On Tuesday April 11, 2023, rabble published a story about the failure of the federal budget to fully recognize self-determination for Indigenous peoples in Canada.
The story pointed out that such recognition would have to include Indigenous communities’ control over natural resources on their territories. Those resources include water, lumber, oil and gas, and minerals.
The story explained that the federal government could not act alone in this regard, because the Canadian constitution grants ownership and control of natural resources to the provinces.
Section 92 of the Canadian Constitution Act of 1867 (formerly called the BNA Act) assigned the “management and sale of public lands”, as well as the “timber and wood thereon”, to the provinces. It also gave provinces control and authority over most of what it called “local works and undertakings” within their territories.
Those provisions were assumed, from the outset, to extend beyond provincial power over forests. Courts and governments acted as though the constitution had awarded provinces control and ownership of all mineral and other subsurface wealth, not just timber.
Since the provisions governing the four western provinces which joined Confederation subsequent to 1967 did not specify natural resources, the federal government passed the Natural Resources Transfer Act in 1930.
That Act made the western provinces’ control of such resources clear.
Plus, in 1982, the provinces and federal government amended Section 92 of the original Constitution Act to unambiguously establish the principle of the provinces’ ownership and control of all natural resources on their territory.
The new section, 92-A, essentially modernizes the 1867 Act. Using 20th century terminology, it refers to “non-renewable resources, forestry resources and electrical energy.”
The new clause states that management, conservation and revenue from all natural resources, and energy derived from them, belong entirely to the provinces.
Provincial governments have always jealously guarded those natural resources powers.
No provincial government has ever indicated a willingness to transfer even a portion of its revenue from resources such as oil and gas to Indigenous communities.
1972 Northern Quebec Treaty is a lone exception
In the early 1970s, the Quebec and federal governments did negotiate a treaty with the Indigenous peoples of northern Quebec which granted Indigenous communities some royalties from massive hydro-electric developments on their unceded territory.
However, the Quebec and Canadian governments only agreed to the James Bay and Northern Quebec Treaty under considerable duress.
The Indigenous people had won a court case stopping the hydro project. Quebec Superior Court judge Albert Malouf set a precedent when he recognized the Indigenous peoples’ Aboriginal rights to the resources on their lands.
Although the government of Quebec won a subsequent appeal, it and the provincial utility, Hydro Quebec, faced the probability of a protracted series of legal cases, which could have significantly delayed a project on which they had already started construction for years.
As well, U.S.-based bankers who were underwriting the hydro project pressured the Quebec government to try for a negotiated settlement with the Indigenous people. The bankers did not want any risk associated with their investment.
And so, a reluctant Quebec government – which had once described the territory on which they planned to construct the hydro dams as an empty wilderness – sat down and worked out a deal with the Cree and Inuit of northern Quebec.
The Northern Quebec treaty of 1972 is a unique exception in recent Canadian history. As a federal official once told this writer, confidentially, “we’ll never do that again”.
The consensus among both federal and provincial officials has been that the Quebec treaty was too generous and gave too much power and control to the Indigenous groups.
Indigenous people have a different perspective.
They are not happy with the fact that the Quebec Indigenous groups were forced to extinguish their existing Aboriginal rights in order to get the benefits of the treaty.
And over the decades since 1972 Quebec Indigenous groups have had to go to court on a number of occasions to force the Quebec and federal governments to fully respect the treaty.
A political prickly issue
Our recent story on the current discussion of Indigenous rights to natural resources pointed to the experience of the Saskatchewan New Democrats. They had included a policy plank recommending assigning some resource revenue to First Nations in their 2011 election platform.
The NDP badly lost that election.
The rabble article suggested the Trudeau government might now want to consider putting the issue of resource control and revenues for Indigenous communities on the table.
It would be a way to signal the federal government believed in genuine rather than mostly symbolic reconciliation with Indigenous peoples.
After rabble published that story, the CBC reported that western Canadian Indigenous leaders are now demanding that the federal government rescind the Natural Resources Transfer Act of 1930.
The Indigenous position is that the 1930 Act ignored their treaty rights.
Federal Justice Minister David Lametti said he would listen to the Indigenous request.
Western provincial premiers reacted with unalloyed fury. They accused the federal government of planning to trample on sacrosanct provincial rights.
Federal Conservative leader Pierre Poilievre jumped in and joined his voice to that of the western premiers – or, at least, those of Saskatchewan and Alberta. The British Columbia premier, an NDPer, has maintained a diplomatic silence on this issue.
And so, Indigenous leaders and federal and provincial politicians have now poked the hornet’s nest of natural resource revenues.
Indigenous peoples had no role whatsoever in writing any of the constitutional rules governing natural resources.
Nobody consulted them in 1867.
The federal government did not seek their input in 1930.
And even in the early 1980s, when prime minister Pierre Trudeau negotiated the current iteration of the constitution with the provincial premiers not a single Indigenous person was in the room, not even as an observer.
The ire of the western premiers, today, in 2023, is predictable, if not entirely justifiable.
But despite the white leaders’ thunder and brimstone, is it possible the time has finally come to include the First Peoples of Canada in talks about the future shape of this country?
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Nick Seebruch, editor
