Natural Resources Transfer Agreement, 1930
First Nations have asserted their relationship to the land since before contact with the Europeans. At the time of Treaty, the land question was of great magnitude. In 1874 during the negotiation of Treaty 4, the signatory Chiefs questioned the sale of First Nations’ land to the Hudson’s Bay Company and demanded transparency and accountability from the Crown. Elders tell us that at the time of treaty signing, the federal government’s spokesperson, Lieutenant Governor Alexander Morris, stated that the First Nations would continue making a living from the land the way they always had. As we know, this has not happened. At the time of the adhesion to Treaty 6 it was understood by the First Nations that it was only the ‘dry land’ that was to be shared. The natural resources were to remain with First Nations for their benefit and use.
First Nations did not relinquish, cede or surrender rights to the natural resources at the time of Treaty negotiations. In fact, at the time of Treaty, First Nations agreed to open up the land for settlement, sharing six inches into the ground or a plough share depth for agricultural purposes. This is supported by both oral history and written sources. The Elders tell us that there was no word in the First Nations’ languages to describe selling the land, and the concept of selling the land and its resources would have caused extensive discussion.
Elders have advised that the concept of First Nations land ownership must be placed in its appropriate context. First Nations understanding that the land is borrowed or lent to others is in opposition to the government’s view that the Treaties were land transactions resulting in the sale of land. The concept of ‘stewardship’ is also to be discussed and must be carefully communicated – government could potentially use stewardship as evidence that First Nations themselves agree they have no direct entitlement to the resources in reserve land and within Treaty territory.
The Natural Resources Transfer Agreement, 1930 (NRTA) granted the “administration and control” of the land and resources to the provincial government in Saskatchewan. First Nations view the NRTA as illegitimate because at no time did First Nations hand over to the federal Crown the authority over the .
Resource Revenue Sharing
The treaties and the sharing of the land is what allowed Canada to become the wealthy country it is today. Provincial governments have likewise acquired tremendous wealth from our traditional lands and territories, and such continues to this day. Yet First Nations are excluded from benefiting from the resource wealth.
First Nations governments need a stable, predictable revenue-sharing program that provides the financial resources necessary to meet their responsibilities. Revenue-sharing would provide that financial stability, as well as enhance the financial autonomy of First Nation governments.
The Royal Commission on Aboriginal Peoples reported in 1996 that provincial governments have benefited greatly from First Nations’ lands and resources and that they have a moral and a legal responsibility to participate fully in measures to restore self-reliance and autonomy, including arrangements to share resources.
First Nations in other parts of the country have successfully negotiated, or are in the process of negotiating revenue-sharing arrangements with provincial and territorial governments. The provinces of Quebec, Ontario and British Columbia have implemented First Nations’ revenue-sharing programs. The federal government and the provinces are negotiating revenue-sharing arrangements with First Nations in comprehensive claims settlements and modern treaties. This concept is not new.
A revenue sharing program with First Nations in Saskatchewan would meet several common goals for First Nations and the Government of Saskatchewan:
- Revenue sharing would help to honour the spirit and intent of the Treaties by compensating for past infringements and loss of access to traditional and ancestral lands within our Treaty territories;
- It would provide a more equitable sharing of the wealth in this province;
- Revenue sharing would help significantly in closing the socio-economic gap through improved social programs and new economic and employment opportunities; and
- It would encourage provincial economic growth by providing a stable and predictable investment environment for industry and others.
Saskatchewan First Nations already have a revenue-sharing agreement with the Saskatchewan government in the Gaming Framework Agreement. Through the Gaming Framework Agreement, the Saskatchewan government receives millions annually from the casinos operated by the Saskatchewan Indian Gaming Authority. In the 2012/2013 fiscal year SIGA generated 86.4 million in revenue, out that amount the Saskatchewan government received 25%, which calculates to 21.6 million dollars.
The First Nations have used this extra source of revenue wisely to improve the overall well-being of First Nations people. The benefits the First Nations receive from the gaming agreement have predominately contributed towards improving the circumstances of First Nations youth, elders, and the communities.
The Saskatchewan people should look at how this example of revenue-sharing has worked well for both Saskatchewan and the First Nations people. When they do, hopefully the lessons learned will contribute to a more open and frank discussion between the governments on how resource revenue sharing will ultimately lead to a greater benefit for all the people of Saskatchewan.
There is a growing interest among First Nation leadership to form a stronger and mutually beneficial working relationship with the natural resource development proponents in Saskatchewan. Improved relations with industry will create and environment for positive dialogue which in turn will foster an environment of greater business certainty for the natural resource sector in Saskatchewan.
Improved relations with industry will provide an opportunity for all parties to begin to understand each other’s obligations with respect to the duty to consult and accommodate. Although the duty to consult and accommodate is a constitutional legal obligation owed to the First Nations by the federal and provincial governments, certain procedural aspects of the duty to consult and accommodate are often delegated to the natural resource developing proponent. It is this aspect of the duty whereby the parties must reach a mutually agreed upon understanding in order to create an environment of greater business certainty.
Improved relations with industry will serve to open the doors to the greatest resource First Nations have to offer – a large, young and growing potential employee pool. As you are aware, the First Nation population is the fastest growing sector of Saskatchewan society. With investment by both parties, the natural resource sector can rely and depend on this employment pool, which has thus far been untapped by government and other business sectors.
Energy East – TransCanada
TransCanada is proposing to construct and operate the “Energy East” pipeline: a 4,500 km oil pipeline system from Hardsity, AB to Saint John, NB; to transport crude oil from Hardsity, AB and Moosomin, SK. to delivery points in Quebec (QC) and NB. The delivery points include three existing refineries in Eastern Canada and two new marine terminals: one at Cacouna, QC, and another at Saint John, NB, which will allow for the export of crude oil to international markets. The construction of the proposed pipeline would run through southern Saskatchewan, and potentially through reserve lands: Carry the Kettle and Sakimay First Nations.
TransCanada filed a Project Description with the National Energy Board (NEB) on March 2014. On October 30, 2014, TransCanada filed its formal application for the Energy East pipeline with the NEB. Filing the Project Description is the first step of the NEB regulatory process towards obtaining a Certificate, which if granted, would allow the Project to proceed. After receiving the full application from TransCanada, the NEB will schedule a public hearing, which will allow persons who are directly affected by the Project, or have relevant information or expertise relating to the Project, to express their views, which could be in favor or opposed. The NEB may also hear views on how the Project may impact Aboriginal communities, the use of traditional territory, and any potential or established Treaty or Aboriginal rights. After the hearing, the NEB will submit and make public a report to the Minister of Natural Resources with its recommendation whether to issue a certificate for the Project, after it has weighed both the positive and negative impacts.
Discussions are ongoing with TransCanada to keep the First Nations apprised of developments in relation to the Energy East project.
Line 3 Replacement Program – Enbridge
On 5 November 2014, Enbridge Pipelines Inc. (Enbridge) submitted an application to the NEB for the proposed Line 3 Replacement Program. The proposed project would include: the replacement of the existing Line 3 863.6 mm crude oil pipeline with a replacement 914.4 mm crude oil pipeline; the addition of remotely operated sectionalizing valves; the replacement of some or all Line 3 pumps and associated infrastructure and equipment; the addition of tankage at the Hardisty Terminal; and the decommissioning of the existing Line 3 pipeline.
On April 25, 2016, the NEB approved Enbridge’s L3RP with 89 project specific conditions, which are designed to enhance safety, environmental protection, and to ensure consultation with stakeholders. One such condition provides that Enbridge is to develop a plan for Aboriginal groups to participate in monitoring the construction of the new pipeline. In addition, the Panel recommended that NEB, the pipeline industry, and Aboriginal groups work together to create a set of principles, objectives or a framework approach that can be used to assist the development of Aboriginal monitoring programs for large pipeline projects.
The NEB granted intervener status to 39 individuals and stakeholders. There were thirteen (13) Aboriginal groups from Saskatchewan who participated either as commenter or as intervener: File Hills Qu’Appelle Tribal Council; George Gordon; Kahkewistahaw; Keeseekoose; Moosomin; Mosquito; Ocean Man; Ochapowace; Pasqua; Poundmaker; Sweetgrass; Thunderchild; and White Bear.
FSIN signed a Letter of Understanding with Enbridge on April 1, 2015, to undertake work for the 2015-2016 fiscal year, including liaison between industry and First Nations, which will also include research, information sharing, and education to the First Nation communities with regard to the Line 3 Replacement Program. Discussions continue with respect to further involvement with Enbridge for the 2016-2017 fiscal year, particularly to keep the First Nations apprised of the development of this project.