Mineral exstraction: A seven-generation decision

Most jurisdictions must consider Indigenous Peoples’ connection to the land when considering resource projects. While they may acknowledge our use and occupation of the land, they miss the deep connections our people have.

Developers and regulatory decision makers must have a full understanding of sustainable development from the “natural law” perspective of First Nations in Canada. We also point out the importance of the evolving legal landscape and how that is increasingly recognizing Aboriginal and Treaty rights. It is the only way they can fully recognize and respect inherent and Treaty rights.

Firstly, the determinants of “nationhood” anywhere on the planet begins with the basic tenant of “having or occupying” a land-base. Land tenure in Canada creates a legal and moral requirement to ensure that Indigenous communities are considered in all development. This is a reality that is not diminishing, rather getting more complex, with more formal requirements for obtaining consent or approvals. Case law and legal requirements are, and continue to increase in favour of First Nations across this country.

It has been an interesting time since this country formally established Canada’s Constitution Act 1982 and entrenched Section 35 (1), which states:

“The existing aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.”

Essentially, the Canadian legal framework stemming out of this country’s constitution is the formal basis for “righting” many misconceptions and wrongs that have been imposed on First Nations people where there has been contact and relations built around the concept of sharing the land, in the legal sense.

Secondly, and I think the more important to the human concern, is the concept of “Natural Law.” The reality is if two parties are disputing ownership or interest to the land, and there is a forest fire or flood, the land status or usefulness to human interest might well be diminished.

Land becomes a squabbling point in legal terms far too often – this is why many First Nations peoples in this country are shifting their attention to the United Nations Declaration on the Rights of Indigenous Peoples, 2007. The UNDRIP, which specifically sets out that states shall recognize the laws and land tenure systems of Indigenous Peoples within any process that pertains to lands, territories and resources. These international standards are in line with the principles of natural law, which serves to influence the development of common law by setting out the standards of relations between all peoples, as it pertains to all peoples across the globe.

Natural law and human rights are in integral connection toward ensuring that the highest degree of responsibility is considered when it comes to land rights described in the United Nations Declaration on the Rights of Indigenous Peoples; as stated in Article 25:

“Indigenous Peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources, and to uphold their responsibilities to future generations in this regard.”

This essentially describes that the concept of responsibilities to the “next generation” are rooted in the recognition of rights for those that are yet unborn, which essentially describes the greatest of protections and sustainable use of lands and resources not covered in the Canadian Constitution, 1982. This is just one reason why many First Nations today turn to the arena of international law to protect lands.

Interestingly enough, one of the world’s most primitive livelihoods of extraction of the earth’s minerals for various uses and applications, has also been mired in conflict, struggle and loss of human life and destruction of the land. From this premise, one can say: “We’ve been here before, we will make it through this” Perhaps we should think about that in common-sense terms. The mass impact and scale of mining on this planet today is a going concern. Production, impact, remediation, land-use, and the next generation are all synonymous in the questions and concerns that Indigenous Peoples are faced with when reviewing a mining proposal.

As I’ve stated in my last column, Chiefs in Ontario are exploring opportunities to implement models of shared jurisdiction in the province of Ontario.

The current provincial government, which is mandated to oversee lands, realizes that there is great relevance in the constitutionality of Canada’s relationship with Indigenous Peoples, and that Aboriginal and Treaty rights are a legitimate reality that cannot be avoided. I also suspect that the Ontario government also realizes that there is a growing reality that “consent” is quickly becoming the reality that developers will have to secure in dealing with First Nations, where it concerns mining proposals that may impact their ancestral and treaty lands.

We must protect the land, provide for the people and share in the earth’s bounty. That’s what the treaties were about – nothing more, nothing less.