Jurist Canada’s Treaty 8 First Nations: Alberta must immediately cease all separation activities

[Dadparvar]

The Treaty 8 First Nations of the Canadian province of Alberta wrote a formal letter to Alberta Premier Danielle Smith on Thursday demanding that the province “immediately cease any attempt to proceed with a separation referendum or related process without full consultation, accommodation, and the free, prior, and informed consent of the Treaty 8 First Nations.”

Grand Chief of Treaty 8 First Nations Trevor Mercredi, the author of the letter, also condemned Smith’s characterization of § 35 of the Canadian Constitution as a “legal uncertainty” and reminded Smith that § 35 is not “a policy instrument subject to periodic reinterpretation by the executive branch of a provincial government.” Rather, it is a constitutional provision that recognizes and affirms the Aboriginal and Treaty rights of Canada’s Indigenous Peoples, that has been endorsed by the Supreme Court of Canada through its various decisions.

Indeed, § 35 states in effect: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Additional complimentary provisions within the Constitution clarify such matters as which groups are covered by § 35 (i.e. “Indian, Inuit, and Métis peoples of Canada”) and that the scope of § 35 includes rights that exist by way of land claims agreements.

Mercredi further reminded Smith that the Supreme Court pronouncements are not “errors for a provincial government to ‘correct'” but binding precedent, and that Smith’s suggestion that § 35 should be amended “because its judicial interpretation is inconvenient” to her political objectives is an indefensible position. Mercredi warned that any attempt to amend or weaken § 35 will be understood as a direct attack on Treaty 8 peoples.

Mercredi added:

The duty to consult is not a bureaucratic inconvenience. It is a constitutional obligation that arises whenever the Crown contemplates action, or authorizes processes under its authority, that may adversely affect Treaty rights. A referendum that could result in Alberta’s separation from Canada, and that would place an international border through Treaty 8 territory, represents one of the most profound adverse impacts on Treaty rights that it is possible to contemplate. The suggestion that such a process falls outside the duty to consult is not a tenable legal argument. It is a rationalization…

We note that opposition to your approach to Section 35, the duty to consult, and the separation referendum has been expressed not only by Treaty 8 First Nations, but broadly and consistently by First Nations leaders across Canada. First Nations people and their leaders across Treaty territories have made clear that Canada’s future cannot be determined by bypassing First Nations. We are not stakeholders in a process designed by others. We are Treaty partners who helped build what is now Canada and Alberta, and we must be fully involved as founding Nations in any decisions that affect the future of this country…

The question is not whether Treaty rights will prevail, they will. The question is whether your government will meet its obligations honourably or continue down a course already found unlawful by the courts of this province and condemned by First Nations across the country.

Mercredi also highlighted that the duty to consult is not a fringe legal argument advanced by one or two First Nations, but a constitutional provision affirmed by the courts, supported by legal scholars, and recognized by other heads of government.

Treaty 8 was signed on June 21, 1899 between First Nations and the Crown. It is the largest treaty in Canada by land mass encompassing areas across northern Alberta, northwest Saskatchewan, large portions of Northwest Territories and British Columbia. Provincial electoral authorities in Alberta received a petition for independence from Canada last month, but it was quashed within a week by the Court of King’s Bench of Alberta for the province’s failure to uphold its duty to consult First Nations. Nevertheless, in an act of defiance, Smith announced that the province will proceed with an independence referendum and activities in pursuit of separation from Canada. That announcement drew condemnation from various parties including, Manitoba Premier Wab Kinew and eventually led to this letter from Treaty 8 First Nations. There may also be potential Rule of Law concerns regarding Smith’s move in proceeding with the referendum as opposed to appealing the Court of King’s Bench’s decision through proper legal channels.

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