Economy Lands and Environment Politics

CAMERON – When is a Government not a Government?

Yukon First Nation Chiefs met with the federal Minister of Aboriginal Affairs this week in Ottawa.  They discussed with the Minister their concerns with Bill S-6, legislation that will change a number of critical sections of the Yukon Environmental and Socio-economic Assessment Act (YESAA).  This Act is one of the comprehensive pieces of federal legislation necessary to implement chapters of the Treaties agreed to in the 1990s between the majority of Yukon First Nation governments and the two public governments, Canada and Yukon.

These Treaties are a big deal; they are recognized and protected as an expression of Aboriginal rights through s. 35 of the Constitution of Canada, the supreme law of our land.  YESAA gives presence and authority to the Yukon Environmental and Socio-economic Assessment Board, one of the co-management bodies that were agreed to in the Treaties. The Board conducts assessments on all lands in Yukon, First Nation, Crown and even lands within municipalities.
 Four of the changes in Bill S-6 were never discussed with the Yukon First Nation governments, despite the status of YESAA as a legal instrument required to implement the tri-party Treaties.   The First Nations’ view, as I understand it, is that they’re partners to a Treaty that is supposed to build relationships among all three levels of government (federal, territorial and First Nation), and part of that relationship is an understanding that we are equal partners in the co-management of the territory’s resources.  What comes with this co-management relationship is full discussion and agreement to any measure that changes the legislative foundation to these Treaty bodies.

Imagine how you would feel as a Chief of a self-governing First Nation to be told that you do not represent a “real government”.  Just such a comment was made by a federal Minister.  As such, Canada does not have to treat you as an equal participant in the process to amend legislation required to implement your Treaties.

And, this is not just any federal Minister.  It is the Minister of Aboriginal Affairs and Northern Development, Canada’s representative with the lead responsibility to look after the “Honor of the Crown” where First Nations interests are concerned (oh and let’s not forget, one of the parties to the tripartite Treaty with Yukon First Nations).   You have been elected Chief to represent the interests of one of those First Nations whose government is now in place to honor that Treaty relationship and work for the betterment of your Citizens within a partnership of governments, and you hear this shocking declaration from one of your supposed “partners” in Treaty.

WHAT!!??  Disbelief goes nowhere near to describe how floored Chiefs felt when hearing this Minister of the Crown make such a declaration.

I ask you this: If Yukon First Nations are not governments properly-so-called, then how is it possible for them to pass their own legislation that replaces legislation passed by the Yukon Government?   We call the territorial government a legitimate “government”, yet, another entity that Canada now does not accept as a “government” can occupy the legislative field on matters of a provincial kind (e.g. education and welfare – the list is long and impressive found in the companion Self-government Agreements) replacing the territorial legislation.

Yet, they are not considered governments. How can this be?  I cannot think of any other entity in Canada that we accept to conduct legislating acts that bind the actions of citizens other than governments!  (Oh, and perhaps the Supreme Court, but somehow I don’t think the federal Minister was comparing Yukon First Nations to that august body!)

The federal Minister clarified that First Nations are not covered in the definition of “government” in the Treaties.  That’s an accurate, yet narrow, read of these documents.  It would appear he has not read beyond the definitions section, and has missed references elsewhere in the Treaties to First Nations as governments.  S. is a case in point where a First Nation can develop a constitution on “composition, structure and powers of the Yukon First Nation government institutions”.

My read of the Treaties is that capturing the federal and territorial governments separately in the definitions section as “governments” is done merely to draw a distinction between those levels of public government and the Aboriginal governments clearly recognized in these Treaties!  Somewhere, someone’s imagination got carried away, leading to this staggering narrow interpretation of the Treaties regarding the government to government to government relationship where First Nations are now “non-governments”.

Ironic that a day after Justice Ron Veale of the Supreme Court of Yukon brought down a ruling on the Peel Watershed calling on public government to read the Treaties generously as long-term vehicles to bring about reconciliation with First Nations, the federal Minister treats Yukon First Nations so disgracefully!

The federal Minister unfortunately did not stop there.  When challenged on his argument, his response was that if First Nations do not agree with him, they are “welcome to use the court”; this he states is “the genius of this great country of ours”.

No, Mr. Minister, this is the sad domination of a legalistic and narrow social construction that came with the colonial dominance of foreign migrants to what is now Canada.  It is the “genius” of the tolerant First Nations’ leadership who pursued a vision that resulted in modern day Treaties that emphasize the importance of cooperative relationships, and of the willingness of those dominated to work with the governments that have time and time again subjected them to the tyranny of foreign rule of law and alien government.  They were willing to overlook multi-generational tragedy brought on by this domineering colonial presence in exchange for a peaceful and collaborative co-existence fundamentally important for the healing and strengthening of First Nations Citizenry.

So, what’s really going on here?   Either the Government of Canada is now on a mission to destroy the Treaty relationships that First Nations, in good conscience, have worked tirelessly to establish, or we are facing a level of ignorance among Canada’s political elite never seen before in our country’s history.  If ignorance, it has reached a level where there is within that elite no foundational comprehension of the meaning of Treaty as contemplated by the architects of those agreements!

Reaction to the statement by the federal Minister has been swift and comprehensive.   Many Yukoners have expressed in the strongest of terms their views of the Minister’s erroneous position.  The Yukon Premier has stepped out to clarify that his Government relates to First Nations as governments.  Representatives of the mining community have also called on government to find the path to reconciliation with Yukon First Nations who they see as permanent partners in the enterprise of sustainable and conscientious development.

Often in the past Yukoners have complained of a distant and uncaring Ottawa interfering in our lives.  It is unfortunate that we have this recent experience to reconfirm this suspicion!


Photo credit: Márcio Cabral de Moura under a creative commons license.

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