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SCC rulings suppress Indigenous peoples’ rights to their land

Tracey Lindberg holds the University Chair in Indigenous Laws, Legal Orders and Traditions and is a professor of Law at the Faculty of Law, Common Law Program, University of Ottawa. Angela Cameron holds the Greenberg Chair in Women and the Legal Profession at the Faculty of Law, Common Law Program, University of Ottawa.

This week, the Supreme Court of Canada addressed Indigenous peoples' rights to their own territory in two historical decisions about exploitation of Indigenous territories and resources. They also impact Indigenous authority and agency by allowing Canada to define and suppress Indigenous rights.

The first ruling addressed the rights flowing through the Chippewas of the Thames (Anishinaabe peoples/nation) territory. The Supreme Court upheld the decision of the National Energy Board (NEB), an "arm's length" regulatory body that regulates pipelines, energy development and trade. That NEB decision established that Canada and Canada's administrative tribunals, can exercise their authority in allowing or disallowing economic activities in Indigenous territories.

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The second ruling was about the NEB's consultation with the Inuit of Clyde River, about Indigenous rights to their lands. In this case, the Supreme Court quashed the NEB's decision, and said the consultation process was not sufficient. While this is a small but significant victory, it also endorses increasingly less authoritative "management" of Indigenous peoples rather than acknowledging Indigenous autonomy and land holdings. It also asserts the lower limits of this decision-making power, laying out circumstances where the process will be deemed too flawed to stand. This is an extremely low bar.

What is really going on here? Simply, the Supreme Court of Canada has legally empowered Canada's lower level administrative agencies to make decisions about Indigenous rights in venues where they should not have that authority. In a cynical sense, you could say that Canada is allowing corporations access to Indigenous peoples' territories and lives with a diminishing/nominal requirement of administrative box-checking. Indigenous rights negotiation and nation-to-nation dialogue are pushed further away from Canada as a nation.

This story is a familiar one. At one time, Canada professed to give its staff (from superintendent general of formerly Indian Affairs all the way down to Indian agents, over time) authority to administratively manage Indian peoples and lands. Agents, without any regard for Indigenous nationhood or authorities, made decisions to erase Indigenous peoples from the Indian register, to survey and allocate Indigenous lands without Indigenous authorities or approvals and engaged in a system within which Indigenous peoples needed Indian agent approval to move in and out of their own territories and reserves (the pass system).

The Chippewas of the Thames case mirrors this transition from national obligation fulfilment, to administratively managed concern by entrenching and extending that authority to Canadian administrative bodies and boards. This decision enhances that power and puts Indigenous groups and nations at a disadvantage in terms of being able to assert their rights and have them acknowledged in larger nation-to-nation processes. How much "arm's length" power is housed in the NEB and how will the board acknowledge Indigenous nationhood in their processes? In making your mind up about that, consider this: Research shows that, as of 2015, the NEB had never stopped a development project on Indigenous lands.

The Inuit of Clyde River were able to stop this particular "project" (seismic testing in the Arctic). This represents a small, but significant victory for the Clyde River Inuit, but it does not radically alter consultation processes with Indigenous communities going forward. The Supreme Court held that the, frankly dismal, consultation process undertaken by the NEB on this project sets a floor for "bad" consultation practices. The NEB will no longer be able to "consult" in a way that fails to answer questions by Indigenous peoples, and doesn't allow Indigenous peoples an open forum. The NEB process risks becoming adjudication through consultation – going around the legal issue of Indigenous rights and rightfulness by establishing a checklist of "must dos" to get NEB consultation approved.

Neither the "good" nor the "bad" consultation processes judged by the Supreme Court come close to the kind of nation-to-nation discussion that needs to take place when a third party wants to engage in activities that threaten or destroy Indigenous lands or Indigenous ways of life.

Both consultation modes fail to address Indigenous territoriality and responsibility for their lands. When we (and we, in this instance, means Indigenous peoples, Indigenist peoples, and Indigenous activists and allies) get a victory from the Supreme Court, we often think of it as "less disastrous" than as a "victory." It might be better to ask what a victory would look like and what purpose it would serve. Fully, a reconciled/reconstituted/respectful approach would be open discussions and admissions of Indigenous authorities over Indigenous lands, in accordance with Indigenous laws. Legally and institutionally, Canada needs to commit to the understanding that Indigenous law is alive, is operational and authoritative. Administratively, an initial start might be setting up duty to consult structures that honour the nation-to-nation relationship. This would necessitate including carefully and thoughtfully selected, well-trained decision-makers that include Indigenous peoples, and non-Indigenous peoples who have received training in Indigenous laws and legal orders.

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It is time for Canada, Prime Minister Justin Trudeau, Indigenous and Northern Affairs Minister Carolyn Bennett, and the Department of Indigenous Affairs to answer: What is the true commitment to Indigenous peoples? How will you honour nation-to-nation as a principle, policy and legal fact? For, in truth, as long as we look to Canadian institutions to resolve issues impacting Indigenous peoples, we are not talking about Indigenous nationhood or territoriality, we are talking about reification and compounding Canadian authority over Indigenous peoples.

The Canadian government has an opportunity and obligation to state clearly and unequivocally its commitment to do more, be better and demonstrate its commitment to Indigenous peoples, laws, and lands by doing better and more than required by the Supreme Court of Canada.

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