.4 Independence • • 18. Implement self-government of First Nations through a bi-lateral process between • First Nations and Canada.

• 19. Accelerate the process whereby First Nations governments will deliver all programs and services to First Nations' peoples in a culturally-appropriate and community- based fashion. 1 _ 20. Initiate the restructuring of the Indian Act and repeal the most intrusive features immediately.

21 Dismantle the Department of Indian Affairs in accordance with a restructured Indian • ' Act and First Nations self-government, and at the same time, ensure that First Nations are in direct control of all existing and necessary programs and services.

1 22. Transfer all other federal programs and services not presently provided by the Department of Indian Affairs that affect First Nation-to-First Nation control and administration, such as health, education and economic development programs. I • 23. Draft and implement long-term Revenue Transfer and Equalization Agreements between Canada and First Nations' governments. |• 3.2.5 Consultation • I 24. Any policies, laws or regulations established by Canada or the provinces affecting First Nations or First Nations lands' must not be imposed, and must incorporate (as opposed to conflicting with) First Nations' laws, customs, traditions, institutions, 1 decision-making structures and treaty and aboriginal rights. In all cases, such • decisions must be arrived at in the spirit of consultation. • 25. Any processes, approvals or licences established by Canada or the provinces which authorize or facilitate development affecting First Nations' lands must not be imposed, and must incorporate (as opposed to conflicting with) First Nations' laws, 1 customs, traditions, institutions, decision-making structures and treaty and aboriginal rights. Again, in all cases, such decisions must be made in the spirit of consultation. 1

1 180

1 26. In order to establish meaningful consultative processes, adequate financial and other support must be provided to ensure that First Nations' governments may fully represent the interests of First Nations' peoples through the provision of direct community information and involvement in the consultative process, and through the retention of research specialists and legal assistance if required.

27. The consultative process between First Nations and government must reflect broader First Nations' cultural, social and community interests, values and priorities, and in no case should these processes be inconsistent with the standards established by the Supreme Court of Canada in Sparrow and Sioui.

3.2.6 Participation

28. The right of aboriginal peoples to participate as equals in the process of legislative and constitutional change must be recognized and exercised.

29. First Nations must directly participate in any process of policy, legislative or financial reform, agreement or implementation, whether initiated by federal, provincial, regional or local government, and whenever these processes directly affect the interests of First Nations.

30. First Nations must directly participate in any licensing, assessment or approval process, whether initiated by federal, provincial, regional or local government, and whenever these processes directly affect the interests of First Nations.

3.2.7 Sharing

31. Treaties provided for the sharing of the resources within First Nations' territories among and between First Nations, the Crown and non-aboriginal Canadians. Therefore, aboriginal and treaty rights, and the benefits derived from the exercise of these rights, should remain undiminished as a result of government policy or site-specific development, whether existing or planned. In addition, every effort must be made to restore the enjoyment of these rights in cases where they have been adversely affected by policy and development.

32. Treaties provided for the sharing of the resources within First Nations' territories among and between First Nations, the Crown and non-aboriginal Canadians. Therefore, no First Nation or individual First Nations' member should suffer additional losses to the integrity and diversity of lands traditionally used and occupied, existing commercial and domestic resource uses or other economic activities, culture, health or social and community stability as a result of government policy or site-specific development, whether existing or planned. Again, every effort must be made to restore these rights wherever impacts have occurred.

181 33. Appropriate and adequate distribution of the social and economic benefits to First Nations and First Nations members from developments within lands traditionally used and occupied by First Nations must take place, with all necessary economic, training/educational, monitoring, enforcement and other factors considered and established to ensure implementation.

34. A direct sharing of benefits by First Nations from developments within ecosystems used and occupied by First Nations must take place, with equity participation being the vehicle of this sharing, whether through ownership, royalties or other mechanisms.

35. Joint-management agreements and other approaches must be adopted to recognize the priority resource harvesting rights of First Nations and to balance these rights with government powers. At the same time, the interests of non- aboriginal Canadians in enjoying the harvest of productive habitats within First Nations traditional territories must be accomodated.

3.2.8 Education

36. Equal access to high-quality educational facilities by First Nations' peoples is essential for First Nations to realize the full effect of the exercise of the right of self- government as well as to become active participants in the institutions of contemporary Canadian society.

37. As it is important to continue to build support in the non-aboriginal community for the culture, traditions, language, institutions and aspirations of First Nations, it is essential that First Nations carry out all necessary actions to inform and educate non-aboriginal people, as well as provide the opportunity whenever possible and appropriate for non-aboriginal persons to share in the cultural activities of First Nations. For example, this can be achieved through Friendship Centres, socials, ceremonies and pow wows.

38. As it is important to continue to build support in the non-aboriginal community for the culture, traditions, language, institutions and aspirations of First Nations, it is essential that First Nations assert the language of nationhood at every opportunity in all dealings with every level of government and with the public, in order to promote a changed consciousness within the non-aboriginal governments and population.

39. As First Nations communities and governments make significant contributions to the economies, lifestyles and traditions of neighbouring non-aboriginal communities, it is crucial that non-aboriginal governments and peoples understand the true role that First Nations play contemporary Canadian society. Therefore, it is essential that First Nations carry out all necessary actions to inform and educate the non-aboriginal governments and peoples regarding these contributions in terms of treaty lands, employment, purchasing and taxation.

182 APPENDIX A

TABLES (in numerical order) TABLE 1 MKO FIRST NATIONS' POPULATION AND ACCESS STATISTICS (as of December 10, 1992)

ALL-WEATHER WINTER ROAD RAIL & FERRY FIRST NATION POPULATION ROAD ACCESS ACCESS ACCESS AIR ACCESS Barren Lands (Brochet) 573 X X Chemawawin (Easterville)* 757 X X Sayisi Dene (Tadoule Lake) 561 X X Cross Lake 4 138 X X Fox Lake (Bird) 715 X X Garden Hill 2 474 X X God's Lake 1 692 X X God's River 460 X X Grand Rapids* 631 X X Indian Birch (Birch River)* 226 X X Mathias Colomb (Pukatawagan)* 1 824 X X X Moose Lake* 637 X X Nelson House 2 400 X X Northlands (Lac Brochet) 693 X X Norway House 3 581 X X Oxford House 1 630 X X Red Sucker Lake 564 X X St. Theresa Point 2 091 X X Shamattawa 837 X X Shoal River (Pelican Rapids)* 925 X X Split Lake 2 100 X X Opaskwayak (The Pas)* 2 506 X X War Lake 163 X X X Wasagamach 1 033 X X York Factory (York Landing) 672 X X X

TOTAL 33 883 10 15 3 25 *1990 population figures. TABLE 2 MKO FIRST NATIONS' OUTSTANDING TREATY LAND ENT fTLEMENTS (in acres) 1090 1990 LANDS AMOUNT FIRST NATION POPULATION ENTITLEMENT RECEIVED OUTSTANDING Northlands/Barrenlands 1,170 149,760 11,861 137,899 Sayisi Dene 517 16,544 524 16,020 Fox Lake 607 19,424 4,300 15,124 God's Lake/God's River 1,941 62,112 9,832 52,280 Island Lake 5,767 184,544 18,084 166,460 Mathias Colomb 1,939 248,192 23,265 224,927 Nelson House 2,959 94,688 14,452 80,236 Norway House 3,937 125,984 18,559 107,425 Oxford House 1,532 49,024 12,049 36,975 Shamattawa 749 23,968 5,725 18,243 Shoal River/Indian Birch 1,203 153,984 5,377 148,607 Opaskwayak 2,457 78,624 15,657 62,967 York Factory 624 19,968 2,391 17,578

TOTAL 25,402 1,226,816 142,076 1,084,741

Note: The specific quantum of TLE is subject to negotiation. These are the best estimates available at present, and reflect the current status of unresolved specific claims in the MKO region.

Sources: Treaty and Aboriginal Rights Research Centre (July 1991) and the Aboriginal Justice Inquiry of Manitoba (1991), at p. 168. APPENDIX B

MAPS AND FIGURES (in numerical order) FIGURE 1

MANITOBA KEEWATINOWI OKIMAKANAK FIRST NATIONS Produced by: MKO Natural Resources Secretariat, 1993 Rupert's Land (1670) Source: HBC (1949) n G C 33 m IN) FIGURE 3 130° 110° 90° 70° Canada acquired 'Rupert's Land and the North- western Territory ' in 1870 and changed their name to ' The North-West Territories '. Manitoba was made the fifth province of the Canadian confederation from L a part of them

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MAN.' ( O^'"' • \ . v * 130 o I A »O» fcO * \ o / u N \ T CANADA e d STAT ES \ y' IN 1870 0 no 90° 70 t=1 Pacific Coast A - Robinson Superior,1850 Plateau B-Robinson Huron, 1850 M Mackenzie River C-Williams Treaties, 1923 EE3 Plains D-Treaties of 1781-1857 EUl Algonkian dmU Iroquois E - Douglas Treaties, 1850-54 NORTHLANDS FIRST NATION TRADITIONAL LAND USE FIGURE 6 102

PRODUCED BY:MKO - NATURAL RESOURCES SECRETARIAT 102° 100° Province of Manitoba 1980 ' Cartography by: Surveys and Mapping Branch. Manitoba 1980 FIGURE 8

This map illustrates a typical road development and timber harvesting plan proposed by REPAP in areas not formerly subject to timber harvesting. Within the area of proposed road and forestry development is highly productive moose, woodland caribou and fisheries habitat utilized by the Mathias Colomb Cree Nation. The map reveals the intensity of REPAP's proposed plan, given that the plan was to be implemented within five years. FIGURE 9

SOURCE: Environment Canada, Northern Flood Agreement Manitoba Ecological Report Series No. 891. FISH AND WILDLIFE MANAGEME Putting Rights Into Action

Issue Licences Sport & Comm. Determine Treaty Harvest Needs

Determine Conservation -n Requirements G c 30 First Nation - Government Roles m RESOURCE AGREEMENTS Source: Anderson (1992) MANITOBA DENE/NWT INUIT LAND SELECTIONS FIGURE 11

SCALE PRODUCED BY s MKO-NATURAL RESOURCES SECRETARIAT O IO 26 SO 100 Ka SOURCE OF INUIT LAND USE : NUNAVUT ATLAS CIRC. RES. SERIES 2