Sask. First Nations, Opposition call for province to fix duty-to-consult process

© Adam Hunter/CBC Devin Hernatchez, a councillor with the Lac La Ronge Indian Band, said the provincial duty to consult is actually a ‘duty to insult.’ He and other leaders who spoke Monday said Indigenous people are not being properly consulted and the process needs to be improved and enshrined in Saskatchewan law.

Saskatchewan’s Opposition NDP and First Nations leaders are calling for the provincial government to overhaul its duty-to-consult process and enshrine a new process with legislation.

Duty-to-consult legislation requires First Nations, Métis and Inuit people in Canada to be consulted before third parties do things like land development and resource extraction.

On Monday, Opposition critic for First Nations and Métis relations Betty Nippi-Albright introduced Bill 610, The Meaningful Duty to Consult Act.

In the spring, she introduced a similar private member’s bill that government members did not support.

The current process in the province involves the government sending notices to communities when Crown land adjacent to reserves is sold. First Nations are consulted through registered letters or meetings with industry when appropriate.

The Opposition’s bill would call on the government to consider First Nations communities first when the province sells Crown land, a process typically completed at auction.

Indigenous leaders have expressed concerns that these sales can restrict treaty rights to hunting, fishing and gathering.

Nippi-Albright said the provincial government is “selling off Crown land to the highest bidder without properly consulting Indigenous peoples.”

She saud the existing duty-to-consult policy lacks “teeth.”

“Because it is a policy and not legislation, the government does not have to follow it. This government doesn’t follow its own policies. Indigenous leaders have had enough.”

She said the existing policy is 12 years old and new rules not enshrined in legislation would amount to “lipstick” on a failed policy.

Nippi-Albright said the government failed to consult Indigenous leaders before releasing its recent white paper Drawing the Line: Defending Saskatchewan’s Economic Autonomy, and the introduction of the Saskatchewan First Act last week.

The Federation of Sovereign Indigenous Nations and First Nations leaders have criticized that paper for ignoring Indigenous rights.

The Opposition was joined by guests of several different First Nations Monday.

“We have been very concerned about the lack of duty to consult around our traditional territory,” said Kawacatoose First Nation Chief Lee-Anne Kehler.

George Cote, chief of Cote First Nation, said he is also concerned about the consultation process when it comes to the sale of Crown lands.

Devin Hernatchez, a councillor with the Lac La Ronge Indian Band, called the provincial government’s duty to consult a “facade.”

“It is not a duty to consult, it is a duty to insult, because it insults the Treaty relationship we have today.”

Hernatchez was also critical of the provincial government’s recent white paper.

“We hear a lot of window dressing about an era of reconciliation and then they go and slap us in the face with a white paper without even consulting us.”

Hernatchez said he and other leaders throughout the province want to share in the economic benefits of development and to be a part of the conversation from the outset.

“We are not against development. We want to see our people get out of poverty. There’s this notion of economic reconciliation. Well then, we need to be at the table so we can create ownership so that our people can get to work. But we’re not at the table” he said.

In the spring, Minister of First Nations and Métis relations Don McMorris acknowledged that the consultation process had “issues.”

McMorris said Monday the current 12-year-old policy will see changes. He said the government has been undertaking “consultation and engagement” for the past few months.

“There have been over 100 meetings with over 200 individuals having presentations at those meetings.”

He said all 70 Saskatchwan First Nations and 10 tribal councils have been contacted and the “engagement” was supposed to wrap up at the end of October, but will be extended to the end of November because some had reached out and asked to have their chance to meet.

McMorris said the duty to consult does not need to be enshrined in provincial legislation because it is “enshrined in the Constitution of this country – Article 35.”

Minister of Justice Bronwyn Eyre responded to a question by Nippi-Albright about a lack of consultation on the Saskatchewan First Act.

“Nothing in the Saskatchewan First Act which defends our exclusive constitutional jurisdiction over natural resources diminishes or detracts in any way from First Nations treaty rights which are enshrined in the Constitution.”