BY ROBERT DESJARLAIT • JAN 6, 2013
First Nations are the last best hope that Canadians have of protecting lands for foods and clean water for the future – not just for our people, but for Canadians as well…So this country falls or survives on whether or not they acknowledge – or recognize and implement – those aboriginal and treaty rights. ~ Dr. Pam Palmater, a Mi'kmaw lawyer and an unofficial spokesperson for the Idle No More movement.
Let me rephrase that: Anishinaabe Nations are the last best hope that Minnesotans have of protecting lands for foods and clean water for the future – not just for our people, but for Minnesotans as well…So this state fails or survives on whether or not they acknowledge – or recognize and implement – those indigenous and treaty rights.
By changing four words, the context of Palmater’s message doesn’t change; rather, the equation remains the same but the geopolitical lines extend beyond a fictive border created by colonialist politics. In this way, Idle No More is not restricted to the struggles of First Nations in Canada, but it becomes inclusive of the struggles of tribal nations across the mythical border.
The awareness raised by INM focuses on several pertinent issues regarding the rights of indigenous peoples in Canada. Foremost among the issues are treaty rights, treaty lands, and environmental protections.
In June 2012, omnibus Bill C-38 was passed. Bill C-38 overwrote the Canadian Environmental Assessment Act. As David Suzuki notes: “[These C-38] amendments will weaken Canada’s capacity for environmental governance, threatening our land, climate, and water.”
Suzuki further notes that C-38 limits the scope of federal environmental assessments including: Narrower definition of “environmental effects”; Public participation limited; Time limits imposed on environmental assessments; Decision-making power moved to Cabinet; Pipeline approvals expedited; Fish habitat protections lifted; Protection of species at risk weakened; Less frequent government reporting on environmental management.
Then came omnibus Bill C-45. Environmental groups joined First Nations in opposition to C-45. As noted in a joint letter to the Harper government: “Bill C-45 would further undermine the protection of Canadian nature by making substantial changes to…critical laws that were once used to steward a sustainable environment, clean water and healthy oceans for all Canadians. Together, the changes proposed in the omnibus bill would further weaken Canada’s environmental laws, remove critical federal safeguards, and reduce opportunities for the public to have their say about projects that could threaten the air, water, soil and ecosystems on which all Canadians, and our economy depend.”
Then there is the impact of C-45 on First Nations. However, C-45 is the tip of the iceberg of a suite of bills/laws that violate First Nation communities, treaties and treaty territories.
Bill C-45 / Jobs and Growth Act (Omnibus Bill):
I - Land Surrenders: This process prevents any debate of Grand Chiefs to present views of amendments; Indian Act changes to zero consultation of communities; Lowers threshold for the surrender of reserve lands.
II – Navigable Waters Act: The Federal Government vacates jurisdiction over waters, parks, fisheries, etc., and the responsibility and duty to consult, honor treaty rights, as now they cannot do anything without talking to First Nations first; Allows Provinces to have more powerful expropriation powers; Power to decide fate of individual First Nations – even in Treat Territory.
Bill S-2 / Family Homes of Reserve Matrimonial Interests of Rights Act: Does not recognize any First Nations by-laws that already set out matrimonial property laws; Legal rights can be given to non-Indians over holds on lands on Reserve; Land, protected under treaties, exclusively for First Nations, can be given and transferred to non-First Nation people.
First Nation Education Act: Incorporates and imposes Provincial Laws into First Nation education on Reserves.
Bill S-212 / An Act to Amend the Interpretation Act: Non-derogation of Aboriginal and Treaty Rights.
Bill S-212 / First Nations Self-Government Recognition Bill and the First Nations Propert Ownership Act (FNPOA): The 1887 Dawes Act in Canadian form; Will take community-held Reserve Lands and divide into individual parcels; This land can be sold to non-Indians and corporations under provincial laws and registries, with no Aboriginal or Treaty Rights associated anymore; To put a pipeline through a community, the community’s consent is no longer needed nor Chief or Councils.
Bill S-8 / Safe Drinking Water for First Nations: Will give the Federal Government the power to set up rules and regulations around water and stagnation and will be able to force Chief Councils to do whatever necessary, but no funding; They can demand that Chief and Councils to fix water systems, but if there is no money to do so, it is taken from band operating funding formulas (housing, social assistance, etc.).
Bill C-428 / Indian Act Amendment and Replacement Act:Getting rid of old provisions with zero consulations or consent of First Nation people; Doesn’t acknowledge a Band’s ability to pass band by-laws.
Bill C-27 / First Nations Financial Transparency Act: This bill will force First Nations to open up all the books, source revenue, and business revenue, to the public.
All these bills are in direct violation of Articles 18, 19 and 20 of theUnited Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) that was endorsed by the Harper government in November 2010. In regard to Canada’s endorsement, the Indian and Northern Affairs Canada stated: "Although the UNDRIP does not reflect customary international law or change Canadian laws, Canada believes that the UNDRIP has the potential to contribute positively to the promotion and respect of the rights of indigenous peoples around the world."
The response to C-38 is seen as a corporate grab for land and water that affects all Canadians. Bill C-45 gives corporations the right to buy, sell and pollute First Nations land. In summation, the omnibus bills will cause widespread pollution and toxicity of water, land, and wildlife in the name of corporate greed. According to Nina Wilson, Sylvia McAdam, Jessica Gordon, and Sheelah Mclean, the founders of INM,: “It’s urgent to act on current and upcoming legislation that not only affects our First Nations people but the rest of Canada’s citizens, lands, and waters.”
Obviously, these draconian measures do not directly affect Anishinaabe tribes and people in Minnesota. However, the colonial mindset of the Canadian government mirrors the colonial mindset of the U.S. government. And the focus of the colonial mindset is always on land and the profits derived from the subjugation and exploitation of land.
In Minnesota, we see legislation regarding our treaty rights and treaty lands that is not dissimilar to Canadian legislation. Indeed, Congressional lawmakers continue to pass laws that erode the environmental protections of the EPA’s Clean Water Act and the Clean Air Act.
Canadian or U.S., treaties purport to recognize the sovereignty of tribal nations. Also recognized are certain rights retained in regard to off-reservation/reserve tribal land. In Canada, this is referred to as treaty territories, in the U.S., it is referred to as ceded lands. Although court decisions have, in many cases, affirmed treaty rights in the U.S., those very same treaty rights are continually marginalized, in both Canada and the U.S., to establish the legal fiction of eminent domain to obtain metals and minerals located on treaty territories/ceded lands.
And what is the worth of those stolen resources? In the U.S., a recently released Government Accountability Office report "which estimates that extraction of oil, gas, natural gas liquids and coal on federal and Indian lands produced $11.4 billion in federal revenue last year — said it could not make a similar assessment for hard-rock minerals. Federal agencies generally don’t collect data on the value of hard-rock minerals taken from public land because the only reason to do so would be to calculate royalties, the report states." So, the value of hardrock mining isn’t known but it is obviously in the range of billions of dollars. The tribes who live in areas where oil, gas, and natural gas are extracted, and where hardrock mining has been established, receive nothing. These are figures for the U.S., mind you.
The consequence of extractive resources – oil, energy and mining – is the pollution and toxicity that affect indigenous reservation lands. Polluted waters from extractive plants located upstream flow through ceded lands and into reservations.
In Minnesota, taconite mining has already left a legacy of ecocide on ceded lands that affect both Native and non-Native populations. A once forested area is scarred and deforested by mining pits. One in ten infants is born with mercury in their systems from methyl mercury that has entered into the food chain via fish. Miners are struggling with high rates of lung cancer. Air borne asbestos particles swirl in the winds. Wolves are hunted for sport to further decimate the balance of the ecosystem.
Amid this ecocidal destruction, the Minnesota legislature, for the past two years, has passed laws that have diminished environmental protections and, in the process, marginalized tribal usufructuary rights to the benefit of extractive copper/nickel resource corporations that seek to establish mining districts in northeastern and central Minnesota.
Exploration maps reveal mining exploration footprints that begin on the shores of Lake Superior and extend deep into the interior of northern and north-central Minnesota. Boreholes have been drilled on the ceded lands of Red Lake, Leech Lake, White Earth, Bois Forte, Grand Portage, and Fond du Lac Anishinaabe bands.
In Minnesota, the main source of protection has been our manoomin. The Wild Rice/Sulfate Water Quality Standard that became law in the 1970’s provides a line of defense against the encroachment of mining companies like PolyMet, Twin Metals, Glencore, and Rio Tinto. The Minnesota legislature has attempted to appease these mining enterprises by trying to change the law and raise the current standard of 10 mg/L to a level that destroys manoomin and lowers the standards for water treatment. Less stringent measures for water treatment translates as higher levels of sulfates that will release toxins and negatively impact ecosystems. Sulfates and methyl mercury, a by-product of sulfates, will flow down rivers and streams and eventually empty into Lake Superior.
Like Canadian legislation, Minnesota’s legislation violates treaty rights and treaty protections. These legislative acts undermine Federal Indian Law and directly impact indigenous food sovereignty as guaranteed under usufructuary rights retained under treaties signed by our leaders.
As noted by Prof. Peter Erlinder: “Ojibwe treaty rights are a device to help keep the land healthy.” With this in mind, we have to look beyond the colonial border and understand that the struggle for tribal sovereignty and the protection of our homelands is part and parcel to the overall struggle of indigenous justice. The energy of the INM round dances in Minnesota needs to be refocused on our own struggle here. We can maintain solidarity with INM, but there is also the need to develop a stronger grassroots movement here to counter the grave legislative and corporate threat to our ceded lands. We can’t depend on our tribal leaders to thwart the subjugation of Anishinaabe lands and waters. It has to come from us – the people.