The Lawyer's Daily is now Law360 Canada. Click here to learn more.

Sharing the wealth of the lands | Stephen O’Neill

Tuesday, November 02, 2021 @ 8:09 AM | By Stephen O’Neill

LexisNexis® Research Solutions
Stephen O'Neill %>
Stephen O'Neill
“The prime minister … cares about the people way up north, that we were trained our entire lives to ignore, trained our entire lives to hear not a word of what’s going on up there. And what’s going on up there ain’t good. It’s maybe worse than it’s ever been, so it’s not on the improve. (But) we’re going to get it fixed and we got the guy to do it, to start, to help. Thank you everybody. Thanks for listening to that.” (Gord Downie, Tragically Hip Concert, Kingston, Ont., Aug. 21, 2016).

Less than 72 hours after the Sept. 20, 2021 federal election, premiers from 10 provinces and two territories participated in a Council of the Federation teleconference and called for an “urgent” increase in health-care funding. Nunavut did not participate given an election in the territory at that time.

“Provincial and territorial health-care systems are facing serious challenges and there is an urgent need to act,” British Columbia Premier John Horgan said in a media release.

Six days later, CBC news reported on a story about Charlotte Karetak, who had to travel more than 1,200 kilometres from her home in Arviat, Nunavut, to give birth to her first child in an unfamiliar setting. She is one of many women in the territory who have few options when it comes to giving birth, and who often have to travel out of their communities to do so.

“It still blows my mind that we don’t have (more) services here up north, especially in Arviat, where there’s a lot of women who are giving birth every year,” said Karetak.

Canadians might be inclined to think that the lack of fair funding for services and infrastructure in remote First Nations communities is a result of limited funds, budgetary processes and political choices. And after all, to the great majority of people residing in Canada thousands of kilometres removed from so many northern communities, “out of sight, out of mind,” right?

But what if this state of third world affairs was not only morally wrong, (which it is, 100 per cent), but legally and constitutionally wrong as well? What do I mean?

Canada’s Constitution is the supreme and highest law in this country. And s. 35 (1) of the Constitution Act, 1982, states:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

The issue of dispossession of Indigenous lands and resources, and the ignoring of legal rights was faced head on, some 31 years ago, when former Chief Justice Brian Dickson and Justice Gérard La Forest of the Supreme Court of Canada courageously stated in the landmark Sparrow decision:

For many years, the rights of the Indians to their aboriginal lands — certainly as legal rights — were virtually ignored (R. v. Sparrow [1990] 1 S.C.R. 1075).

Quoting professor Noel Lyon, the Supreme Court justices went on to adopt the following statement:

Section 35 calls for a just settlement for aboriginal peoples.

Fourteen years later, in another seminal Supreme Court of Canada decision, the court wrote:

Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. …The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests (Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511).

Did Canada’s unconquered Indigenous peoples sign up to become poor in their own lands — to become dispossessed of a fair share of the wealth and resources from their traditional homelands?

Today, it would be a grave mistake for political leaders and people of power to hold copies of hundreds of historical Crown/Indigenous treaties in hand, and declare with certainty that such treaties were treaties of cession and extinguishment of Indigenous rights. And that is because at long last, Canadians are beginning to hear and read about the true spirit and intent of so many of the historical treaties. This emerging information may have always been there, but it is now resurfacing through the living accounts of elders, additional historical research, treaty records and diaries and from oral histories as well.

Take for example the 1996 publication, The True Spirit and Original Intent of Treaty 7. As stated on the book’s opening page:

The True Spirit and Original Intent of Treaty 7 is based on the testimony of over 80 elders from the five First Nations involved in Treaty 7 — the Bloods, Peigan, Siksika, Nakoda, and Tsuu T’ina. The elders consistently report that the treaty as they understood it was a peace treaty, not a surrender of land, and that they had agreed to “share” the land with the white newcomers in exchange for resources to establish new economies — education, medical assistance and annuity payments.

Consider also John Long’s seminal and landmark book, Treaty No. 9 — Making the Agreement to Share the Land in Far Northern Ontario in 1905. As Norm Wesley, a grandson of a Treaty No. 9 signatory, and himself a former chief of the Moose Cree First Nation, writes in the foreword:

We were, and continue to be, adamant that the treaty is a testament to our people’s understanding, which is to coexist with the newcomers, to be protected, and to grow and prosper.

And so, we come back to health care and infrastructure. No one can deny the serious challenges in provincial and territorial health-care systems and the urgent need to act. But if we look at Canada’s northern Indigenous communities — if we open our eyes — surely, we can agree with full consensus that the need to address health-care systems and infrastructure is doubly urgent and beyond anyone’s definition of a crisis point.

Given the constitutional significance of treaty and aboriginal rights, and the honour of the Crown, it cannot be the case that in Canada, nations, bands and communities came into treaty with the Crown only to become poor in the lands upon which the Creator placed them and to be dispossessed of a fair share of the wealth emanating from their homelands.

Morally, and arguably legally too, there rests upon the Crown governments of this country a serious and doubly urgent need to address the long-outstanding health-care and infrastructure crises too long existent in these communities.

“(But) we’re going to get it fixed …”

Stephen O’Neill was appointed a judge of the Ontario Superior Court of Justice in 1999, retiring in 2015. Before his appointment as a judge, he practised law out of Sudbury, focusing on Indigenous legal and justice issues. He has travelled extensively throughout northeastern Ontario and he has written and spoken extensively on Indigenous and Crown /Aboriginal issues. He recommenced the practice of law in 2016 with the firm Nahwegahbow, Corbiere and his practice is devoted solely to First Nations issues. In 2009, Justice O’Neill determined to paddle across Canada, following the historic Route of the Voyageurs. He has reached Yellowknife and will undertake the final phase to Tuktoyaktuk and the Arctic Ocean in 2022.

Interested in writing for us? To learn more about how you can add your voice to 
The Lawyer’s Daily, contact Analysis Editor Peter Carter at or call 647-776-6740.