The provincial government plan to auction Crown lands covered by treaties with Indigenous Peoples shows that it does not understand the Constitution.
by Gina Starblanket. Originally published on Policy Options
January 30, 2023
Saskatchewan’s provincial government has much to learn about the political history of the lands to which it lays claim.
On Jan. 20, the Onion Lake Cree Nation called for Indigenous people to unite in opposition to a scheduled auction of Crown land leases and is encouraging the provincial government to honour nation-to-nation treaty relationships. In so doing, Onion Lake is acting on a matter to which First Nations groups have been calling attention for decades – the dispossession of our lands, minerals and natural resources in areas covered by treaties.
The provincial government has sold off nearly an estimated 2 million acres of Crown lands since 2007, which allows them to be converted to private property subject to minimal regulation and oversight by federal, provincial or Indigenous governments. The Saskatchewan government has paused Crown land sales while reviewing its First Nation and Métis Consultation Policy Framework, but it has also pushed ahead with its annual lease auction for agricultural use, claiming that it falls outside the purview of the framework. At minimum, the province should immediately halt the scheduled auction and employ a nation-to-nation approach to ongoing land matters as the first steps to end its violations of Indigenous treaty rights.
The political context is noteworthy here. Treaty-based legal and political positions and actions are being advanced across Saskatchewan against the backdrop of a federal agenda purportedly oriented toward reconciliation and a provincial agenda that is anything but that. Consider the current provincial government’s Saskatchewan First Act, a declaration of self-described “sovereign autonomy” that claims to allow the province to amend “the Constitution of Saskatchewan” and protect “Saskatchewan’s exclusive legislative jurisdiction” over natural resources.
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Readers of this statement have every reason to be confused. Saskatchewan is not an autonomous political entity, nor is it separate from any other order of government. Legal and political analysts have rightfully interrogated the substance of the act, perched as it is atop a parochial reading of the Constitution Act, 1867 and an interpretation of provincial powers shared by virtually no legal or constitutional experts aside from the party’s own. Indigenous people have broadly panned the act due to the Saskatchewan Party’s absolute lack of engagement with Indigenous people and Indigenous governments in its drafting, as well as in the act’s failure to even name, let alone engage with, the province’s treaty obligations.
On the matter of Saskatchewan positioning itself “first,” the Onion Lake statement offers an important corrective. “We remind the Province of Saskatchewan that our peace and friendship Treaties were entered into before the creation of this province. Our Treaties are the law of the land.”
Saskatchewan came into existence as a province in 1905 as a result of the Saskatchewan Act, which forms part of the Constitution Act. It does not have exclusive sovereignty – inherent or delegated – nor does it have the power to autonomously enter into or alter nation-to-nation treaties. It is one of two orders of government in a settler-colonial state that claim to share sovereignty. The 2021 Supreme Court ruling on the federally imposed carbon tax underscores just how much Saskatchewan does not have exclusive sovereignty or jurisdiction.
Canada’s Constitution enables and places limits on provincial political authority and while not situating Indigenous Peoples as a distinct order of government, it recognizes the constitutional significance of nation-to-nation relations with Indigenous Peoples. These include the Royal Proclamation of 1763 and treaties negotiated throughout the 18th and 19th centuries. The aboriginal and treaty rights of Canada’s Indigenous population receive constitutional protection under Section 35 while other parts, such as Section 25, include the rights and freedoms recognized by the Royal Proclamation of 1763.
Under Section 91(24) of the Constitution Act, the federal government holds responsibility over “Indians and Lands reserved for the Indians.” Yet, under Section 88 of the Indian Act, provincial laws of general application can extend to Indigenous people whether on or off reserve.
This situates the federal government with a constitutional responsibility under Section 91(24) to act when provincial laws might infringe on aboriginal and treaty rights.
In theory, the federal government could use Section 91(24) with an expansive understanding of “Indian people and lands,” and could invoke this authority to guard against the exercise of provincial authority, or to pre-empt the sale of Crown lands. However, this section has historically been interpreted in such a way that reduces its application to a narrow category of legal “Indians” and reserve lands, providing little accountability in practice.
What we are left with is far from a nation-to-nation process. We have a federal government and now provinces that all claim jurisdiction and take unilateral actions over treaty lands that were always intended to be shared, and over resources that our ancestors maintain were never discussed. There remains a gap in jurisdiction, with federal or provincial governments diverting questions to one another, and the courts perpetually declining to adjudicate broader questions involving land or self-determination because they see them as political issues.
That the Crown has by and large misinterpreted and violated the treaty relationship does not diminish its significance to Indigenous Peoples or to Canada’s own Constitution. The political formation known as Saskatchewan would not have a land base to claim if Indigenous Peoples, who exercised longstanding forms of law and governance in these spaces for millennia, did not agree to share the lands with the settlers. In any sense of the word, treaty rights and obligations come first.
Onion Lake is wise to reframe the matter not as one of federal interference in provincial politics, but of federal and provincial interference with its treaty rights. As relationship agreements, treaties affirm Indigenous Peoples’ longstanding role as stewards of these lands, including the commitments and responsibilities to Creation that arise from our traditional laws and governance. They represent living political agreements that affirm the governing powers of nations that are party to them, but also that establish inter-governmental frameworks for negotiating and renegotiating conditions of co-existence into the future.
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Saskatchewan’s proposed Jan. 31 auction of Crown land without Indigenous consent violates the rights that flow from treaties, including the duty to consult flowing from the “honour of the Crown” as well as substantially higher standards, such as the notion of free, prior and informed Consent (FPIC) articulated in the United Nations Declaration on the Rights of Indigenous Peoples. But it also points to a matter that extends beyond the duty to consult, or even the legitimacy of the 1930 Natural Resources Transfer Acts (though the NRTA itself is also a violation of treaty rights).
The sale and leasing of Crown land illuminates the contours and operations of structures of colonial oppression, illustrating how settler political orders continue to actively benefit from, while simultaneously denying, the ongoing legal and political significance of treaty relationships. As is now widely recognized in legal and political scholarship, and as the courts observed in Restoule v Canada, treaties are not transactions, but living relationships. The sale of Crown land reveals processes of dispossession that occur within, but also that exceed, treaty relationships because it concerns minerals, natural resources, and land that was not shared by Indigenous people beyond the depth of a plow. These gaps and omissions are terrain for future analysis, litigation and political action grounded in treaty relationships.
Indigenous people in Saskatchewan have always understood treaties as ongoing relationships intended to grow over time and to ensure the continuity of our responsibilities to Creation and to future generations. Not only does the Saskatchewan government appear not to understand the treaties or its treaty obligations, but it, like Alberta, evidently doesn’t understand Canada’s Constitution, either.
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This article first appeared on Policy Options and is republished here under a Creative Commons license.