Ojibwe Gearing Up for Treaty Hunting and Gathering Case

The potential case concerns wild rice gathering and hunting off reservation and will likely include a habitat protection component. The Minnesota Public Radio article is here.

Cherokee Nation seeking hunting & fishing compact with OK

Here.

Indigenous activists among those killed worldwide for protecting the environment.

Here’s the BBC article.

Navajo Nation Announces Landmark Settlement with the US

On Wednesday, the Navajo Nation announced that it had settled trust claims dating back 50 or more years with the U.S. government.  Ben Shelly, Navajo Nation President, had disclosed in May that an agreement had been reached in principle, but it was not until Wednesday, September 24th, that the settlement was officially announced. The $554 million agreement will  settle claims that the U.S. government mismanaged funds and natural resources on the Navajo reservation for decades.

The settlement will be signed in Window Rock, Ariz. on Friday.

Navajo President Ben Shelly’s announcement can be watched here.

Kirsten Carlson on The Supreme Court of Canada and Aboriginal and Treaty Rights

Kirsten Matoy Carlson has posted her paper, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights,” just published in the American Review of Canadian Studies, on SSRN.

Here is the abstract:

What role do courts play in public policymaking? Fifty years ago, Robert Dahl found that courts largely defer to the political process in public policymaking. Accepted by the majority of scholars today, Dahl’s view suggests skepticism that courts play a significant role in the policymaking process. The few scholars, who concede that courts play a role in policymaking, often see that role as less direct or as in response to public opinion. Using the development of Aboriginal and treaty rights policy in Canada as a case study, I find that the Supreme Court of Canada succeeded in revitalizing the making of Aboriginal and treaty rights policy in the 1990s even without the support of politicians or the public. In 1990, the Court irrevocably altered Aboriginal and treaty rights policy by establishing Aboriginal and treaty rights in section 35(1) of the Constitution and curtailing Parliament’s ability to extinguish these rights. Most notably, the Court reinvigorated the policymaking process by encouraging politicians to revisit Aboriginal and treaty rights policies. When they failed, the Court re-entered the policymaking arena by recognizing and protecting a wide range of Aboriginal and treaty rights from governmental incursion over the next six years. The Court’s emergence as a significant and influential policymaker was the product of historical and institutional forces. While legal mobilization, growing public support, and the judicialization of politics contributed to the development of the Court’s role, I use interviews with political and legal players as well as the Court’s own language to show how the failure of the political process influenced the Court to reinvigorate Aboriginal and treaty rights policymaking. My emphasis on political failure illuminates a more complex relationship between courts, the political process, and policymaking. It also highlights how courts can play an influential role in public policy making.

 

 

California Next to Legalize Online Poker?

The California Legislature has till the end of August 2014 to decide on two bills that would regulate online poker. Both bills are backed by different interest groups, including various tribes. The bills are AB 2291 and SB 1366.

Additionally, the Iipay Nation of Santa Ysabel, CA is moving forward on an online poker site with the intention of adding real money play soon.  This will be an interesting development to keep an eye on and could help set the legal landscape for future tribal online gaming.

Check out this brief blog post on the Iipay Nation’s online poker site: Here

B.C. Supreme Court Decision to Quash Ministry Grant of Timber without Consultation

Decision in Ehattesaht First Nation v. British Columbia here.

Article here.

via @dougswhite

Oral Arguments Today in the Canadian Supreme Court in Keewatin v. Ontario

The case on Harvesting Rights in Treaty 3. Description here:

The case is about Ontario’s authority to issue forestry authorizations in Treaty 3, which covers most of north-western Ontario and extends into Manitoba. After one of the longest and most thorough treaty interpretation trials in Canadian history, Justice Sanderson of the Ontario Superior Court of Justice decided that the Ojibway made treaty in 1873 with Canada, not Ontario. This, coupled with Canada’s exclusive responsibility for “Indians, and lands reserved for the Indians” under the constitution, meant that only Canada had the authority to issue forestry authorizations that would significantly affect Treaty 3 hunting and fishing rights.

A unanimous Court of Appeal disagreed. Relying heavily on the Privy Council’s 1888 decision in St. Catherine’s Milling, the Court held that Ontario’s ownership of Crown lands in Treaty 3 left no role for the federal government in land-use decisions affecting treaty rights. To involve Canada, said the Court, would create an “unnecessary, complicated, awkward and likely unworkable” process.

First Peoples Law firm blog posted the briefs (or factums).

First Nations’ briefs here.

Government’s briefs here.

The Impact of Resource Extraction on Inuit Women and Families in Nunavut

A Report for the Canadian Women’s Foundation was released in January 2014, outlining the impact that resource extraction is having on the Inuit women and families living in Qamani’tuaq, Nunavut. The report contains a literature review and qualitative data as well as a series of recommendations based on the collected data. While much anecdotal information is available about the impact that the extractive industry is having on indigenous peoples around the world, it is nice to see some data that can be used to support anecdotal accounts.

The full report is available here.

The research looked at the following areas:

  • The Work Environment (including issues like sexual harassment and employment opportunities)
  • Material Well-Being/Income
  • Family Relations
  • Addictions
  • Socio-Cultural Concerns

A few excerpts from the report:

Mining is one of the oldest occupations on the planet. It is an industry whose activities, especially in the case of open-pit mining, are very visual. The impacts of these modifications to the landscape also introduce serious environmental risks. It is therefore not surprising that since the early 1970s, a wealth of literature on the topic of mining, extraction industries and sustainable development has been produced. There are far fewer sources that specifically cover the social and gendered impacts of mining—even less that focus explicitly on Indigenous people. Very little material is Inuit-specific. . . .

There is very little evidence in the literature on Indigenous peoples and mining that identifies resource extraction that has been done with thoughtful consultation, support and that has contributed fairly to nearby communities, with little impact on the land, water and people.1

Despite some benefits and exemplary cases,2,3 the majority of sources cite people’s dissatisfaction with the mining process; from discussion, planning, implementation, monitoring, evaluation, to the closure of mines.4,10 The imposition of economic and political structures, Western values and beliefs, displacement, dispossession of lives and culture at considerable social costs are all cornerstones of what many authors describe, in reference to mining and Indigenous peoples, as capitalist and colonial relations.5, 6 Many authors make reference to complicity between the State and extractive industries.1, 10 Although people are identified as having greater access to some degree of income security, the benefits of mining projects are not distributed equally between industry and the people directly affected. 7, 8, 9 Mining projects in the Canadian North have become part of a social and political attitude that can be described as ‘new frontierism’,10 where a great expanse of land and resources are waiting to be discovered and profited from, the benefits of which will ‘trickle down’ to those framed as ‘tragically destitute’. The “anxious”3 arguments for territorial and extractive expansion are reminiscent of a very familiar paternal discourse that associates the Canadian Arctic with Canadian identity and opportunity, in a rhetoric that often leaves out Inuit altogether. ‘The north serves, primarily, “our”—easily understood to mean southern Canadian—interests and aspirations.11 . . . .

The Canadian economy has been, historically, and continues to be focused on resource extraction and development. These activities cannot be viewed without attention to environmental, historical, political, economic and social interconnections. Resource extraction has, and continues to generate considerable controversy and debate among Canadians. Over the past year Canadians have seen 2.5 million rivers and lakes protected by the Navigable Waters Protection Act drop to only 160 with the passing of Omnibus Bill C-45. Proposals for the twinning and expansion of pipelines for the transportation of crude oil across the continent have been moving forward in the presence of oil spills in Alberta and British Columbia and the Lac-Mégantic explosion in Québec. The Alberta tar sands are seen by many to contribute to greenhouse gas emissions and thus global warming; a concern with regard to the environmental and social consequences for Arctic Canada. These developments generate controversy, with some politicians, business people, economists and members of the public focusing on the economic advantages – the contribution of oil sands development to employment and the Canadian economy. The Canadian economy is heavily reliant on the export of resources. In 2010, the energy, forest, agriculture and mining sectors accounted for 60.8% of the country’s exports. Total exports accounted for about 30% the country’s GDP.13 Internationally, countries struggling with poverty increasingly see the export of their mineral wealth as a means for lifting themselves out of poverty and as a way of participating in a globalized capitalist economy.14, 15 Since World War II mining has played an increasingly important critical role in fueling capitalist growth and expansion.14, 16, 17

A growing concern in all economies—increasingly in western European as well as ‘south’ countries—is growing economic inequality and the long-term implications for social well-being and the functioning of civil society. Cheap labour facilitates the accumulation of capital for development.18 The role of resource development in the creation of unequal outcomes and the dispossession of some to the advantage of others is an international concern related to mining and resource development.12 Colonial expansion—internationally—has strong ties to the history of the development of gold and other minerals.19 The history of gold mining—including its recent history—is full of intrigue and controversy. Naylor provides a trenchant portrayal of the recent history of international gold mining, including attention to the technology and environmental implications of the chemicals and processes used to extract gold from ore, and the impact of gold mining on Indigenous peoples.20 Internationally, gold mining continues to generate considerable opposition from Indigenous peoples whose traditional lands – from Papua New Guinea, to Latin America, Australia and Canada—continue to be subject to considerable pressure from the ebb and flow of international desires for ‘glamorous gold’.16

At the same time, there are individuals in the mining industry and companies that are clearly attempting to ‘do things differently’. This is not always possible as mining companies, heavily dependent upon investment and sensitive—as are all corporations—to their share price on Canadian and international stock exchanges, must still live with attention to the ‘bottom line’. Depending on the values, orientation and pressures acting on those responsible for decision- making, the promises made in an impact benefit agreement may get compromised, environmental protection, in an attempt to save money and remain competitive, may be compromised. The pressures operating on management decisions in the mining industry are many. The literature dealing with the social and environmental impacts of mining is overwhelmingly concerned with these realities.

The history of the relationship of Canadians to the Arctic pre-dates confederation and the transfer of lands and resources under the control of the Hudson’s Bay Company and the Arctic islands under the control of Great Britain to the newly formed Canadian state. The colonization of northern lands, peoples and resources proceeds in a fashion that paralleling settlement of eastern and then later, western Canada. Displacement is literally and symbolically critical to capitalist expansion and colonial initiatives.10, 12, 21, 22 Incorporating colonial subjects into developing economies has been a concern related to colonial expansion since the early 1800s. In the Canadian Arctic, Inuit were first employed in the whaling industry. With its collapse just before the First World War, they were integrated into the fox fur trade of the Hudson’s Bay Company. The collapse of the fur trade following the Second World War introduced a period of welfarism with Inuit increasingly dependent for sustenance and survival on the newly-developed liberal welfare state. It was a period where Inuit struggled with an epidemic of tuberculosis, the residential and day schooling of Inuit children, a move from hunting camps to consolidated settlements and, in general, phenomenal social, cultural and economic change. 23

These events had devastating and long-lasting impacts on people’s livelihoods, cultural vitality, self-esteem and both physical and mental health.18, 23 Increasingly, efforts were made to integrate Inuit with the Canadian industrial economy, commencing with employment at the North Rankin Nickel Mine operating on the west coast of Hudson Bay from 1957 to 1962 and the construction of the Distant Early Warning (D.E.W.) Line (1956-57). These efforts are also evident in the development of Nanisivik, a lead-zinc mine developed near the Inuit community of Arctic Bay on the northern tip of Baffin Island. Planning commenced in the early 1970s and the mine operated from 1978 until 2002. It employed around 200 people from neighbouring communities and, along with the Polaris Mine operating on Little Cornwallis Island in the high Arctic, introduced many Inuit to wage employment for the first time.24 Studies have revealed that the long-term or sustainable benefits of these projects for Inuit were few—if any.24 They neither benefited from the infrastructure associated with the mines, nor were investments made in alternative income-generating activities that would sustain Inuit families after the mines were shut down.

Canadian Federal Court of Appeal affirms that 400,000 Métis have Indian status

In a historic decision, Canada’s Federal Court of Appeal today affirmed a 2013 Federal Court ruling that Métis are “Indians” under section 91(24) of the Constitution Act, 1867.  The decision impacts approximately 350,00 – 400,000 Métis in Canada.  The court did not include non-status Indians in the decision, opting instead to decide Indian status for these groups on a case-by-case basis.

From CBC News:  “[The Daniels decision] could be one of the most significant cases dealing with aboriginal peoples in Canadian history,” said University of Ottawa law professor Larry Chartrand in an interview with CBC News. “It has the potential of completely changing the landscape of aboriginal-Canadian relations.”

News reports are here and here.

A copy of the Daniels decision is here.

In a statement posted here, President Clément Chartier of the Métis National Council stated that “I applaud today’s decision of the Federal Court of Appeal in the Daniels case. It reinforces our longstanding position that the federal government has constitutional responsibility to deal with the Métis.”