E1. Indigenous

The Minnesota Public Utilities Commission (PUC) rescinded the approval of a permit to reroute the Magellan Pipeline near Pipestone National Monument. Following backlash from Tribes and Native organizers, the Minnesota PUC has ordered “cultural and archeological” surveys to be conducted in consultation with local Tribes on two potential routes to ensure they do not impact lands that hold cultural value. The following statement is from Judith LeBlanc (Caddo), executive director of Native Organizers Alliance and NOA Action Fund:

“We applaud the decision by the Minnesota PUC to rescind its original decision to permit the Magellan Pipeline and ensure that Tribal sovereignty is honored. It is critical that sovereign nations with treaty rights to the land of the Pipestone Quarry have a say about developments that impact their sacred ceremonial grounds.

Too often mining and resource extraction developments are permitted and proceed without the consent or input of the sovereign nations who are impacted, and whose ancestral homelands are at risk.

Native Organizers Alliance has been honored to support in the grassroots efforts that led to this decision. We helped compile more than 20,000 petition letters in support of the on-the-ground efforts from partner Tribes and traditional community groups like the Yankton Sioux Tribe and Brave Heart Society.

We hope this is an example of things to come. Over recent years, we have seen more effort to incorporate Tribal knowledge, cultures, and perspectives into land management. It is the inherent right of sovereign nations to make decisions about their sacred and ancestral homelands.

Thankfully, through the commitment of Native peoples, Tribes, and grassroots organizers, we have seen an improvement in the management and stewardship of federal lands. Hundreds of Tribal Nations have signed co-stewardship agreements with the federal government. These federal-Tribal partnerships have strengthened protections of land and sacred places for the benefit of everyone. These partnerships are also pathways toward sustainable practices, which can mitigate the impact of climate change, prevent profit-driven development, and end the domination of fossil fuels.”

The post NOA Celebrates the Decision to Pause the Magellan Pipeline appeared first on Native Organizers Alliance.

In Pekuakamiulnuatsh Takuhikan, a majority of the Supreme Court of Canada held that Quebec breached the honour of the Crown in its negotiation of a funding agreement with the government of the Pekuakamiulnuatsh First Nation, and awarded the First Nation damages equal to the amount of the funding deficit created by Quebec’s breach. This case is important for First Nations, Métis and Inuit governments that are exercising their inherent right to self-government to provide services to their communities, such as the provision of child and family services, water, and policing, and where an Indigenous government is engaged in the negotiation of agreements, including service coordination and funding, with the provinces or Canada.

In this comment, I outline three parts of the majority’s reasons that may be relevant to Indigenous governments that are exercising their inherent governmental powers to provide services for their members. First, the majority clarifies that the Honour of the Crown is associated with “Indigenous difference”, which includes the exercise of the inherent right to self-government. Second, the majority confirms that the Honour of the Crown may be engaged in the negotiation and performance of agreements between the Crown and Indigenous governments. Third, the majority confirms that compensation may be available where the Honour of the Crown is breached in the negotiation, performance and renegotiation of an agreement. I close with a snapshot of the Crown’s dishonorable and bad faith conduct in the case. 

Although this case concerns the negotiation and performance of an agreement for the provision and funding of policing services on reserve, the reasons in this case may be more broadly applicable to other services provided by Indigenous governments, both on and off-reserve.

More broadly, the majority’s reasons point towards the importance of the Crown’s role in advancing reconciliation and supporting the inherent right of self-government through contractual agreements – not just treaties, constitutional amendments and legislation – with Indigenous governments. Finally, the majority clarifies that reconciliation may require compensation where the Honour of the Crown has been breached; this may also apply to the breach of other duties, such as the duty to consult and accommodate.

In early 2024, a majority of the Supreme Court of Canada affirmed the exercise of the inherent right to self-government as an activity associated with “Indigenous difference.” “Indigenous difference” includes four aspects: (1) cultural difference; (2) prior occupation;(3) prior sovereignty; and (4) treaties. “Indigenous difference” also reflects the “distinctive philosophies, traditions and cultural practices” and legal orders of an Indigenous people. It includes Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, the “other rights and freedoms” under s. 25 of the Charter, and “distinctly Indigenous interests” that might be the subject of a sui generis fiduciary duty. It is already clear that this concept will become central to the Court’s future jurisprudence and its application in this case indicates a potential shift in the Court’s approach to the inherent right to self-government. 

In Pekuakamiulnuatsh Takuhikan, the majority found that the First Nation had a credible claim to policing as a component of its right to self-government and that the province and Canada had entered into agreements with the First Nation on this understanding. The reasoning in this case may be applied in other contexts. For example, in An Act Respecting First Nations, Métis and Inuit Children Youth and Families, Parliament recognizes and affirms Indigenous peoples’ inherent right to self-government over child and family services. In doing so, Parliament has likely bound itself to the Honour of the Crown in its engagement with Indigenous governments that are exercising their right to self-government over child and family services. This may mean that the duties described by the majority in Pekuakamiulnuatsh Takuhikan may also apply to the negotiation of coordination agreements under s. 20(2) of the Children, Youth and Families Act. Similarly, the Honour of the Crown may be relevant to agreements under s. 23(1) of the proposed First Nations Clean Water Act. Although the Honour of the Crown is not engaged in every contractual undertaking with Indigenous governments, agreements that relate to an exercise of the right to self-government, whether proven or credibly asserted, will engage the Honour of the Crown. The majority explicitly confirmed that the Honour of the Crown even applies where an agreement states that it does not create or establish a s. 35 right. 

It is well-established that the Honour of the Crown gives rise to several different duties. In Pekuakamiulnuatsh Takuhikan, the Court adds the duty to act with honour and integrity in negotiating, interpreting and performing its contractual agreements to this list of duties, which includes:

• the duty to consult and accommodate;
• the duty to diligently fulfill a solemn promise;
• the duty to act with integrity in the negotiation, interpretation, and implementation of treaties.

The majority also affirmed the application of the Honour of the Crown to agreements related to treaty land entitlements and gaming revenue-sharing agreements.

The majority explains that when the Crown chooses to enter into an agreement that engages Indigenous difference, the Crown must negotiate with honour and integrity. It cannot engage in “sharp dealing”, “adopt an intransigent attitude”, or enter into negotiations “without intending to keep its promises” or with the intent to “coerce or unilaterally impose an outcome”. The Crown must “engage in genuine negotiations in a manner conducive to maintaining a relationship that can support the ongoing process of reconciliation between the Crown and Indigenous peoples.” This is a higher standard of conduct than that which is expected of parties in a regular contract negotiation.

Once the Crown has entered into an agreement, it must also “conduct itself with honour and integrity in performing its obligations”. It must be generous in interpreting the terms of the agreement and “comply with [those terms] scrupulously while avoiding any breach of them”. It must also act with honour and integrity when it is renegotiating the agreement. In doing so, the Crown cannot “take advantage” of the power imbalance between itself and Indigenous peoples; the Court gives the example of “agreeing to renew its undertakings on terms that are more favourable to it without having genuinely negotiated first.”

Although the majority distinguishes treaties, which create s. 35 rights, from non-treaty agreements, principles related to the Honour of the Crown will likely apply to both types of agreements. Much like treaties, which require an understanding of the surrounding context, non-treaty agreements should also be interpreted within the context of the relationship between the Indigenous government and the Crown, and with an understanding of the connection between that agreement and its promotion of “Indigenous difference”. Courts should always prefer the interpretation that is most consistent with the honour of the Crown.

The extension of the honour of the crown to non-treaty agreements may take some of the pressure off of Indigenous governments in their negotiation of treaties with the Crown. Although the formal ratification of an agreement as a treaty brings additional constitutional protections, the Honour of the Crown ensures that the Crown’s conduct in the negotiation and implementation of a non-treaty agreement will be held to a higher standard. In turn, this should remove the incentive for the Crown to delay treaty negotiations, where previously it may have preferred non-treaty agreements because of their perceived “mainstream” nature as regular contracts. 

When the Honour of the Crown is breached, compensation may be required to advance what the majority calls “reconciliatory justice”. The majority explains that the purpose of the Honour of the Crown is to “facilitate the reconciliation of the Crown’s interests and those of Indigenous peoples, including by promoting negotiation and the just settlement of Indigenous claims.” Where the Honour of the Crown is breached, compensation advances reconciliation by “repairing and maintaining the special relationship with the Indigenous peoples on whom European laws and customs were imposed.”

The majority clarifies that its order for compensation is not intended to require Quebec to fund policing at a certain level. It is a reality that Indigenous governments often receive less funding than necessary to provide levels of service that are comparable to services for non-Indigenous populations. The majority’s order for compensation is not, however, intended to alter the terms of Quebec’s agreement with the First Nation to require a certain level of funding. Rather, the majority is careful to note that its order for compensation is intended to address Quebec’s dishonorable conduct and to restore the relationship between the parties. The Crown’s inequitable funding of services, however, may be relevant to the standard of conduct required by the Honour of the Crown. 

In some ways, the majority’s decision to order compensation in this case is difficult to square with its decision to send the issue of compensation back to negotiation in Ontario v. Restoule. In Restoule, the Court granted a declaration that the Crown had breached the terms of the Robinson-Huron and Robinson-Superior treaties and clarified the meaning of the augmentation clause under those treaties. The Court did not, however, order compensation based on the amounts calculated at trial. Given the large amount of money at issue in Restoule, the Court may have been concerned that an order for compensation in Restoule would have been disruptive to the relationship between the parties – and to reconciliation (as the Court understands it). It may be that the basis for compensation in Restoule and Pekuakamiulnuatsh Takuhikan are distinguishable: in Restoule, the issue of compensation related to an annuity clause under a treaty, whereas in Pekuakamiulnuatsh Takuhikan, compensation was intended to restore the relationship between the parties after the Crown’s breach. If anything, the majority’s decision to order compensation in Pekuakamiulnuatsh Takuhikan but not in Restoule might illustrate the Court’s anxiety about the negative public perception and political impacts of its decisions, particularly where the financial costs are high. These concerns appear in Justice Côté’s dissenting opinion in Pekuakamiulnuatsh Takuhikan, where she argues that the Court should not provide remedies that limit the discretionary policy and budgetary decisions of Parliament or the legislatures. “Reconciliation”, it appears, is a boat that can only handle certain winds. 

In Pekuakamiulnuatsh Takuhikan, the majority found that Quebec’s conduct in the negotiation, performance and renegotiation of the agreement breached the honour of the Crown. Indigenous governments have seen this type of conduct before. The majority’s reasons offer a snapshot of bad faith negotiation tactics and dishonourable conduct that is all too common in the negotiation of funding agreements between the Crown and Indigenous governments.

The majority went so far as to cast doubt on Quebec’s negotiation of terms that limited Quebec’s financial contribution (a maximum amount) and that made the First Nation responsible for any deficit. The majority explains its concerns with Quebec’s conduct:

Having exploited Pekuakamiulnuatsh Takuhikan’s position of weakness at the time the agreements were renewed and having refused to really negotiate their funding terms, Quebec could not, for the current year, insist that the terms of the prior arrangement be adhered to in the “new agreement” as if they were not the product of its own abuse. In the circumstances, insisting on strict adherence to the terms of those clauses was also an abuse of contractual rights.

The majority also found that Quebec’s refusal to renegotiate funding, despite the First Nation’s precarious situation, “jeopardized the equilibrium and the very purpose of tripartite agreements.” Quebec’s conduct made the First Nation “feel like there was a ‘knife to the throat’”: it had to either impoverish itself by reallocating funding to make up the deficit or let the province take control over policing on reserve. Quebec’s conduct benefited itself and harmed the First Nation, “not only in financial terms but also from the standpoint of the quality of policing and its dignity.”

In the last year, the Court has affirmed Parliament’s capacity to recognize an inherent right to self-government through legislation, and has upheld a First Nation’s constitutional law related to leadership. Over the past two decades, Parliament and the provinces have entered into non-treaty agreements with the intention of supporting and advancing Indigenous self-government. The majority’s decision in Pekuakamiulnuatsh Takuhikan is consistent with this trend. Its clarification of the duty to act with honour and integrity in negotiating and performing its contractual agreements will be useful for those Indigenous governments that are working with the provinces and Canada to coordinate culturally appropriate services.

Franks, Scott. “Does the Honour of the Crown Apply to Funding Agreements?” Yellowhead Institute. 15 January 2025. https://yellowheadinstitute.org/2025/01/15/does-the-honour-of-the-crown-apply-to-funding-agreements/

The post Does the Honour of the Crown Apply to Funding Agreements? Case Comment – Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 appeared first on Yellowhead Institute.

January is here. We have a release of the much-anticipated Tahltan Database, winter seining is under way under prime ice conditions and rewilding work focuses on the Sub-Arctic Peatlands.

As a part of the Arctic Passion EU Horizon project the Indigenous Event Databases were released in June 2024 but two of them took a bit longer. Today the Tahltan Database has been released – a much anticipated source of knowledge of issues from the Stikine River basin and coastal Pacific area.

The database includes observations of climatic, ecological and cultural change from the Tahltan Nation. Tahltan researchers from Tu’dese’cho Wholistic Indigenous Leadership Development and the Snowchange Cooperative worked on a new database of Tahltan observations of climate, ecological and cultural change in the Canadian sub-Arctic for over three years.

Drawing on oral histories from Tahltan elders, as well as Tahltan science, self-documented videos and photos, the database is a vital effort to centre on-the-land, lived experiences of climatic change in efforts to tackle climate change in the Arctic and sub-Arctic.

Tahltan territory spans 93,728.26 square km, larger than Hungary, and has a border that runs for 1,644.9 km. It is a dynamic place with many unique land and water features, including 2,536 glaciers and 123 volcanoes. The Database has sections on Indigenous histories and colonial damages, observations of change, oral histories and videos and sections on revitalization of knowledge and training of younger generations to Tahltan culture and lands. The database can be accessed directly from here or through Arctic Seas portal as all databases.

In Finland winter seining is under way. It started 8th January. Ice conditions are at their prime and stocks look promising. The seining season is expected to last until mid-April. In the Landscape Rewilding Programme January brings new sites in Kemijärvi and Sodankylä totaling around 500 hectares of forests, rivers and Arctic Circle peatlands. We look forwards to an active restoration season.

Biden Designates Sacred Lands in California as National Monuments

President Biden announced the establishment of two new National Monuments in California, the Chuckwalla National Monument near Joshua Tree National Park, and the Sattitla National Monument in Northern California.  Below is NOA’s statement from Judith LeBlanc, executive director:

“These National Monument designations honor the history and cultural connections that Native peoples have always had to these places. A National Monument designation provides greater protection of sacred landscapes and helps ensure that generations to come, Native and non-Native, will learn the actual history of the United States. 

The designation of these two National Monuments reflects the hard work, advocacy, and commitment of sovereign nations to protect and steward these lands for the benefit of everyone. The Pit River Tribe has worked for the designation of the Sáttítla National Monument, a landscape that is a home where their cultural and spiritual connections run deep. The Chuckwalla National Monument is the result of years of dedication from Tribes and their allies to protect and steward this sacred place. Notably, the Chuckwalla monument will engage local tribes in crafting a co-management plan with the federal government, similar to the recent collaboration between five tribes and federal agencies to manage the Bears Ears National Monument. 

President Biden should also answer the call from the Quechan Tribe to designate the sacred Kw’tsán landscape in California as a National Monument.

President Biden’s actions right historical wrongs. All National Monuments and National Parks are on Native lands, and many were created by the forced and violent removal of Indigenous peoples from their homelands. These places are sacred to Native peoples, many are the places of our creation stories, the places where we gather traditional foods and medicines, and places where we go for ceremonies and prayer. 

Moving forward, engagement of Native peoples and sovereign nations in the stewardship of these lands should be standard practice. Native peoples know these landscapes better than anyone and their knowledge passed down through centuries are invaluable to protecting and managing these lands for the benefit of everyone.”

The post Biden Designates Sacred Lands in California as National Monuments appeared first on Native Organizers Alliance.

By Wallis Snowdon, CBC News, May 8, 2024

Protesters occupying a camp established by a First Nation in northern Alberta to defy drilling operations on its traditional lands have been ordered to vacate. 

The camp — a tipi and tents flanked by rows of trucks lining the road 75 kilometres east of Peace River, Alta. — is Woodland Cree First Nation’s latest effort to oppose Obsidian Energy’s expansion plans.

The camp is the latest development in an increasingly tense conflict between Woodland Cree and Obsidian after the operator was blamed for a string of earthquakes in the region.

The First Nation says it is owed meaningful consultation and final authority over what industrial development occurs on its traditional lands. Company officials say it has consulted with the WCFN and the Indigenous community has no such veto rights. 

The camp was established Sunday near the Harmon Valley South field in Peace River, immediately south of Woodland Cree First Nation — cutting off an access road to Obsidian lease sites. 

Protesters are now under orders to leave. Obsidian company officials were granted an injunction Monday in the Court of King’s Bench against the Woodland Cree First Nation and people occupying the camp.

Chief Isaac Laboucan-Avirom was formally served notice by a court bailiff who arrived at the camp the following morning. The court injunction prohibits protesters from intimidating workers and from blocking access to the drill sites. RCMP may be called in to enforce the order if the court determines that police assistance is needed.

As of Wednesday morning, around 80 people remained at the camp. RCMP were monitoring the site but not enforcing the court order. 

Laboucan-Avirom said the community will continue to assert their rights. The camp will remain until negotiations with Obsidian resume, he said. 

“We’re intending to stay,” Laboucan-Avirom told CBC News in an interview Tuesday evening. “This is our traditional land.”

Laboucan-Avirom said his members are concerned about the cumulative impacts on their traditional lands and the risk of additional industry-caused earthquakes if Obsidian’s drilling operations intensify.

“If they want to work in our territory, they’re going to have to do that work with respect for the people and the land,” he said.

The First Nation community has repeatedly called on the Calgary-based company to halt its expansion plans. WCFN initially raised concerns about the company’s activities on their territory four months ago. 

In February, the First Nation erected its first protest camp, urging Obsidian company officials to address a series of earthquakes in the region in 2022 and 2023. The Alberta Energy Regulator found that Obsidian had caused the seismic events by disposing of industrial wastewater underground.  

The protests had resolved but after talks between the company and First Nation broke down, and plans for an expansion ramped up, the new camp was established by band members.

Obsidian produces around 6,500 barrels of oil equivalent per day, or 20 per cent of its total production, from assets in the Peace River region, some of which are within Woodland Cree territory.

Obsidian recently told shareholders that it plans to increase production by 12 per cent this year and focus most of its drilling program on the Peace River region.

Laboucan-Avirom said the First Nation wants to work with industry but Obsidian has not complied with its legal obligations. The First Nation is seeking legal advice on next steps if Obsidian doesn’t engage in negotiations, he said.

“I’d rather work with industry and the provincial governments, but if they’re forcing me into a corner, I will have to [pursue] a legal challenge.” 

An environmental protection order issued by the AER in March, 2023 blamed the company’s operations for inducing a string of seismic events in the region and ordered the company to improve its monitoring and mitigation plans. 

Obsidian is appealing the environmental protection order and a review is pending. In a statement to CBC, company officials say operations continue to comply with all regulatory obligations.

“We have unfortunately reached a negotiating impasse with WCFN’s senior leadership,” Stephen Loukas, Obsidian’s president and chief executive officer said in a statement.

“Obsidian Energy has informed WCFN’s senior leadership that we cannot accept their unrealistic terms that amount to a monopolistic relationship.” 

Loukas said the company is open to meeting with WCFN leadership.  But regardless of the outcome,the company can pursue existing regulatory approvals to proceed with expansion in the region, he said. 

“WCFN does not have a veto right, only a requirement for consultation regarding development on traditional lands … We have employed the WCFN for services and consulted with them on a number of matters over the years, including agreeing to meet with them to discuss any environmental, health and safety concerns.” 

RCMP have described the camp as peaceful. In an interview, RCMP Cpl. Mathew Howell said police are hoping the protest will resolve before they’re called to enforce the order. 

Laboucan-Avirom is hopeful too that arrests can be avoided. 

“I’d rather get this resolved sooner than later,” he said. “But we will be out here as long as we have to.” 

https://www.cbc.ca/news/canada/edmonton/obsidian-alberta-woodland-cree-first-nation-protest-camp-1.7197627

Brittany Hobson, The Canadian Press

WINNIPEG — The trial of serial killer Jeremy Skibicki heard Thursday that police found physical evidence of the victims in his Winnipeg apartment, including jewelry, clothing, DNA and a bloodstained bathtub.

Const. Jan de Vries, who was part of the police search team, testified they found bloodstains in Skibicki’s bathroom belonging to one of the victims, Rebecca Contois.

Some stains were visible while others were found using a spray that makes stains fluorescent when used with a black light, he said.

“The bathtub was very fluorescent,” said de Vries. “So was the floor, the walls and on the exterior side of the door.”

He said the bloodstains found in the bathtub covered the entire area, which had likely been emptied and rinsed at some point.

Skibicki is charged with first-degree murder for the 2022 killings of Contois, Morgan Harris, Marcedes Myran and an unidentified woman Indigenous leaders have named Mashkode Bizhiki’ikwe, or Buffalo Woman.

He has confessed to the slayings, but his lawyers are arguing that he’s not criminally responsible due to mental illness.

The Crown said the killings were racially motivated, with Skibicki a self-proclaimed white supremacist and the four victims Indigenous.

Prosecutors said Skibicki preyed on the vulnerable women at homeless shelters, assaulted them, killed them and disposed of their bodies in garbage bins.

GRAPHIC WARNING: The following details may disturb some readers.

The partial remains of Contois were found in multiple dumpsters in Skibicki’s neighbourhood, as well as in a local landfill.

Crown prosecutor Renee Lagimodiere has told court Skibicki assaulted 24-year-old Contois during sex. He then choked her, smothered her with a pillow and dismembered her in the tub.

Images from surveillance video presented in court show a person emptying bags into a bin in the neighbourhood.

Court heard that when officers went to search the bin, it had already been emptied. This led police to section off an area at the Brady Road landfill, where they ultimately found the woman’s torso, said de Vries.

De Vries said that in Skibicki’s suite, police found a jacket and tuque belonging to Harris and Myran’s earrings and baseball cap. DNA belonging to both women was also found, as was Myran’s blood on the blade of a combat-style knife.

The remains of Harris and Myran are believed to be in a different landfill.

Investigators have said it’s not known where the remains of Buffalo Woman are located.

Skibicki told police he sold Buffalo Woman’s jacket online. Police later located the reversible Baby Phat jacket, and an unidentified woman’s DNA profile was found.

De Vries testified there have been substantial but unsuccessful efforts to identify that DNA.

Court heard DNA evidence from 16 females was found in the apartment and in a garbage bin in the area. Nine of those samples were unidentified.

Lagimodiere told reporters outside court that the Crown doesn’t believe at this time there are more victims in the case.

One identified DNA sample belonged to a missing woman. Ashlee Shingoose was last seen in downtown Winnipeg in March 2022.

Shingoose’s family told local media last year that they were asked to provide a DNA sample to police but it didn’t come back as a match to Buffalo Woman.

Police said in an email Thursday that Shingoose is still considered missing.

https://www.stalbertgazette.com/national-news/winnipeg-trial-hears-victims-clothing-dna-found-in-serial-killers-apartment-8719497