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“The straw that broke the camel’s back” Sprawling omnibus bills spark lawsuit

Author: 
By David P. Ball Windspeaker Contributor OTTAWA
Volume: 
30
Issue: 
11
Year: 
2013

As Idle No More explodes across the country–galvanized, at least initially, by controversial omnibus legislation–two First Nations in Alberta have taken the federal government to court over the matter.

On Jan. 8, arguing that the Crown’s “failure to consult” on the sweeping bills–affecting everything from the protection of waterways, fisheries, industrial development and more–violated their treaty rights, Mikisew and Frog Lake first nations launched a legal challenge against the newest legislation, Bill C-45, and its equally controversial predecessor, Bill C-38.

“There’s been so much legislation pushed by us without any proper consultation with us over the years,” Chief Steve Courtoreille of Mikisew First Nation told Windspeaker. “It’s impacted our treaty rights. C-38 and C-45 were just the last straw that broke the camel’s back.

“The federal government continues to ignore us. They have put us in a position where we have no other choice to protect our treaty rights, and also to protect the environment. It put us in a reactive mode; we had no other choice than to take a legal challenge.”

At a press conference in Ottawa, Robert Janes, the lawyer representing the two bands, told reporters that Mikisew and Frog Lake bands depend on waterways and lakes that could be endangered under the two bills.

The omnibus legislation reduces the number of protected rivers in Canada, guts fish habitat safeguards, speeds up the environmental assessment process, and more, he argued.

“There are literally thousands of rivers and streams, small lakes—including Frog Lake—that are no longer protected,” he said. “If we look at the area around Mikisew, it’s essentially a vast inland delta; it’s actually the second-largest inland delta in the world.

“And there are a vast number of navigable waters, many of which don’t have formal English names, which are no longer protected. Many of these would be dug up, covered, or otherwise changed by oilsands development, other development. It’s literally in the area of thousands of rivers and steams.”

In 2005, Mikisew First Nation won another court case over the government’s failure to consult it on the construction of a road through its territories. And while Janes acknowledged the current lawsuit is unlikely to overturn either omnibus legislation, the case could set a precedent by forcing the government into consultations over legislation more generally.

Both communities are located in the vicinity of the controversial oil sands megaproject–considered the largest industrial project on Earth–affecting a vast swathe of Boreal forest. With extraction projects often tied up in environmental reviews and application processes, Courtoreille believes the federal government is sending a message that Indigenous territories are open for business.

“These bills have gutted environmental protection [for] our traditional territories and the Canadian environment as a whole,” he told Windspeaker. “They’ve done this with no consultation with us or any other Canadian.

“There’s a big push from [industry] to give them a green light in areas they want to go, instead of going through a host of community consultations. They want a green light, and that’s what the government is doing by passing these two bills…, reducing federal environmental protection for Canadian waters and lands.”

Many Indigenous activists, analysts and leaders alike have raised alarm over the two massive omnibus bills, both of them hundreds of pages long and containing dozens of unrelated pieces of legislation.

“We’re concerned that changes in regulatory regimes–efforts to “streamline”–would overstep our rights,” Assembly of First Nations National Chief Shawn A-in-chut Atleo told Windspeaker.
“Those efficiencies can’t be obtained by overstepping First Nations treaty rights, not only the common law on consultation and accommodation, but more importantly the higher international standard of free, prior and informed consent.
“Governments are continually and unilaterally determining legislation like this... It puts our First Nations in a deeply reactive position. It can only result in conflict if our rights are not being respected, if the right to free, prior and informed consent is not there.”

Likewise, Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, railed against the omnibus legislation.

“It’s going to impact us in a profound way,” he said. “And it’s certainly going to provoke a reaction in terms of us being hard-pressed to protect the integrity of the environment of our territories.”

Aboriginal Affairs declined Windspeaker’s request for comment, arguing that the matter fell under the departments of Fisheries and Oceans, and Transport. The government has yet to respond to the court case, Courtoreille said.

But after the high-profile meeting with chiefs in Ottawa on Jan. 11, Aboriginal Affairs Minister John Duncan said that his government will not repeal either Bill C-45 or Bill C-38.

“We’re quite comfortable that we have met our constitutional obligations with those bills and we believe there is every reason to proceed,” said Duncan.
And while the Idle No More movement has expanded its focus more broadly on decolonization since its first day of action on Dec. 10, it saw its genesis in teach-ins against Bill C-45, as well as a now-infamous chiefs’ scuffle with security on Parliament Hill a week earlier.
Courtoreille said that while the current lawsuit is focused on his nation and Frog Lake, other nations will undoubtedly be impacted, and could join on as interveners.
He added that plans for the lawsuit were already in the works when Idle No More launched, but that he supports the movement’s goal of uniting Canadians and Indigenous peoples behind a common agenda.

“Our lawsuit was already in discussions [when Idle No More began],” he explained. “We knew it was coming down but we didn’t know how soon.

“The Idle No More movement is a non-political movement at the grassroots level. We support [them] for what they’re doing, raising awareness and consciousness.”

The Mikisew leader said he hopes all Canadians–not just First Nations–wake up to the dangers of Bills.

“All Canadians should be looking at this very seriously and be concerned about what the government is doing,” he said. “It’s not only a First Nations issue, but an issue for all Canadians.

“It’s time now the country pulls together on this very issue to make the Government of Canada rethink their plan.”

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