<\/p>\n\n\n\n
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 \u201cstarted surveying the band\u2019s traditional territory without (the band\u2019s) consent.\u201d<\/p>\n\n\n\n
\u201cIt was very disrespectful, totally uncalled for,\u201d Birch Narrows Chief Jonathon Sylvester said, \u201cThis is not being done properly.\u201d<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
Stephen Stewart, the chair of Baselode\u2019s board, said in an interview that \u201cthe company obtained all necessary provincial permits.\u201d He said that \u201cthe initial survey would have next to no environmental impact.\u201d<\/p>\n\n\n\n
A Saskatchewan government official said that \u201cBirch Narrows was given ample time to voice any concerns\u201d and that in this exploration work \u201cthere will be no drilling or digging.\u201d The official added that \u201ca traditional land-use study is not required by law\u201d and that \u201cdeliberately blocking Crown lands is illegal.\u201d<\/p>\n\n\n\n
The blockade is no longer up but \u201cBirch Narrows members are patrolling the area regularly.\u201d<\/p>\n\n\n\n
(All quotes from Jason Warick, Saskatchewan First Nations erects blockade after company enters territory without consent<\/em>, CBC Online News, Posted February 21st<\/sup>, 2021.)<\/p>\n\n\n\n Birch Narrows conduct here, including their ominous \u201cpatrolling\u201d, 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\u2019s surveyors, and anyone else delayed, put to expense or otherwise negatively affected by their wrongful conduct. To use Chief Sylvester\u2019s words, it\u2019s \u201cdisrespectful, totally uncalled for\u201d behaviour on the part of Birch Narrows.<\/p>\n\n\n\n The Canadian public discourse is filled with usually baseless accusations by Indigenous groups of allegedly \u201cbroken treaties\u201d, 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<\/em>. As Dalhousie University Schulich School of Law Professor Constance MacIntosh recently said:<\/p>\n\n\n\n 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, <\/em>which binds both parties. (Italics added.)<\/p>\n\n\n\n (Matt Reeder, Ask an Expert: Indigenous Law Scholar Constance MacIntosh on Modern Misconceptions About Treaty Rights<\/em>, Dalhousie University News, October 1st<\/sup>, 2020.)<\/p>\n\n\n\n The Supreme Court of Canada, in the oft-cited Badger<\/em> case, (1996 1 SCR 771) said:<\/p>\n\n\n\n A treaty represents an exchange<\/em> of solemn promises between the Crown and various Indian nations. It is an agreement who nature is sacred<\/em>. (italics added)<\/p>\n\n\n\n Clearly, as stated, treaties were and are, both in wording and intent, two-way streets.<\/p>\n\n\n\n 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<\/em> of these now so-called \u201cnation to nation\u201d agreements.<\/p>\n\n\n\n The Birch Narrows situation illustrates this.<\/p>\n\n\n\n The Birch Narrows band is a signatory to Treaty 10, signed in 1906. In exchange for the band \u201csurrendering and yielding up\u201d to the Crown \u201call their rights, titles and privileges whatsoever to the lands\u201d 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 \u201cthroughout the tract surrendered,\u201d but very importantly \u201csubject to such regulations\u201d<\/em> (laws) as the government might subsequently make, (\u201cthe Crown laws exception\u201d), \u201cand saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes\u201d<\/em> (\u201cthe lands taken up exception\u201d).<\/p>\n\n\n\n In my opinion the lands taken up exception constituted an agreement- a promise- by the band that they gave up<\/em> their right to hunt, trap and fish on Crown and private lands taken up<\/em> 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.<\/p>\n\n\n\n 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.)<\/p>\n\n\n\n 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<\/em> subservient to Crown laws of general application, (the \u201cregulations\u201d referred to), whether federal or provincial.<\/p>\n\n\n\n The Birch Narrows band has no legal right to block the surveyors from doing their jobs. The Saskatchewan Land Surveyors and Professional Surveyors Act<\/em> 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 \u201csacred\u201d treaty promises. (See immediately below.) The police should stop this wrongful behaviour.<\/p>\n\n\n\n Birch Narrows made further promises in Treaty 10:<\/p>\n\n\n\n They promised \u201cto conduct themselves and behave themselves as good and loyal subjects of the Queen\u201d<\/em>. By disloyally suggesting, as most Indian bands do now, that they are a \u201cseparate nation\u201d not necessarily bound by all the Queen\u2019s laws, and by their disloyal and wrongful conduct in violating the Queen\u2019s\u2019 laws here, Birch Narrows has broken this promise.<\/p>\n\n\n\n They promised that \u201cthey will in all respects obey and abide by the law.\u201d<\/em> Birch Narrows has broken this promise as well.<\/p>\n\n\n\n They promised that \u201cthey will maintain peace between each other and others of Her Majesty\u2019s subjects.\u201d <\/em>Another promise broken.<\/p>\n\n\n\n They promised that \u201cthey will not molest the person or property of any inhabitant\u201d<\/em> of the lands surrendered by the treaty. Another promise broken.<\/p>\n\n\n\n They promised that \u201cthey will not molest or trouble any person passing or travelling through\u201d <\/em>the lands surrendered by the treaty. Another promise broken.<\/p>\n\n\n\n They promised that they would assist law enforcement authorities in bringing to justice any band members \u201cbreaching the Treaty or infringing the law in force in the country.\u201d<\/em> Not only is Chief Sylvester refusing to assist the police in stopping this unlawful behaviour, he\u2019s leading it. He\u2019s as guilty of breaking the law and breaching the treaty as is the trapper, the \u201cpatrollers\u201d and every other band member involved.<\/p>\n\n\n\n It\u2019s an overlooked fact that many of Canada\u2019s 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.<\/p>\n\n\n\n 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 \u201chinder or prevent persons from exploring or searching for minerals or other valuable productions\u201d<\/em> on the surrendered lands.\u201d 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. <\/p>\n\n\n\n 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 \u201cthe existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.\u201d<\/p>\n\n\n\n But these rights never included<\/em> 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<\/em>. Indigenous Canadians have always been subject to all laws of general application in relation to all of their off-reserve conduct.<\/p>\n\n\n\n Before 1982 aboriginal rights could be surrendered by treaty between the Crown and aboriginal bands. ((Jack Woodward, Native Law<\/em>, 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.<\/p>\n\n\n\n The band argues that they are acting lawfully because they have the right to be \u201cconsulted and accommodated\u201d 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n If the Birch Narrows band is half the \u201cself-governing nation\u201d 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.<\/p>\n\n\n\n Peter Best<\/p>\n\n\n\n March 4, 2021<\/p>\n