FORKED TONGUE
On July 5, 2013, a report marked “Secret” landed on Prime Minister Stephen Harper’s desk. The document was written by his special envoy on West Coast energy infrastructure, Douglas R. Eyford, a Vancouver-based litigation lawyer. Eyford had been sent to find out how the stakeholders, in particular First Nations peoples, viewed Ottawa’s push for oil and gas development on their lands. Entitled “Interim Report to the Prime Minister,” the document is full of general statements about how Ottawa needed to proceed rapidly on its most urgent initiative—energy and pipeline development in the West. The looming energy bonanza is incomprehensibly huge and the matter had suddenly become urgent.
Canada’s energy exports totalled about $110 billion in 2012, roughly 25 percent of the country’s total exports. While most Canadian petroleum goes to the United States, the industry is changing rapidly as the US develops its own domestic supplies. The Harper government wants to diversify markets—which makes economic sense. The industry has been developing refinery capacity in Quebec and upgrading existing capacity in New Brunswick at the Irving Oil Refinery.
Both Alberta and BC see energy infrastructure projects as key economic drivers. Canada is the world’s fifth-largest producer of crude oil and natural gas, and Alberta has the third-largest crude oil reserves in the world. With approximately 101 tar sands projects in Alberta, the industry generates one in fourteen jobs in the province and provided about $4.5 billion in royalties in 2011– 2012. BC had shifted its natural resources focus to natural gas,1 and the government estimated in 2013 that the liquefied natural gas (LNG) industry could create $1 trillion in economic activity over the next thirty years. BC’s goal is to have the first LNG facility in Canada up and running by 2015, with three more in operation by 2020.
With more than six hundred resource projects on the drawing board over the next ten years, time is of the essence. Several projects are in the planning and development stage—two interprovincial oil pipelines; five LNG export facilities; four intraprovincial gas pipelines; and an oil refinery near Kitimat, BC—so the stakes are enormous. The oil pipelines alone would require a direct capital investment of $11 billion, and would result in an estimated $94 billion of additional investment in the oil sands over the next twenty-five years.
The existing Trans Mountain Pipeline has been shipping Alberta oil to the west coast for export for about sixty years, and Kinder Morgan wants to triple capacity with a new, twinned pipeline. The five LNG facilities proposed for the west coast will require a capital investment of $278 billion by 2020. But as Douglas Eyford told the prime minister, because of an abundance of energy from new technologies such as fracking, the clock was ticking: “This opportunity is time-limited due to intensive global competition and changing market dynamics.”
Eyford was preaching to the converted on the importance of the developments. Stephen Harper is, first and foremost, a son of the oil patch. He had already done everything in his power to clear the path for the rapid development of Alberta’s tar sands, and in particular, to win approval for the controversial $7-billion Northern Gateway Pipeline. After a series of public hearings, from which some environmental groups were barred, the project was approved, as expected, by the National Energy Board (NEB), albeit with 209 conditions. On an internal document from the Department of International Trade and Development that was leaked in January 2012,2 the NEB was listed as one of the “allies” of the Harper government. “Opponents” of the government listed in the document included “green” groups, which Ottawa had already accused of being “foreign-funded” radicals. Once again, the government’s sneaky side was on display.
The Harper government has bent over backwards to accommodate Big Oil. Ottawa gutted seventy environmental laws and regulations in its widely denounced omnibus legislation that would otherwise have set some limits on sustainable development. Harper has lowered corporate tax rates to just 14 percent, and failed for seven straight years to bring in promised emission regulations for the oil sector. The Harper government also spent millions in taxpayers’ money portraying Big Oil as the industry that would pay for Canada’s future social services. Opponents of the tar sands were spied on by the government and publicly portrayed as dangerous threats. But despite all he had done for the petroleum industry, the massive developments Stephen Harper desired were in jeopardy.
In British Columbia, a giant Douglas fir lay across Stephen Harper’s yellow brick road to speedy resource development: Canada’s Aboriginals. The natives found themselves facing the usual peril; standing between a white man and his money has always been a dangerous place to be. Historically, Aboriginal Canadians have not benefitted as much as others when natural resources have been developed on their territories, whether for the fur trade, the fishery, or the logging and mining industries—and now oil and gas.
In Alberta, forty-five Indian Act bands are included under three historic treaties: Treaties 2, 7, and 8. In BC, 203 Indian Act bands are represented by 21 tribal associations. The majority of the Aboriginal groups in BC have not negotiated treaties, but over the last decade the government of BC and some Aboriginal communities have established government-to-government frameworks. The parties then work through non-treaty agreements to develop resources. Doug Eyford reported that the Harper government was getting failing grades for its handling of the delicate negotiations with industry stakeholders, the provinces, and, in particular, BC First Nations. Between the lines, his message was clear: it might be time to put away the bulldozer and start listening. “Generally, the messages were respectfully delivered,” Eyford told the prime minister, but they were “firm and critical.”
The energy industry, meanwhile, was worried that investors, especially in Asia, would look elsewhere if government didn’t solve the Aboriginal issues. As an experienced lawyer, Eyford knew that an “effective relationship among federal and provincial governments, industry stakeholders, and First Nations” was critical to future energy developments proceeding. Over 150 Aboriginal communities in Alberta and BC would be affected. It was a matter of settled law by the Supreme Court of Canada that Ottawa had a constitutional obligation to consult First Nations. From a native perspective, it all came down to credibility, something that the Harper government often manufactures with slick ads during hockey games when the facts don’t do the job. But the public relations onslaught portraying rapid resource development as a boon for all wasn’t working with First Nations peoples.
Eyford noted that television and print advertising was not advancing the discussion, and that it “appears to perpetuate divisions.” Harper’s envoy noted that it was also not helpful that some in the media relied on “a small group of commentators with narrow perspectives.” Commercials were no match for the treaty rights that are affirmed in section 35 of the Constitution Act of 1982. Eyford wrote, “The legal duty to consult is grounded in the core precept of the honour of the Crown and the recognition of the unique relationship that exists between the Crown and Aboriginal people in Canada.”
In 1995, Canada recognized that First Nations have an inherent right to self-government under section 35. It was a right that had been smothered in feckless negotiations and broken promises, and a new mood of defiance was awakening in the native community. Eyford warned, “Some First Nations have indicated they will engage in civil disobedience and direct action if the Northern Gateway project is approved.” The grand chief of the Assembly of Manitoba Chiefs, Derek Nepinak, seconded that observation: “There is enough momentum, there is enough diversity in the groups and the grassroots movement, there is enough geography covered to put a stop to resources development in Canada until we get what we need to break the chains of poverty.”
Generally, First Nations were cautiously supportive of the LNG projects, perceiving natural gas to be more benign than bitumen. What they opposed were the bitumen pipelines and tankers because of the potential for catastrophic damage to the environment, including thousands of streams and rivers and the formidable waters of the Douglas Channel, through which oil tankers would be navigating. Galvanizing their opposition to Northern Gateway was the grossly inadequate response by Enbridge in 2010, when three million litres of tar sands–diluted bitumen were released into a tributary of the Kalamazoo River in Michigan after the company’s pipeline ruptured. The heavy, viscous crude is mixed with corrosive chemicals such as benzene to allow it to flow, and benzene is known to cause cancer in humans.
Miles of wetlands and waterways were contaminated, and the cleanup costs topped a billion dollars. Complicating that operation, tar sands oil sinks in water, rather than floating like conventional oil. Investigation of the catastrophe showed that Enbridge had violated several laws involving pipeline management. And even though it had been twenty-five years since the Exxon Valdez disaster in Prince William Sound, the damage to the marine environment on the west coast was still visible. People remembered.
With all the risks, First Nations were still willing to support responsible resource development and even become directly involved in sustainable projects, as Eyford reported to the prime minister. But not as coolies. “There is an interest in borrowing capital at preferred rates, backed by a federal government guarantee, for the purpose of obtaining an equity position in partnership with industry stakeholders,” Eyford wrote. This was a position that Eyford indicated was supported by industry. But according to First Nations negotiators, it was not supported by the central federal agencies in Ottawa: Finance, the Treasury Board, and the PCO. Eyford would later revise his interim report and say in his final report that Aboriginal communities had not expressed an interest in obtaining a federal loan guarantee to obtain equity interest in pipelines or LNG facilities, although in future Canada might be asked to consider such proposals. For now, this was “a proposal without a project.”
Nevertheless, industry stakeholders knew that First Nations could delay or prevent projects without using the courts, and they wanted the Harper government to do more to find an amicable solution. Their own token efforts to involve First Nations had failed. Both the Athabaska Chipewyan and the Fort McKay Nations had pulled out of the Joint Oil Sands Monitoring Program. They had left because the program was mere window dressing. As the Harper government itself had reported to the United Nations, emissions at the tar sands are expected to soar over the next thirty years, so why go through the charade of protecting the environment with scrupulous monitoring?
Simply put, the energy companies didn’t think the federal government was reaching out for partners. Nor was industry Harper’s only critic. Eyford reported, “Alberta and British Columbia conveyed their views that the Government of Canada does not effectively engage First Nations.” They too believed the Harper government should be doing more to identify ways for Aboriginal groups to become partners in the development of oil and gas. Both provinces saw themselves as pursuing “creative, flexible and innovative approaches to improve their relationships with Aboriginal peoples.” But according to Eyford, the provinces believed, “Canada is either unable or unwilling to adopt similar approaches.” The problem of “limited presence on the ground” was affecting Canada’s relationships with Aboriginal groups. Both provinces also wanted more information, earlier, about federal initiatives so they could coordinate activities in support of development.
British Columbia’s first priority was to move as quickly as possible with LNG development. Provincial representatives were even worried that the controversy over Northern Gateway could cause First Nations to resist LNG the way they were rejecting bitumen. First Nations were concerned that if energy corridors were constructed for gas pipelines on their territories, oil pipelines would soon be built alongside them. First Nations also felt they had a lot to contribute to pipeline and marine safety initiatives because of their knowledge of and connection to their traditional territories. The chiefs had company in complaining about Stephen Harper’s unilateralism. The British Columbia government expressed frustration that it had not been consulted on the announcement of an expert marine safety panel. Eyford suggested that Canada should address First Nations issues through early engagement, to build a relationship between the two parties, as well as reconcile the rights of Aboriginals with the needs of all Canadians. It was good advice but offered late in the day.
One of Eyford’s most strategic observations was that Canada approaches resource development from a national or global perspective, but there was no common First Nations perspective because of different cultures and traditions among Aboriginal communities in BC. However, the bands united around the common concern that, in the big picture, the risks of resource development would outweigh the benefits. There was a selling job to be done here, and failing that, a path that would lead straight to the courts. Eyford noted that Aboriginal groups in BC have generated almost all the landmark Aboriginal rights litigation in Canada. Many tribal councils believe that the development of oil pipelines is an opportunity to gain “greater judicial certainty about the nature and content of Aboriginal rights, including title.” In other words, they were not going to be induced to support a project simply with the offer of a job. They were looking for linkage to other key issues. Important land claims remained to be settled, nation to nation, and Ottawa was moving at a snail’s pace on that front.3
Another significant observation made by Eyford was that First Nations were not opposed, per se, to economic development in their traditional territories. But Ottawa had been treating them as an afterthought. In fact, the constitutionally protected Aboriginal and treaty rights required that they be involved at the outset with project planning; that their rights be acknowledged before projects proceed; and that the projects undertaken respect “the long-term sustainability of the environment and their communities.” Aboriginal Canadians see themselves as stewards of the environment, a conviction that is integral to their identity. Eyford understood that and recommended to the prime minister cultural sensitivity training “at all levels” of the federal government to improve the negotiation process.
The lack of credibility of the Harper government was a deeply rooted problem. Eyford noted that the First Nations peoples had a deep mistrust of Stephen Harper after the aggressive passage of Bills C-38 and C-45 and the profound legislative change they created. If, for example, the Northern Gateway Pipeline went through a community, community consent was no longer needed, just the consent of the individual people whose property the pipeline traversed. Changes were also made to the Indian Act without proper consultation. The Canada–China Investment Treaty signed in September 2012 was adopted without consulting First Nations, even though it affected their constitutional rights.
Finally, after a promise of greater consultation, Harper made surreptitious, unilateral changes to the contribution agreements with Canada’s 630 bands.4 These contribution agreements were their primary source of income. In the 2013 appendix of conditions attached to the documents, there were a number of provisions never seen before, and the bands were in turmoil about whether to sign. The bottom line was that the conditions in the appendix could be interpreted as requiring bands to support omnibus legislation and proposed resource developments as a condition of accessing their funding. First Nations believed that the federal agenda was designed to develop the projects at the expense of the environment and to find a way to force First Nations to go along. But as Eyford noted in his report, failure to explain the rationale for the legislative changes would only harden attitudes and entrench the positions of the First Nations.
The 2013 federal budget raised more red flags for Canada’s Aboriginals. Despite promises, the document included almost nothing new that would alleviate poverty for First Nations. Instead, it introduced “workfare” for native youth. Without prior consultation with native leaders, the government announced $241 million over five years for a native youth job-training program. Bands could only access the money if they made it mandatory for youth on social assistance to participate in the program.
Workfare seemed an odd way to recognize self-determination or mend a broken relationship. The elephant in the room was the fact that there is a third level of government in Canada with constitutional protection, which many have argued should be getting transfer payments not handouts. What this centuries-old injustice requires is a visionary and a peacemaker, not a federal government that perpetually tries to strong-arm opponents into submission. Three former prime ministers—Brian Mulroney, Jean Chrétien, and Paul Martin—all denounced the Harper government’s unilateral approach to the First Nations relationship.
KITIMAT, WHICH IS both the intended terminus for the Northern Gateway Pipeline and the proposed location of two LNG plants, is within the traditional territory of the Haisla Nation. In March 2013, the federal government unilaterally announced that Kitimat would become a public port. The chief of the Haisla Nation only learned about the decision when he read about it in the newspaper. It was not a confidence builder.
On April 24, 2013, the chief councillor for the Haisla Nation, Ellis Ross, wrote a zinger to the minister of transport, Denis Lebel, and the then minister of natural resources, Joe Oliver. The Haisla were unpleasantly surprised by the announcement that Kitimat would be designated a public port under the Canada Marine Act, wrote Ross. “Canada had ample opportunity to apprise the Haisla Nation of its intention to establish a public port at Kitimat prior to making its public announcement. Your choice not to do so underlines a profound lack of understanding of the legal relationship between your government and the Haisla Nation.”
The Haisla Nation had asserted a powerful claim of Aboriginal rights and title to its entire traditional territory. Chief Ross continued, “The new regulatory regime that you are contemplating has the potential to infringe our aboriginal rights and title and, accordingly, cannot lawfully proceed absent appropriate consultation and accommodation.” Ross said the Haisla Nation was already working effectively with stakeholders Rio Tinto Alcan and Shell Canada in Kitimat to regulate non-toxic LNG cargoes. The Haisla didn’t need the heavy hand of the federal cabinet intervening. He concluded that Canada was advancing the public port proposal to further its tar sands agenda, which would see “pernicious hydrocarbons, in particular diluted bitumen” move through their territorial lands and waters.
Ross reminded the cabinet ministers that the Haisla Nation had been instrumental in getting the parties to agree on an appropriate regulatory framework for the Douglas Channel. Canada had promised that the Haisla would sit on the relevant task force, and had then excluded them. This was “discourteous.” Canada had also refused to engage in meaningful consultation on the Northern Gateway Project, a project that, in the Haisla Nation’s view, was a threat to them, the more so because the review process on the project was, in their opinion, deeply flawed.
Ross ended his letter with the words “You are, with all respect, not acting in accordance with the honour of the Crown. Please review this matter and re-engage with the Haisla Nation but this time on the footing of equality, legality, and respect.” From the Haisla’s perspective, and given the Harper government’s objectives, Canada should have involved them in the decision. As Eyford put it, “This has undermined relations and created suspicion about the Government of Canada’s motives and agenda.”
No one knew the territory better than First Nations. They wanted a role in monitoring pipelines and tanker traffic, and in providing emergency response, demands that industry supported. Instead, the Harper government said it would not fund or participate in a proposed working group on that subject. Eyford expressed the bottom line with a flourish of understatement: “Northern Gateway appears to lack a critical mass of support among British Columbia First Nations.”
The Carrier Sekani Tribal Council was every bit as forceful as the Haisla’s. They thanked Eyford for meeting them in Prince George in May 2013 during an internal planning session on pipelines, but they had a message to deliver. The chiefs wanted to assure Eyford that they were not anti-development. They wanted him to know that they were prepared to work with companies that offered sustainable development. They would also work with the Crown on ensuring their people benefitted equally from development in their territories, but the Crown had walked away, unwilling, in their view, to negotiate a fair deal.
The chiefs were also concerned that loans owed as a result of fruitless negotiations were a burden to the First Nations. They were well aware that their rights and title were enshrined in the constitution, and supported by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada had endorsed. On behalf of the chief, the council wrote, “Governments on countless occasions have broken promises and the level of trust is diminutive.” They pointed out that the Conservative government did not implement the Kelowna Accord or keep its promised commitments of $5 billion in extra funds when they took office.
The Carrier Sekani position on the transport of bitumen through their territories by Enbridge was an absolute “no,” at any price. That was partly because of their low opinion of the firm: “This company has a terrible safety track record and is one of the most deceitful organizations that we have ever dealt with since the industry entered our territories. We are not holding out for a better deal as some have presumed. In this situation, no means no.” In an interview in April 2014, Enbridge CEO Al Monaco observed, “We probably should have spent more time building trust.”
According to the chiefs, some industry players had acted in good faith, but others had not. They had watched as industry extracted resources from their lands “and governments continue to accrue benefits while our communities still live in third-world conditions.” This time, revenues had to be shared proportionately. The chiefs also noted the 30 percent cuts to band and tribal council funding that the Harper government had made. The Assembly of Manitoba saw its funds cut by 80 percent.
First Nations peoples were “appalled at the comments by Minister Joe Oliver who labelled us as radicals.” They found his attitude towards their communities racist. “We cannot understand why we would be considered radicals for standing up and protecting our rights in our own lands. We are protecting our lands, waters and resources for all our children’s children.” They asked for a public apology from Minister Oliver for his disrespectful comments, and then watched as the Prime Minister Harper promoted him to the post of finance minister after the late Jim Flaherty’s retirement.
From the First Nations perspective, the passage of omnibus legislation in bills C-38 and C-45 was a reminder “that colonization is still alive in Canada.” The tribal council reminded everyone, “The original practice of colonization was to isolate us on reserves in order for the Crown to extract our resources. The new version of colonization is to change laws without consulting us in order to extract our resources.” The tribal chiefs requested that their letter be included in Douglas Eyford’s report to Prime Minister Harper. It was.
With Stephen Harper determined to push ahead and First Nations committed to protecting their constitutional rights and the environment, it wasn’t hard to predict a collision was coming. That was all the more likely with the Idle No More movement gaining traction in the Aboriginal community—a movement based on a sense that “this is our time” and the status quo is unacceptable. Former prime minister Paul Martin told me he is worried about the deteriorating relationship between the federal government and First Nations people. “The great tragedy of Kelowna is that the fundamental problem has only gotten worse as Harper has gone back to the old way of doing things that has been failing since the 1920s,” he said. “There is great tension now because the Harper government has reversed wheels on the issue.”
The Kelowna Accord was supposed to lift up the standard of living for Aboriginals and honour treaties. The immediate goal was to fund health and education infrastructure, and give native Canadians a share in the resource developments taking place on their lands. After eighteen months of hard negotiations, a remarkable consensus had been achieved. For the first time, all stakeholders, including the federal government, the provinces, territorial leaders, First Nations, Métis, and non-status Indians, had come to an agreement. There would be $5 billion over five years, and hard performance measurements of the results.
The wisdom of Kelowna was in the approach: “Look, tell us what the issues are.” Martin recalled, “They told us what the problems were: education, health care, clean water, housing, economic development, accountability and, of course, resource sharing. Then we asked all of the Aboriginal peoples to tell us what the solutions were and they told us. Once again, we knew imposing solutions doesn’t work. So governments were going to be partners in bringing about the conditions that would put the Aboriginal people’s own solutions to work.” This was a fundamental departure from the usual approach of bureaucratic analysis and unilateral federal action. “Two hundred years of history has shown us that that doesn’t work,” Martin told me.
Although Stephen Harper promised to support the principles of Kelowna, he never did. In fact, Harper made cuts to health programs such as the Aboriginal Youth Suicide Prevention Strategy and the Maternal and Child Health Program, while committing $3.5 billion to improving maternal health abroad.5 Many First Nations people do not have equal access to clean drinking water, good education, or adequate housing. Martin believes the Harper government has created the false impression of a crisis of accountability and transparency in the First Nations world. “The fact is,” Martin told me, “there are outstanding Aboriginal leaders and in the vast majority of cases, they are both accountable and transparent.”
ON NOVEMBER 29, 2013, the day the final Eyford report was presented to the Harper government, the president of the Canadian division of the US company Kinder Morgan6 told a business forum at Lake Louise, Alberta, that First Nations issues desperately needed to be addressed. Ian Anderson said, “Facing up to our situation . . . is mission critical. It’s not someone else’s problem to solve. It’s our issue to resolve—all of us.” Governments, industry, average citizens, members of the public, had to listen and learn, he said. “We’ve got to help create economic certainty for industry for our country, but only through hard work with our First Nations communities to make them partners in what we’re trying to accomplish.”
The Harper government was sufficiently concerned about the warnings contained in Eyford’s draft report that before receiving the final version in late November, the prime minister dispatched several cabinet ministers and their deputies to a meeting in Vancouver on September 23, 2013. Once again, he misplayed his hand.
The Union of British Columbia Indian Chiefs was invited to attend on very short notice. Harper was ignoring one of the key recommendations of his envoy: respect your negotiating partner. The chiefs were not given a preamble or agenda, or any idea of what was on the table. They had been summoned, not invited. Once again, the odour of paternalism was in the air. Grand Chief Stewart Phillip had a sinking feeling “that perhaps they’re covering their backsides in terms of a consultation record”—a reference to Ottawa’s largely unfulfilled constitutional obligation to consult. This was the first time that the chiefs had heard from the Harper government in months. Eyford stressed in his report that regular meetings and discussions were critical to building relationships with Aboriginal communities. The Carrier Sekani First Nation had repeatedly asked for such meetings with the prime minister, but the requests had gone unanswered.
The sad truth was that it was all really unfinished business from the historic Crown–First Nations Gathering of January 2012, attended by the prime minister, the governor general, and First Nations chiefs. That had been a meeting that promised hope and re-engagement. But a year later, in January 2013, the reality of life for Canada’s Aboriginals was even further behind the rhetoric of the inaugural Crown–First Nations Gathering. The anniversary of the historic 2012 meeting was a dismal affair at the official level. The governor general did not attend the January 11, 2013, meeting—a deep insult to some of the chiefs because he is the head of state and represents the Crown, with whom their treaties were made.
The prime minister and some of his ministers were there, as was AFN National Chief Shawn Atleo. But Atleo’s leadership had been deeply wounded by the government’s failure to advance the agenda. Many chiefs boycotted the meeting and sided with the hundreds of members of Idle No More, who no longer supported endless talk without palpable outcomes. Instead, they rallied round a lone, female chief who from her cold teepee on an island in the Ottawa River would soon steal the show from the politicians— Theresa Spence.
In his opening remarks, the PM said he understood that as head of government, the leaders wanted him to hear the dialogue directly. Harper made reference to commemorations of the War of 1812 that included a tribute to First Nations support and his apology for the residential schools. This came across as yet another attempt to substitute ceremony for substance. Some chiefs expressed anxiety over even sitting around the table with Harper. Outside, their people were calling for real change. The sound of the street protest could be heard in the prime minister’s office, where the meeting was taking place. Several Idle No More members had stood at the door of the Langevin Block and begged their chiefs not to enter and to hold fast with Chief Spence. Grand Chief Charles Weaselhead perhaps said it best: “Idle No More and our grassroots peoples force both of us to take heed and address these issues.”
The number one priority for the First Nations was a renewed relationship and full implementation of treaties. The nations had very specific demands they wanted met, not interminable negotiations imposed on them for decades. Instead of advancing treaties, the provisions of Bills C-38 and C-45 had run roughshod over them. Harper knew Idle No More put pressure on First Nations leaders, but he offered them nothing they could use to show their people that dialogue was getting somewhere. He had made the political judgment that if an Aboriginal Spring were to occur, it would not be popular with Canadians.
No one should have been surprised that Canada’s Aboriginals had finally lost their patience. First Nations have been waiting for social justice for 250 years. With the Constitution Act of 1982, Canada’s Aboriginals believed their special rights and status would finally be implemented under section 35(1). But eight years passed with no real progress on land claims. The Innu occupied the NATO Base at Goose Bay, the Lubicon Cree boycotted the Calgary Winter Olympics, and resource blockades were erected in British Columbia. Then, in July 1990, came the first powder-keg moment: the deadly Oka crisis in Quebec that ended with the tragic death of Corporal Marcel Lemay of the Sûreté du Québec. Five years later, it was Ipperwash, where native protester Dudley George was shot dead by police.
The Royal Commission on Aboriginal Peoples in 1991, called by the federal government in response to Oka, dragged on for five years. Finally, a five-volume, four-thousand-page report was published in 1996. Aboriginals are still waiting for the renewed relationship and the “sharing” promised in the report. And while it was true that the Harper government, inspired by the late NDP leader Jack Layton, made a historic apology in the House of Commons in June 2008 for the criminal abuse of native children at residential schools, even that laudable gesture quickly soured. After creating the Truth and Reconciliation Commission to look into the tragedy of the residential school period, the Harper government then refused to turn over documents requested by the Commission “for privacy reasons.” In the end, the Truth and Reconciliation Commission had to take the very body that had created it to court to obtain documents it needed to do its work. Shades of Parliamentary Budget Officer Kevin Page.
Stephen Harper simply didn’t grasp the depth of the anguish in the native community. Many Aboriginals carried horrific memories from the days of the residential schools—of sexual and physical abuse, torture, even documented cases of medical experimentation. Former PM Paul Martin told the federal Truth and Reconciliation Commission that it was “cultural genocide.” About 150,000 children were taken from their families and sent to church-run schools to “civilize” them.
Facing the combined and often allied power of Big Government and Big Business, Canada’s Aboriginals have traditionally fought back in two ways: lawsuits and symbolic statements. Chief Theresa Spence began her now-famous forty-seven-day hunger strike on December 11, 2012—a month before the prime minister met the AFN in his office. She was a single, middle-aged Aboriginal woman with a grade-eight education received at a residential school. She wanted a working rather than a ceremonial meeting with Canada’s leaders, including the governor general, to discuss “treaty issues.”
Chief Spence was from Attawapiskat, a northern Ontario reserve with third-world conditions situated adjacent to a fabulous diamond field. DeBeers Canada is developing open pit mines there “with a $7 billion footprint.” The diamonds are some of the finest quality ever discovered, and the recent find of a thirty-fivecarat stone at the site made news around the world. For the use of their traditional lands, the company gives the Attawapiskat Nation $2 million a year. Some natives get a hard hat and short-term jobs. When the company eventually leaves, the band will be left with giant craters on their traditional land.
The Attawapiskat First Nation is part of Treaty 9, known as the James Bay Treaty. It was signed in the summers of 1905 and 1906, with treaty commissioners from Ottawa speaking on behalf of King Edward VII—which was why Spence wanted the governor general included in the meeting she was demanding. For $5 and land for a reserve, the native signatories to the original treaty were told they would receive “benefits that served to balance anything that they were giving up.” Chief Spence had a simple condition for ending her fast: a face-to-face meeting with the chiefs, the prime minister, and the governor general. Chief Spence, like the young people thronging the grounds in front of Parliament Hill, had simply come looking for the honour of the Crown.
Instead of hitting the reset button and kick-starting a new era in the relationship as promised at the Crown–First Nations Gathering in 2012, Stephen Harper continued to act like an Indian Agent rather than a partner. Spence experienced the blunt force of the Harper government’s power. While she was on Victoria Island in a teepee in 18-degree-below-zero weather, Ottawa released an audit by Deloitte questioning the record keeping of the Attawapiskat band from 2005 to 2011—in other words, Spence’s competency, if not honesty. Hundreds of instances of questionable accounting practices were uncovered, and even though Spence had only been elected chief in 2010, the public shaming was all hers. Senator Patrick Brazeau and other Conservatives lined up to take potshots at her.
Brazeau, who would soon be facing criminal charges and expulsion from the Senate, said Spence wasn’t a good role model for native children. Some in the media and the general population carried Spence-bashing to the point of racism: Indians were lazy, freeloading drunkards, and their leaders stole from their own people. (The average salary of a First Nations leader is $36,845, about $10,000 below the average Canadian wage.) In its December newsletter, the right-wing Mackenzie Institute even hinted that some Aboriginal people had been “chumming around with some Iranian government officials.” At no point in the occasionally racist public dialogue did Stephen Harper intervene with a request for mutual respect.
The poisonous barbs and the Deloitte audit did their work. Chief Spence ended her fast without getting a meeting. According to an Ipsos Reid poll, only 29 percent of Canadians approved of what she had tried to do. But only 27 percent in the same poll believed that the prime minister was treating First Nations peoples fairly. Meanwhile, Chief Spence’s popularity grew by leaps and bounds in the native community and in other countries. Round dances and flash mobs occurred in Edmonton and Toronto, and even at the Peter Pond Mall in Fort McMurray, Alberta. Support for Spence and Idle No More came from indigenous people around the world. Te Wharepora Hou, a Maori women’s collective in New Zealand, took it as the global call they had been waiting for: “Now we can join together and start looking for solutions.”
Stephen Harper had promised a new respectful relationship between Ottawa and First Nations, but instead he set out to vilify an icon of the Idle No More movement. After a year in which he had done nothing to improve the life of Canada’s Aboriginals, he reserved his final mockery for his New Year’s message, boasting that his government “continued to strengthen First Nations relations in 2012.” Joining in Stephen Harper’s idea of relationship building, Canada’s spy agency, CSIS, kept close watch on Idle No More from December 2012 to February 2013, which included making lists of planned demonstrations.7 The policy of watching native protesters would soon be expanded to include all public demonstrations in the country by anyone.
Unlike other Canadians, many of whom disagreed with Harper’s steamroller politics but felt there was little they could do about it, First Nations employed another powerful tactic to fight back: the law. While Chief Spence was fasting on Victoria Island, two bands, the Mikisew Cree and the Frog Lake First Nation, began legal action against the federal government over Bills C-38 and C-45. The bands believed that the changes brought in by the bills violated their right to be consulted before native lands are affected by development. While both the NDP and the Liberals committed to resolving key native issues within a five-year time frame, the prime minister continued his personal version of the game Cowboys and Indians.
First Nations replied again with the litigation card. On January 30, 2014, it was reported that five more challenges were filed in Federal Court by groups arguing against a green light for the $7-billion Enbridge project. Four environmental groups and three native bands were trying to get the court to set aside the federally appointed review panel’s report. They noted that the proposed twin 1,177-kilometre pipelines, one for the bitumen, the other for the toxic product that thins it, would cross more than 360 water courses in Alberta and 850 in BC—some of the least contaminated rivers in the world. A high proportion of the proposed route crosses lands traditionally used by Aboriginals.
Things got even more complicated for the Harper government when, on January 8, 2013, the Federal Court ruled that Métis and non-status Indians living off-reserve were “Indians” under section 91(24) of the Constitution Act of 1867, and that they fell under federal jurisdiction. The Daniels v. Canada case had taken fifteen years to work its way through the courts. It was launched in 1999 by the late Harry Daniels and the Congress of Aboriginal Peoples (CAP), the organization former senator Patrick Brazeau once headed. The court decision affected six hundred thousand people. The Harper government appealed, but the Federal Court of Appeal upheld the decision of the lower court on April 17, 2014. An estimated $9 million was spent by the federal government to fight the Daniels case. CAP, which had spent $2 million during the court battle, announced that if the Harper government decided to appeal the case to the Supreme Court of Canada, the congress would continue the fight “in order to address the wrongs of the past.”
Today, over 75 percent of Aboriginal people in Canada live off-reserve. Paul Martin applauded the Supreme Court of Canada after its historic ruling backing Métis land claims in Manitoba in March 2013.8 “Thank heaven for the Supreme Court. But I would rather have the government of Canada remember its honour in these matters than have the Supreme Court remind the government of its obligation of honour.”
With trust levels for Ottawa at an all-time low, Stephen Harper appeared to blink. With the deadlines closing in for Northern Gateway, and his envoy telling him he needed the First Nations to close the deal, the prime minister offered an olive branch. The new First Nations education bill was announced with great fanfare on February 7, 2014. It had the support of national AFN chief Shawn Atleo, but Harper had hung Atleo out to dry during the Idle No More protests in Ottawa by giving him nothing. Atleo had lost respect and support among his own people. They viewed his endorsement of the new bill with anger rather than appreciation.
Meanwhile, the Harper government repeated a fundamental error in judgment. It had failed to consult First Nations on an earlier draft of the legislation, and then did the same thing again with the new bill. And the legislation had another political aspect that wasn’t missed by First Nation chiefs. None of the money attached to it, $1.9 billion over three years, would be spent until 2016— after the next election. Further, the new bill tabled in Parliament as “The First Nations Control of First Nations Education Act” gave only the illusion of native control. The minister of Aboriginal affairs and northern development still had sweeping powers. Manitoba chief Derek Nepinak laid down the cultural reality in an opinion piece for CBC News: “Only through the development of our own education systems based in our indigenous pedagogy and ways of being will our students thrive in a school system.” Nepinak emphasized that there had been a long history of colonial lawmakers in Canada “creating laws and policies in the pursuit of making indigenous peoples more like them.” That agenda had led by a direct route to the tragedy of the residential schools.
A rarely convened oversight body within the Assembly of First Nations, the Confederacy of Nations, met on May 14, 2014, and resolved to reject the Harper government’s native education bill, C-33. On May 27, 2014, First Nations leaders, youth, and elders gathered in Ottawa for an AFN Special Chiefs Assembly. The chiefs debated for several hours whether to kill Bill C-33 or work for amendments. In the end, they voted unanimously to reject the government’s education bill. They wanted an honourable process that would lead to “true First Nation Control of education.” That could never happen if the minister of Aboriginal affairs still had the power, as he did under the proposed deal, to take control of a community education program based on performance outcomes. Those performance outcomes were in turn developed by provincial governments with no Aboriginal input. As the First Nations had learned on other occasions, you always had to read the fine print when dealing with Stephen Harper.
In an interview with Evan Solomon on CBC radio, Paul Martin said he was “very angry” about the federal government’s refusal to talk to First Nations about education on their own terms, and understood why Aboriginals had bristled at the Harper government’s plan. Martin believed that, had Stephen Harper invested in the Kelowna Accord, disasters such as the Attawapiskat housing crisis might have been averted and more Aboriginal young people would be in university and the workplace. Instead, ten more years had been wasted.
The Harper government wasn’t in an accommodating mood. Aboriginal affairs minister Bernie Valcourt, part of the federal team that travelled to BC to promote resource development, put the education bill, already at second reading in the House, on hold. His bottom line remained unchanged: no bill, no money. The $3,500-per-student gap between off-reserve and on-reserve education grants would remain. At the time this book is being written, the legislation continues to sit on hold in a state of parliamentary limbo.
Shawn Atleo had no choice but to resign as national chief of the Assembly of First Nations. He faced a vote that would likely have ousted him anyway. Many of the chiefs who supported Idle No More thought that Atleo had aligned himself with a government that was working against them. Stephen Harper hadn’t even been willing to call an inquiry into hundreds of dead and missing native women. Atleo failed to deliver anything but Harper’s warmed-over rhetoric.
In May 2014, a new poll done by Forum Research found that the Prime Minister’s Office was one of the least trusted branches of the federal government, rivalled only by the Senate. The Supreme Court, where the First Nations lawsuits may end up, has a trust level four times that of the PMO.
On a chilly March day in Ottawa, with the wind blowing out of the east, the Harper government’s reputation sank to a new low among Canada’s Aboriginals. A group of Cree youth walked 1,600 kilometres to Parliament Hill from the James Bay Cree community of Whapmagoostui—a fly-in community of about eight hundred people on Hudson Bay—in support of Idle No More. They called the trek “The Journey of Nishiyuu,” meaning the journey of the people. They left their community on January 16, arriving more than two months later in Ottawa on March 25, 2013. When they started their walk through a thousand miles of winter, it was minus 54 degrees. Some days their toques froze to their heads like helmets; other days they were up to their knees in slush.
By the time the original six walkers and their guide reached Ottawa, their numbers had swollen to 270 from people who joined in along the way. Indigenous and non-native people thronged to greet the walkers in a crowd of about 4,000 on Parliament Hill. A banner emblazoned with “Keep your word” fluttered in the keen wind. Chief Theresa Spence, who had inspired the walkers, greeted them with a message: the treaties between the Crown and First Nations were not going away, and the meeting she had asked for from Victoria Island had still not happened.
Opposition leader Tom Mulcair had no coat and faced the bitter wind, waiting for hours as the walkers gave their emotional testimonials before he delivered a thirty-second speech. He said simply that he had asked the government why native children receive 30 percent less funding for education than off-reserve students. He declared he would keep on asking the question.
No one from the Harper government welcomed the walkers to Ottawa, and the prime minister was otherwise engaged. Stephen Harper had flown to Toronto to greet a pair of panda bears he had rented from the Chinese government for $10 million, which were arriving that day at Pearson airport.