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Calgary Herald: Opinion: Without Indigenous agreement, there's no Wexit

Albertans, especially those connected with the oil industry, have been calling for the separation of the province of Alberta from the Canadian Confederation due to the belief that the Trudeau government is not doing enough to support the economic recovery for that industry.

Although there are good reasons to support that belief, such as the loss of related jobs and businesses, that argument is incredibly naive and short-sighted. It is an ahistorical position that blatantly ignores the foundations of our Canadian federation as we know it today.

Essentially, the western separatists face two major hurdles: one dealing with constitutionally and federally protected Indigenous interests and, secondly, justifying to the Canadian polity, the Federal Court of Canada and 48 Alberta First Nation chiefs that the idea of unilateral secession from Canada is credible and is good for peace, order and good government. The leaders of the Alberta separatist movement face an insurmountable challenge in that regard.

It must be remembered that the Quebec sovereignists have already gone down that road without success. One obstacle that they totally ignored was the internationally and domestically protected rights of the Indigenous Peoples. In a study entitled Sovereign Injustice (1995), commissioned by the Grand Council of the Crees in Quebec, concluded that “There exists a virtual consensus among constitutional lawyers that a unilateral secession, i.e. a unilateral declaration of independence by Quebec would be illegal under the Canadian Constitution.”

Regarding the status of Indigenous Peoples in Quebec, the study concluded, “Any accession to independence by Quebec would have to fully take into account the right to self-determination of Aboriginal peoples in Quebec … as this Study makes clear, the status and rights of Aboriginal peoples in Quebec, including the right to choose to remain in Canada, are a central issue in the Quebec secession debate.”

Quebec Grand Chief Matthew Coon Come declared, “It should be clear to everyone by now that we are not separatists. You have never heard about a Cree independence movement … We most certainly have grievances against the government of Canada, our relationship is in need of profound reform, but we are not separatists.”

The western separatists have now formed a political party and plan to field candidates in the next federal election. They cannot ignore the fact that the Canadian Confederation was built upon the legal union of pre-existing Indigenous nations from coast to coast to coast and the newly arrived settler society (Europeans and others) via treaties beginning in the 16th century. Those treaties set the terms upon which they would peacefully co-exist within British North America. John Rolston Saul states in A Fair Country (2008), “What we are today has been inspired as much by four centuries of life with the indigenous civilizations as by four centuries of immigration. Today we are the outcome of that experience. Canadians, in general, have been heavily influenced and shaped by the First Nations. We increasingly are.”

The various treaties signed between First Nations and European sovereigns, whether that be the British, French or otherwise, were made for purposes of trade, peace, military alliances or sharing Indigenous lands and resources. The latter continues to be of major political and legal importance in the 21st century. To wit: the Royal Proclamation of 1763, issued by King George III of England, laid the foundation for Indian land treaties and is enshrined in the 1982 Canadian Constitution. The Jay Treaty of 1794 ensured the free passage of Indian trade goods between the United States and Canada and it remains the rule of law today. The Robinson-Huron Treaties of 1850 in southern Ontario and the 11 Numbered or Historic Treaties (1871-1921) together cover roughly 50 per cent of the Canadian landmass. Such treaties provided assurances by the British and Canadian Crown that First Nations will be provided their continuing livelihood “as long as the sun shines, the grass grows and the river runs.” In other words,forever, and they cannot be unilaterally annulled by ordinary legislation, in which case, substantive constitutional negotiations with First Nations would be required.

There are other historic and modern First Nation treaties too numerous to mention, but the point is Canada is forever bound by such legal instruments as long as it remains a legitimate nation state. Canadian Confederation was made possible only by the agreement of First Nations to open their traditional territories to European settlement. They will never agree to have their legal interests be swept under the rug by those that want to break up Canada to seek their own political ends. The western separatists ignore the fact that Alberta’s economy is going through a cyclical change and the jobs will return in due course.

First Nations’ treaty relations lies with the federal Crown and not with the province. In the unlikely event of western separation, its advocates would have to negotiate separately with First Nations prior to any possible referendum on that matter. It will be a very expensive and sensitive undertaking to say the least, given the fact that the Historic Treaties are not valid land surrenders. The most likely subject matters to be on the negotiating table would include resource revenue sharing, fiscal equalization payments for First Nation economies and infrastructure, treaty land entitlements, rectifying the unfair existing Indian reserve land allocations that did not foresee rapid status Indian population growth, hunting and fishing rights, treaty annuities and the list goes on ad infinitum.

Indian treaties hold Canada together just as the old BNA Act of 1867 does. Both deal with intra-societal relations: one between the provinces and the other with First Nations and Canadians. No Canadian should threaten the integrity of both unions. The creation of Canada itself came at a great cost for First Nations in losing their once immense traditional territories. The Historic Treaties have been good for all European settlers and their descendants (and others), especially the oil, farming and ranching sectors of the Alberta economy, for which First Nations have yet to be recognized and acknowledged.

Andrew Bear Robe is a member of the Blackfoot Confederacy, Siksika Nation.

Feb 29, 2020

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