Generous rulings for Canada's natives spur backlash

By Randall Palmer, Reuters News Service, 25 October 1999

OTTAWA - By most standards it's been a good autumn for Canada's Indians but their victories in the courts and in the political arena have left some non-natives seething, worried they are taking a back seat.

The implications of the native victories have been sweeping and affect areas as diverse as the lobster fishery, a billion-dollar gas project and the potential payment of tens of billions of taxpayer dollars to Indians.

The courts have made it clear that agreements made with Indians should be interpreted generously, and the Liberal government insists that negotiating treaties and other deals is the only way to maintain peace and bring justice.

The result in some cases, however, has been turmoil. Financial costs have been high and the wisdom of applying different rules to different people has come into question.

"If they're not careful, they're going to go into chaos if they allow two sets of laws to govern two sets of people," Member of Parliament Chuck Strahl of the opposition Reform Party told Reuters.

Kicking the season off was the Supreme Court's Marshall decision last month, which has allowed Mi'kmaq Indians in Atlantic Canada to fish out of season and without a license, due to a 1760 treaty. White fishermen, some of whom paid C$200,000 for a license, were barred, and violence ensued.

On Wednesday, the Federal Court of Appeal ordered the government's National Energy Board to again look at whether Mi'kmaq concerns were fully taken into consideration when the board gave the go-ahead to the C$1.7 billion Sable Island pipeline to carry natural gas to Atlantic Canada and New England from offshore Nova Scotia.

The project, which was supposed to start pumping gas next month, is nearly finished. There is confusion over whether it will now be delayed.

And on Thursday, the federal government introduced legislation to ratify a treaty with the Nisga'a tribe, or First Nation, in British Columbia giving it about C$490 million in compensation, mostly cash, but also including government land.

The Nisga'a treaty is viewed as a model for codifying relations with the vast, resource-rich province of British Columbia - all of which is claimed by various Indian tribes.

But, combined with the Supreme Court's 1997 Delgamuukw decision, which declared that natives retained a proprietary interest in the land and its resources throughout much of Canada, it has encouraged new claims to be registered and old treaties to be reopened.

University of Calgary political scientist Tom Flanagan commented in the National Post newspaper that Quebec and the four Atlantic provinces were now "sitting targets" for future decisions requiring the negotiation of treaties.

"And the Nisga'a treaty, with its extravagant price tag (perhaps ratcheted even higher by then), will be the model, just as it will be for future treaties in B.C.," he wrote.

One accounting firm's estimate is that the cost for British Columbia alone could hit C$40 billion to C$50 billion.

In addition to ruling on fish, last month's Marshall decision also handed the Mi'kmaq people the right to make a living from "gathering", and they are interpreting that to mean getting into the lucrative commercial forestry business without the same rules applying to them that apply to non-native forestry firms.

The Indians themselves - who number about 700,000 of Canada's 30 million people - say it is outrageous to question rights that have been ruled on by the Supreme Court.

"Some refer to our treaties as 'ancient' and say their provisions no longer apply," said Phil Fontaine, national chief of the main Indian group, the Assembly of First Nations. "The terms of the Magna Carta sill apply to free men and women everywhere. There is no statute of limitations on injustice."

The policies have, however, led to charges of racism.

"This government has squashed the principle of equality with the Nisga'a treaty," Reform's Gurmant Grewal, himself an immigrant from India, told Parliament on Friday.

"No longer will hard work be the determining factor whether one can make a living in forestry, fishing or mining. Success will be based on race."

The federal Indian affairs minister, Robert Nault, dismissed this as "ridiculous", in remarks to reporters outside the House of Commons. "This is about equality, this is about economic opportunity for First Nations people," he asserted.