Simply consulting with Mi’kmaq community no longer enough

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Dancers perform during an annual powwow held on Lennox Island. Participants came from the east coast of Canada and the United States to be part of the event.

By Peter McKenna (guest opinion)

As the minister responsible for Aboriginal Affairs on P.E.I., Premier Robert Ghiz has now been put on notice by First Nations people. And in the very near future, he is going to find out that the dominance-control model of the past will no longer suffice. To be sure, the days of token and sham consultations with the Mi’kmaq of P.E.I. are, for all intents and purposes, over.

If there is one thing that Mi’kmaq Chief Brian Francis (of Scotchfort, P.E.I.) and John Joe Sark, Keptin of the Mi’kmaq Grand Council (for P.E.I. and Pictou, Nova Scotia) agree on, it is that the recent Tsilhqot’in ruling by the Supreme Court of Canada has provincial governments in Atlantic Canada shaking in their boots. This critical decision, according to both Chief Francis and Keptin Sark, is a real game-changer in terms of First Nations-governmental relations going forward.

Significantly, both men made it very clear to me that the Mi’kmaq peace and friendship treaties of the 1700s did not entail any extinguishment of title to the land in Atlantic Canada. For too long, though, those two-way treaties have gone one way — in favour of provincial governments. Now the recent Supreme Court decision has created a re-balancing of those treaties, and in a way that favours the Mi’kmaq nation and the protection of the land for future generations.

The two agree that the Mi’kmaq community — unlike the panic now taking place among justice department lawyers throughout the region — is carefully going through the Tsilhqot’in judgment with a fine-tooth comb. There is also a sense that provincial governments, long used to dictating conditions to First Nations people, will probably sit back and wait until they are forced to respond to the high court ruling.

But when they eventually do have to respond (likely to an impending court challenge), both Francis and Sark expect governments (and perhaps even the business community) to fight them every step of the way. They are hoping that this doesn’t happen, and they make it very clear that they are not actively seeking confrontation (or the return of the land) with either government or industry. Still, they firmly believe that the heretofore imbalance in power has shifted, and that it has shifted significantly in favour of the Mi’kmaq nation.

So, what exactly does that mean? And how will it impact governmental-business-aboriginal interactions in Atlantic Canada?

For them, a duty “to consult and accommodate,” in compliance with previous court decisions, is no longer sufficient.  

Accordingly, governments and businesses must now secure the full consent — which translates into a consensus among all members (on and off-reserve) of the Mi’kmaq nation — before proceeding to develop (in whatever form) the ancestral territory of the Mi’kmaq. Though they are less sure about this, there is a strong sense that the Tsilhqot’in judgment effectively provides them with veto power over future development projects on unceded territory.

It is certainly not my intention here to engage in needless scare-mongering. But we can’t achieve clarity on these important matters if we don’t openly discuss the possible economic, political and financial implications of this Supreme Court of Canada ruling. Sticking our heads in the sand and pretending that nothing has changed is no longer acceptable. Potentially, everything has changed.

Indeed, Mi’kmaq people see themselves as stewards of the land. Therefore, they would likely express serious reservations about shale oil/gas or fracking projects, the damming of rivers for hydro-electric power generation, and the extensive spraying of poisonous pesticides on the land. And under Tsilhqot’in, those concerns could most assuredly not be dismissed or ignored anymore. In fact, they would now seem to have the power to close those types of operations down.

Interestingly, this also opens up all kinds of new possibilities for environmental groups (and other members of civil society) to work in concert with the Mi’kmaq on potential land development projects. It would not be a stretch to imagine a time when they could form an alliance with the Mi’kmaq to oppose an unwelcome resource development project for environmental reasons.

It would surely also be likely that the Mi’kmaq could place certain conditions on any future development projects in Atlantic Canada. For one thing, they would want to make sure that those projects are environmentally safe as well as sustainable. The Mi’kmaq people would also want assurances that a certain percentage of the resource royalties from the development is shared equitably and that aboriginal people have the opportunity to train and work on those same projects.

Of course, the Tsilhqot’in ruling does not have to foster an adversarial and unpredictable policy environment. Both Francis and Sark believe that it would be in the best interests of governments and industry to work co-operatively with the Mi’kmaq and the Maliseet and to create a mutually beneficial partnership. But it has to be a true partnership—and the recent high court decision confers on the Mi’kmaq the actual power to demand it.

After all, Mi’kmaq leaders, and especially those on P.E.I., want what is best for Atlantic Canadians, too.

 

Peter McKenna is professor and chair of political science at the University of Prince Edward Island.

Organizations: First Nations, Supreme Court of Canada, Grand Council University of Prince Edward Island

Geographic location: Atlantic Canada, P.E.I., Nova Scotia

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