Tensions over traditional lands.

AuthorFenwick, Fred R.
PositionSpecial Report on Aboriginal Law and the Environment

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In 2007, the Alberta Government released its Guidelines regarding the consultation process in the development of First Nations "traditional lands", lands outside the reserve, but which the First Nations hunted and used. These are most often the northern areas of the province which are not occupied by non-aboriginal "owners". You might call it "bush"; oil explorers might call it potential oils sands development; and the Alberta Government might call it the surface area of potential mineral lease sales; but the First Nation might call it "homelands" or "hunting grounds".

There have been cases all over Canada about consultation of various types. First Nations in BC have insisted on consultation about forestry use on lands over which they were negotiating a land claim--who wants to win a land claim only to inherit a clear cut? In a very important case in Alberta brought by the Mikisew Cree, the Supreme Court of Canada upheld the right of that Band to be consulted when a road was to be built, not through their reserve, but next to it. The Dene First Nations have from time to time halted the progress of the McKenzie Valley Gas Pipeline over consultation issues.

Why "consultation" and what gives First Nations the right to stand in the way of development on lands that they don't own? It goes back to how it was that Canada made an accommodation with the First Nations occupying the land when the government wanted to bring in immigrants to settle those lands. In 1899, when Treaty 8 was signed with the (largely) Cree Nations in central and northern Alberta, the Government of Canada stated in the Treaty:

And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as before described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. [Emphasis added.] Contained in that short passage is the tension in consultation negotiations today; the tension between the "living off the land" status quo set up by both sides and the suspense of just when those hunting grounds would be "taken up ..." by the government. Clearly, Indian reserves were set up and those ought not to be...

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