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Canada’s Indigenous Model is Not Sustainable

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From the Frontier Centre for Public Policy

By Brian Giesbrecht

The stated purpose of the extra indigenous spending that has always been there, and the virtual explosion on indigenous spending since 2015 is meant to fix that problem. But these massive expenditures have now reached the point where they risk destabilizing the country.

Canada’s parliamentary budget officer, Yves Giroux has spoken out about the alarming rise in Canada’s contingent liabilities related to indigenous claims. Todays estimated 76 billion dollars is many times the 15 billion dollars it was when the Liberals took power in 2015.

This is one part only of the massive increase in spending on indigenous matters that has taken place since then.

Federal spending per indigenous person has always been much higher than spending per non-indigenous person. The higher level of spending has been justified because most indigenous people do much worse on virtually every health and social indicator than the mainstream population. Their health is poorer, and their lives are shorter.

This disparity was generally known as Canada’s “Indian problem”. That term is no longer fashionable, and the extra spending is now said to be necessary to achieve “reconciliation”. Regardless of the terms, what is clear is that since Confederation there has always existed a large rural and urban indigenous underclass that does poorly compared to the mainstream. The stated purpose of the extra indigenous spending that has always been there, and the virtual explosion on indigenous spending since 2015 is meant to fix that problem. But these massive expenditures have now reached the point where they risk destabilizing the country.

Perhaps it’s time for Canadians to ask if the “nation to nation” reconciliation plan that spending is based on is working. Is it fixing the problem?

A recent CBC report proves that it is not. Instead, the problems are getting worse.

The CBC investigated an indigenous community at St. Theresa Point where 24 people sometime share one house. Almost all of the houses in the community are crumbling and need to be replaced. Families struggle to achieve basic hygiene. Living conditions resemble what one would expect to find in a third world community, and not in wealthy, modern Canada.

St. Theresa Point is typical of hundreds of other Indian remote reserves. Most are almost totally dependent on the federal government for their survival. There is virtually no real employment. The poorest people in those communities are directly dependent on welfare checks, but even the chief, councillors and other employees receive their paycheques from the transfer payments sent by Ottawa. In reality almost everyone in the community is on welfare of some type.

Unlike in other rural communities, people on poor reserves tend not to move when economic opportunities decline. In small-town Canada, the rules are simple: If the towns or farms can’t supply enough jobs, one moves to the city where the jobs and careers are. But on remote reserves, most people stay put, even if there are no jobs or careers there for them. And most of those who do move to the city do not do well. A lack of education, poor job skills, and lack of motivation usually consign reserve residents who move to the mean parts of town where many end up in gangs, crime and prostitution. The result is that the people who stay in uneconomic remote reserves become more and more dependent. Low education levels sink even further. And succeeding generations become ever less likely to be able to provide for themselves and their families.

To make matters much worse, addiction problems are endemic. At one time, alcohol was the drug of choice. Now, amphetamines, fentanyl, and prescription drugs have been added to the list, with the family violence, sexual abuse, crime, teenage pregnancy and fetal alcohol births that inevitably follow from chronic drug use.

And reserve populations are growing. Although status Indians living on reserves currently comprise only about 1% of the total population, they are the country’s fastest growing demographic. The cost of operating these communities is crippling now, but in a few years, it will be completely unsustainable. Pretending that these desperately poor reserves are sovereign “nations” that will somehow magically become prosperous and self-supporting is a cruel joke on the young people hopelessly trapped on them. The prospect of hundreds of dependent reserves teeming with, unemployed, and largely unemployable young people, with massive social problems, is a frightening dystopia – hundreds of Gaza strips. But it is where we are headed. To make things even worse, the government-promoted false genocide and “missing children” narratives have made many of these people very angry.

Although there is no treaty right, or any other right to free housing on a reserve the reality is that if the government did not provide housing for the reserve residents, they would be unable to provide housing for themselves. The strange result is that Canadian taxpayers – many of whom will never be able to afford to buy a house themselves – pay through their tax dollars for houses for the rapidly growing reserve population. These houses deteriorate quickly, because they are considered “free” by the residents, and have to be fixed and replaced in a wasteful and expensive cycle.

And it is a national disgrace that most reserves are dead ends for most of the young people born into them.

The late Farley Mowat described northern indigenous settlements as “unguarded concentration camps”. That might be a somewhat harsh way to describe reserves, but at best most are human warehouses, plagued with social problems. The young people living there deserve some hope, and Canada’s current plan for them offers them none.

So, Canada’s current indigenous plan is clearly not working. Is there a better plan for success?

Maybe we should ask Wab Kinew, Manitoba’s new premier. He is indigenous and highly successful. How did he get there?

The formula is actually not complicated. It has nothing to do with massive welfare giveaways, “nation to nation” utopias, or incredibly expensive “reconciliation” projects. It definitely has nothing to do with staying in a community that lacks economic opportunities, and waiting for handouts. It involves education, hard work, and going where the jobs are. Kinew’s parents realized that a stable home and education were key. Wab did the rest. He worked his way up the ladder in the usual way, and went where the jobs were. He did that with his indigenous identity intact.

Not every young person has Kinew’s talent, but everyone can follow the formula that made Kinew, and many other indigenous achievers successful.

The alternative – spending ever increasing amounts on a steadily increasing list of demands from a growing dependent reserve population is not an option. We don’t need the parliamentary budget officer to tell us that it is not sustainable.

As for remote, uneconomic reserves, like St. Theresa Point, they should be gradually and humanely closed down. It has been recognized for many years that reserves long ago had served their purpose, and should be phased out. As far back as 1911, it was said:

“Department officials were increasingly coming to the view that reserves had outlived their usefulness. Frank Pedley suggested that they resulted in the isolation and segregation of Indians, and thereby hindered progress…and encouraged the tribal form of government.”

The reserve system was not ended in 1911 because the chiefs and ruling families refused to give up their privileged positions. It isn’t happening today for the same reasons. We still have the same Indian Act and reserve system that has held indigenous people back for almost 150 years. (Senior Ontario lawyer, Peter Best, describes the toxicity of the reserve system in his important book, There Is No Difference)

So, the long-term plan should be to find a way to overcome that resistance, and find a fair way to phase out reserves, and the antiquated Indian Act. The reserves that are economically viable can merge into existing rural municipalities, or become stand-alone municipalities. Opportunities should be made available for young people from uneconomic communities to move to job centres, and receive help to succeed there.

In the meantime, the example of Wab Kinew is proof that there has never been a better time or place than today’s Canada to be an educated and ambitious young indigenous person who is willing to study, work hard, and go where the jobs are.

Brian Giesbrecht is a retired judge and senior fellow at Frontier Centre for Public Policy

Watch Brian on Return to Reason here.

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Energy

Thawing the freeze on oil and gas development in Treaty 8 territory

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From Resource Works 

Will direct tenure awards to First Nations unlock Montney gas?

An innovative approach to facilitating natural gas production in B.C. while respecting treaty rights could become a case study for future cooperation and partnerships between First Nations, government and industry.

In an attempt to open an area that producers have essentially been shut out of in northeastern B.C., the B.C. government directly awarded oil and gas tenure to the Halfway River First Nation, giving them greater control over how oil and gas extraction in the area might happen.

That tenure is now getting “farmed out” to companies like ARC Resources.

“The granting of the tenure by the B.C. government to the nation is new,” said Greg Kist, executive manager for Tsaa Dunne Za Energy, the Halfway River First Nation’s energy business.

Greg Kist, former president of Pacific NorthWest LNG and current managing executive for Tsaa Dunne Ta Energy, THE CANADIAN PRESS/Jeff McIntosh.

Depending on the outcome of the experiment, it’s the kind of thing that might one day be showcased at a future Indigenous Partnership Success Showcase event.

For more than two decades, a large area in Halfway River First Nation traditional territory in northeastern B.C. has been off limits to industrial activities like logging and oil and gas exploration and extraction, due to treaty rights.

In 1999, the BC Supreme Court quashed a timber harvesting permit approved by the province for Canfor, based on Halfway River First Nation’s Treaty 8 rights.

An extraction moratorium of sorts was placed over core HRFN territory, which happens to be in the “fairway” of the Montney natural gas formation.

“All of the lands were deferred from any further development,” Kist said. “And that meant everything from logging it, to oil and gas activities.”

This “deferral” of industrial activities in the area has been one of the question marks hanging over the oil and gas-rich Montney formation in northeastern B.C.

The 2021 BC Supreme Court Yahey decision had also left Treaty 8 territory dotted with question marks.

In Yahey, the court ruled cumulative impacts of activities like oil and gas development constituted a breach of the treaty rights of the Blueberry River First Nation, one of eight B.C. signatories to Treaty 8.

These various treaty rights rulings in northeastern B.C. create a serious challenge: How can B.C. continue to benefit from an abundance of natural gas to feed a burgeoning LNG industry without infringing the rights of Treaty 8 First Nations?

In the case of Halfway River, the B.C. government, the First Nation and industry are taking an innovative approach, using oil and gas tenure.

Last year, the B.C. government and HRFN signed a treaty settlement agreement that grants the nation more control over land use and development. As part of the agreement, the B.C. government directly awarded HRFN oil and gas tenure over 34,000 hectares of land. It was the first time the province has directly awarded oil and gas tenure to a First Nation.

In turn, the HRFN is now farming out its tenure rights to companies like ARC Resources, whose existing land holdings in the Attachie play are directly adjacent to the HRFN tenure.

“The resource quality is comparable to ARC’s existing Attachie asset, further extending the development runway at one of ARC’s most profitable assets,” ARC said in its second quarter financials at the end of July.

The tenure awarded to HRFN through its energy business, Tsaa Dunne Ta Energy, encompasses prime Montney real estate that had been essentially sterilized from development for decades.

“That 34,000 hectares is right in the middle of the Montney fairway,” Kist said.

Under an “earning and development” agreement with Tsaa Dunne Za Energy, ARC Resources will gain access to 36 parcels of land contiguous with its existing land parcel in the Attachie play. This expands its Attachie holdings by 10%.

Green area denotes Halfway River First Nation tenure; blue represents ARC Resources tenure.

“Think of it as Tsaa Dunne farming that land out to ARC, and we have an agreement that benefits us financially,” Kist said.

“The tenure award and landscape planning pilot will help to ensure that oil and gas development in these areas is sustainable and managed in accordance with the values of the Halfway River First Nation,” Chief Darlene Hunter said last year with the signing of the treaty settlement agreement.

Kist notes that the agreement with ARC represents only 25% of the land tenure granted to HRFN. So 75% of the land tenure could be open to further agreements with other natural gas producers.

“There will likely be more deals over time as we look at the different opportunities that are out there,” Kist said.

Kist is the former president of Rockies LNG and, before that, president of Pacific Northwest LNG. He and Jim Stannard, a former Petronas executive, are now managers for Tsaa Dunne Za Energy.

The tenure award does not represent a transfer of subsurface rights. All subsurface rights to things like minerals, coal, and oil and gas belong to the Crown.

“And at the end of the day, the B.C. government still gets its royalties,” Kist said. “But now the nation is very much in control of that activity.”

The recent agreement with ARC to develop 36 parcels adjacent to its Attachie lands is just the first one to be signed so far. There may be more such agreements in the future, Kist said.

Kist said the First Nation tenure model could end up being used elsewhere.

“I think the B.C. government’s going to look at these sorts of opportunities in areas where maybe there is a lack of development moving things forward,” he said.

“I think this could potentially be the model for development, with First Nations leading the way.”

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Aristotle Foundation

B.C. government laid groundwork for turning private property into Aboriginal land

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By Caroline Elliott

It claims to oppose the Cowichan decision that threatens private property, but it’s been working against property owners for years

A City of Richmond letter to property owners in the Cowichan Aboriginal title area recognized by the B.C. Supreme Court has brought the judgment’s potential impacts into stark reality.

“For those whose property is in the area outlined in black,” the letter explained, “the Court has declared Aboriginal title to your property which may compromise the status and validity of your ownership.”

While Premier David Eby has been quick to disavow the decision, the reality is his government helped set the stage for it in multiple ways. Worse, it quietly supported a similar outcome in a related case, even after the concerning implications of the Cowichan judgment were well-known.

The problematic nature of the Cowichan decision has been well-established. It marks the first time a court has declared Aboriginal title over private property in B.C., and declares certain fee simple land titles (i.e., private property) in the area “defective and invalid.”

Understandably, the letter raised alarm bells not only for directly-affected property owners, but also for British Columbians generally, who recognize that the court’s findings in Richmond may well be replicated in other areas of the province in the future.

As constitutional law professor Dwight Newman pointed out in August, if past fee simple grants in areas of Aboriginal title claims are inherently invalid, “then the judgment has a much broader implication that any privately owned lands in B.C. may be subject to being overridden by Aboriginal title.”

In response to media questions about the City of Richmond’s letter, Eby re-stated his previous commitment to appeal the decision, saying, “I want the court to look in the eyes … of the people who will be directly affected by this decision, and understand the impact on certainty for business, for prosperity and for our negotiations with Indigenous people.”

While the words were the right ones, his government helped lay the groundwork for this decision in at least three ways.

First, the province set the policy precedent for the recognition of Aboriginal title over private property with its controversial Haida agreement in 2024. The legislation implementing the agreement was specifically referenced by the plaintiffs in the Cowichan case, and the judge agreed that it illustrated how Aboriginal title and fee simple can “coexist.”

Eby called the Haida agreement a “template” for other areas of B.C., despite the fact that it raised a number of democratic red flags, as well as legal concerns about private property rights and the constraints it places on the ability of future governments to act in the public interest.

While the agreement contains assurances that private property will be honoured by the Haida Nation, private property interests and the implementation of Aboriginal title are ultimately at odds. As Aboriginal law experts Thomas Isaac and Mackenzie Hayden explained in 2024, “The rights in land which flow from both a fee simple interest and Aboriginal title interest … include exclusive rights to use, occupy and manage lands. The two interests are fundamentally irreconcilable over the same piece of land.”

Second, the provincial and federal lawyers involved in the Cowichan proceedings were constrained by the government in terms of the arguments they were allowed to make to protect private property. In August, legal expert Robin Junger wrote, “One of the most important issues in this case was whether Aboriginal title was ‘extinguished’ when the private ownership was created over the lands by the government in the 1800s.”

The Cowichan judgment expressly notes that B.C. and Canada did not argue extinguishment. In B.C.’s case, this was due to civil litigation directives issued by Eby when he was attorney general.

Finally, provincial legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) also played a role in supporting the judge’s conclusions, a point Newman wrote about in August. “They’re used in support of (even if not as the main argument for) the idea that Aboriginal title could yet take priority over current private property rights,”

In addition to setting the stage for the Cowichan decision, and despite their stated concerns with that judgment, the B.C. government has actively sought judicial recognition of Aboriginal title over private property elsewhere.

The overlaying of Aboriginal title over private property with the Haida agreement was already problematic enough prior to the Cowichan decision. However, even after the serious implications of the Cowichan decision were clear, the provincial and federal governments quietly went before the B.C. Supreme Court in support of a consent order that would judicially recognize the Aboriginal title over the entirety of Haida Gwaii.

The successful application had the effect of constitutionally entrenching Aboriginal title for the Haida Nation, including over private property, with the explicitly stated goal of making it near-impossible for future democratically elected governments to amend the agreement.

The reality is, the B.C. government claims to oppose the Cowichan decision even as it laid the groundwork for it, and it has actively pursued similar outcomes on Haida Gwaii. Repeated claims of seeking certainty and protecting private property have been belied by this government’s actions again and again.

Caroline Elliott, PhD, is a senior fellow with the Aristotle Foundation for Public Policy and sits on the board of B.C.’s Public Land Use Society.

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