Government's Achilles heel shows in court

Recent court rulings that include the Kapyong decision and a ruling that found the government is responsible for the Métis and non-status Indians underline the fact that the federal government has a losing record on the aboriginal front that is only matched by the team that continually loses to the Harlem Globetrotters.

The Kapyong Barracks ruling found the federal government failed to adequately consult First Nations when it tried to sell the abandoned military base in the heart of Winnipeg.

It's a ruling the federal government is considering appealing.

The government should carefully consider its options, especially in light of all the decisions that have gone to First Nations.

Bill Gallagher's book, Resource Rulers, looks at the impressive number of decisions in aboriginals' favour. At publication, the number stood at 150 in favour of First Nations.

A quick trip to Gallagher's blog reveals he considers the Kapyong decision win number 171 for the First Nations over the federal government.

Gallagher should know a thing or two about resource development law and the duty to consult because, as a lawyer, he worked for the feds in negotiating treaty land entitlement back in the 1990s.

He's been following cases across the country for years.

"First Nations have already won on the duty to consult in the first round, and the sale has been suspended so that more consultations can be done so that the Crown can fulfil its duty to consult again," Gallagher said. "The first round of lawyers said they didn't have a duty to consult. Then in the alternative, they tried saying that if they did have the duty to consult, then that's what they did."

The judge found that incredible, and his words were, in effect, saying he couldn't take that argument seriously.

Gallagher pointed out that there are two rulings on this issue now, and he doubts the decision will be different with another appeal.

He thinks this decision reflects that the situation is "too lawyered up."

"It's just a matter of realizing that First Nations have been greatly empowered by their winning streak," said Gallagher.

He also pointed out that a similar situation, in the run-up to the last Winter Olympics, held in B.C., occurred in when B.C. First Nations won an injunction blocking the sale of two major buildings by the Canada Lands Company.

When I mentioned to him that former Stephen Harper adviser Tom Flanagan, in a mainstream article, had posited that while there is a duty to consult it does not give First Nations a veto in resource projects, Gallagher agreed -- to a point.

"I basically say, as a lawyer, that while there is a point of law that says they don't have a legal veto, then they certainly have a de facto one. I maintain that First Nations have demonstrated the ability to thwart, block and impede resource projects that they are not onside with," Gallagher said.

However, in the interview I noticed that Gallagher seems, by nature, to be a cautious man.

He refused to speculate if there is a duty to consult in other areas outside resource law -- such as a duty to consult on legislation impacting First Nations.

For example, there is the recent Federal Court ruling that Métis and non-status Indians are the responsibility of the federal government.

And it's not going to stop there.

Shawn Atleo, in an interview I conducted in late December, indicated First Nations across the country were getting ready to start legal challenges to recently passed legislation because the federal government failed in their duty to consult.

And I believe that can be seen with Mikisew Cree and the Frog Lake First Nation, both from Alberta, challenging the federal omnibus bill in court.

The federal government is going to have to wake up to the fact that legislation affecting First Nations can't be passed unilaterally.

Until that time, there's going to be a lot of wasted time, energy and dollars.

Trevor Greyeyes is a freelance

writer at Peguis First Nation.

Republished from the Winnipeg Free Press print edition January 14, 2013 A10