There is key wording in these treaties, stretching from the Quebec border to the Rocky Mountains, that has decided ownership in the eyes of the Crown.
“If your forebears signed a treaty with the phrase ‘cede, release and surrender’ in it, this case will not help, it will not even be of interest to you because the Aboriginal title issue here is settled,” said Gallagher.
But even that really shouldn’t matter, he added, considering the unprecedented string of legal wins by First Nations across Canada and their growing business and labour involvement in resource development projects across Ontario.
“Here in Ontario, they’ve already won,” said Gallagher, a former federal negotiator at the director-general level in the resources sector.
His book, Resource Rulers; Fortune and Folly on Canada’s Road to Resources, details how First Nations have repeatedly won case-after-case on natural resource projects and now have a major say in the economic fortunes of this country.
“The First Nations can stop winning any day now,” Gallagher told Northern Ontario Business. “They’re closing in on 200 legal wins; they’ve filled in whatever blanks that needed filling in terms of the treaties, and they’re sweeping the floor with industry – who are not fleet of foot – and basically have racked up the biggest winning streak in Canadian legal history.
“My message to the First Nations is it’s time to commercialize these wins, and my message to Ontarians and industry is that it’s time to recognize that (First Nations and Metis) are powerbrokers.”
Gallagher said First Nations have achieved victory through a combination of protests, legal wins, skilful negotiations with government, alliances with environmental groups, and the use of social media to court public opinion.
In a June 26 news release, Ontario Regional Chief Stan Beardy heralded the B.C. land title ruling as a “significant step” which will have an impact on mining and pipeline projects in this province and will help clarify relations between First Nations, business and government.
“This precedent will have implications for major projects being planned in Ontario like the Ring of Fire, Energy East and Line 9B,” said Beardy in a statement. Beardy was not available for an interview.
“Hard to believe,” said Gallagher, opining that Beardy was merely “riding the coattails” of a major win in a different legal landscape.
To wind the clock back, Gallagher said, Ontario’s early administrators knew Aboriginal people held some sort of land title otherwise they wouldn’t have negotiated treaties. Around the turn of the last century, treaty negotiators were sent to Northern Ontario (such as in the case of Treaty 9) and Western Canada to clear the way for settlement and industry.
There may be a moral argument that First Nations didn’t know what they were signing, or giving away, and that these century-old treaties should be re-opened, modernized and updated, but don’t count on government to make that move, said Gallagher.
“For First Nations (in Ontario) to say that this case might help them, they have to undo the damage that was done 100 years ago. And so far, governments are sticking to the script. There are treaties and they apply.”
In the Maritimes and parts of Quebec, the British Crown’s Peace and Friendship Treaties with First Nations, signed in the 1700s to avoid hostilities, do not include the “cede, release and surrender” provision. The Supreme Court has already ruled that the Aboriginal title question has not been resolved in that region.
Whereas the facts of the B.C. case won’t apply on the East Coast, Gallagher said, “the legal logic will (apply).”
But on the West Coast, the ruling “has finally turned the province upside down” on future resource development and pipeline projects.