First Nations Blockade Violates Treaty Promises

In February of 2021 members of the northern Saskatchewan Birch Narrows Indian band erected an illegal blockade of a road on Crown land preventing surveyors working for a Toronto uranium exploration company, Baselode Energy, from accessing other Crown lands to perform survey work. The work was authorized by a permit issued to Baselode by the Saskatchewan Ministry of Environment. The band justified the illegal blockade on the basis that Baselode “started surveying the band’s traditional territory without (the band’s) consent.”

“It was very disrespectful, totally uncalled for,” Birch Narrows Chief Jonathon Sylvester said, “This is not being done properly.”

Birch Narrows further said that it wanted a detailed wildlife and habitat impact study conducted before any survey work was done. A band member, who was the first to raise the blockade, alleged that the surveying activity would disturb his trap line.

Stephen Stewart, the chair of Baselode’s board, said in an interview that “the company obtained all necessary provincial permits.” He said that “the initial survey would have next to no environmental impact.”

A Saskatchewan government official said that “Birch Narrows was given ample time to voice any concerns” and that in this exploration work “there will be no drilling or digging.” The official added that “a traditional land-use study is not required by law” and that “deliberately blocking Crown lands is illegal.”

The blockade is no longer up but “Birch Narrows members are patrolling the area regularly.”

(All quotes from Jason Warick, Saskatchewan First Nations erects blockade after company enters territory without consent, CBC Online News, Posted February 21st, 2021.)

Birch Narrows conduct here, including their ominous “patrolling”, constitutes a grave and dishonourable violation of their treaty obligations owed to the Province of Saskatchewan and Canada and a violation of their moral obligations owed to Baseload, Baselode’s surveyors, and anyone else delayed, put to expense or otherwise negatively affected by their wrongful conduct. To use Chief Sylvester’s words, it’s “disrespectful, totally uncalled for” behaviour on the part of Birch Narrows.

The Canadian public discourse is filled with usually baseless accusations by Indigenous groups of allegedly “broken treaties”, with the Crown always named as the guilty party. But treaties, like all other forms of agreements, are two-way streets. Each treaty party has rights but also corresponding obligations. As Dalhousie University Schulich School of Law Professor Constance MacIntosh recently said:

Treaties are a part of the Canadian Constitution, they are binding legal instruments, they are not discretionary. And they set out obligations on each side, which binds both parties. (Italics added.)

(Matt Reeder, Ask an Expert: Indigenous Law Scholar Constance MacIntosh on Modern Misconceptions About Treaty Rights, Dalhousie University News, October 1st, 2020.)

The Supreme Court of Canada, in the oft-cited Badger case, (1996 1 SCR 771) said:

A treaty represents an exchange of solemn promises between the Crown and various Indian nations. It is an agreement who nature is sacred. (italics added)

Clearly, as stated, treaties were and are, both in wording and intent, two-way streets.

But the way things have played out in recent decades treaties with Indian bands have been regarded as only one-way streets in their favour, carrying only rights but no obligations on their part. The effect of this has been in practice to absolve them of upholding their side of these now so-called “nation to nation” agreements.

The Birch Narrows situation illustrates this.

The Birch Narrows band is a signatory to Treaty 10, signed in 1906. In exchange for the band “surrendering and yielding up” to the Crown “all their rights, titles and privileges whatsoever to the lands” covered by the treaty, the Crown promised signing bonuses, agricultural and fishing assistance, a paid schoolteacher, annual annuities, reserves and the right to hunt, trap and fish “throughout the tract surrendered,” but very importantly “subject to such regulations” (laws) as the government might subsequently make, (“the Crown laws exception”), “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”  (“the lands taken up exception”).

In my opinion the lands taken up exception constituted an agreement- a promise- by the band that they gave up their right to hunt, trap and fish on Crown and private lands taken up by the Crown and released, whether by Crown patent or otherwise, for settlement and all other civilizational activities, including, as here, mining and mining surveying.

Accordingly, in my opinion the rights of the Birch Narrows band member to harvest on this trap line are, in the final analysis, at the very least subject to and superceded by the rights of Baseload to conduct surveys given to it by the provincial permit, and where there is a conflict in the exercise of those rights, the rights of Baselode prevail. (In any event, on the facts here, no such final analysis need be done. The rights of all parties can easily co-exist and be exercised simultaneously. Birch Narrows is being totally unreasonable here to suggest and act otherwise.)

In my opinion the Crown laws exception constituted an agreement by the band that their right to hunt, trap and fish, so long as those rights are not extinguished by the Crown taking up activity and can be exercised elsewhere, was and still is subservient to Crown laws of general application, (the “regulations” referred to), whether federal or provincial.

The Birch Narrows band has no legal right to block the surveyors from doing their jobs. The Saskatchewan Land Surveyors and Professional Surveyors Act prohibits any person, which includes all Birch Narrows band members, from preventing or hindering a surveyor engaged in survey work from passing over any lands, public or private, and makes it a summary conviction offence for doing so. By blocking surveyors from doing their jobs Birch Narrows is breaking both the law and their “sacred” treaty promises. (See immediately below.) The police should stop this wrongful behaviour.

Birch Narrows made further promises in Treaty 10:

They promised “to conduct themselves and behave themselves as good and loyal subjects of the Queen”. By disloyally suggesting, as most Indian bands do now, that they are a “separate nation” not necessarily bound by all the Queen’s laws, and by their disloyal and wrongful conduct in violating the Queen’s’ laws here, Birch Narrows has broken this promise.

They promised that “they will in all respects obey and abide by the law.” Birch Narrows has broken this promise as well.

They promised that “they will maintain peace between each other and others of Her Majesty’s subjects.” Another promise broken.

They promised that “they will not molest the person or property of any inhabitant” of the lands surrendered by the treaty. Another promise broken.

They promised that “they will not molest or trouble any person passing or travelling through” the lands surrendered by the treaty. Another promise broken.

They promised that they would assist law enforcement authorities in bringing to justice any band members “breaching the Treaty or infringing the law in force in the country.” Not only is Chief Sylvester refusing to assist the police in stopping this unlawful behaviour, he’s leading it. He’s as guilty of breaking the law and breaching the treaty as is the trapper, the “patrollers” and every other band member involved.

It’s an overlooked fact that many of Canada’s treaties with Indian bands contain these routinely ignored promises. Inexplicably they never seem to be brought into the legal mix in Crown-Aboriginal legal disputes despite their obvious relevance, particularly in injunction situations.

The Robinson treaties of 1850, covering all the Canadian lands draining into Lakes Huron and Superior, contains a treaty promise made by the Indian band signatories that they will never “hinder or prevent persons from exploring or searching for minerals or other valuable productions” on the surrendered lands.” All the numbered treaties effecting the Aboriginal surrender of the lands presently comprising Northern Ontario, Manitoba, Saskatchewan and Alberta, starting with Treaty No. 1 in 1871, contain promises similar to those in the Robinson treaties and the promises contained in Treaty 10.                

The Birch Narrows band would argue that they have the aboriginal right to erect this blockade pursuant to section 35(1) of the Constitution Act, which states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

But these rights never included the right of aboriginals to, on a whim, block public roads and violate other federal or provincial laws like the Land Surveyors and Professional Surveyors Act. Indigenous Canadians have always been subject to all laws of general application in relation to all of their off-reserve conduct.

Before 1982 aboriginal rights could be surrendered by treaty between the Crown and aboriginal bands. ((Jack Woodward, Native Law, Thomson Reuters 2019, chapter 5, paragraph 790) This is what happened here. By the terms of Treaty 10 it can be strongly argued that the Birch Narrows band surrendered all the rights it is now wrongfully claiming, and by asserting them, particularly in the unlawful manner they are so doing, they are breaking the sacred treaty promises their forefathers made.

The band argues that they are acting lawfully because they have the right to be “consulted and accommodated” in relation to any activities on public lands that would adversely impact their hunting, trapping and fishing rights. For the reasons above and, in addition, on the facts of this case, this argument is untenable. Except for temporary footprints left, surveying of land, in many ways a purely abstract endeavour, involves no physical impact on the land whatsoever. And, as stated, under no circumstances does the right to be consulted and accommodated include the right to violate provincial or federal law.

While one would never know it based on the shameful lack of government or police response to them, all Aboriginal off-reserve blockades of any kind are illegal.

If the Birch Narrows band is half the “self-governing nation” they say they are, they should, as any self-respecting nation would, act honourably and respectfully towards their treaty partners- just as they in turn expect to be treated- and immediately cease breaking their sacred treaty promises.

Peter Best

March 4, 2021

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