BRIEF OF THE HURON-WENDAT NATION FEDERAL REVIEW OF ENVIRONMENTAL AND REGULATORY PROCESSES NAVIGATION PROTECTION ACT

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1 Huron-Wendat Nation Office of the Nionwentsïo BRIEF OF THE HURON-WENDAT NATION FEDERAL REVIEW OF ENVIRONMENTAL AND REGULATORY PROCESSES NAVIGATION PROTECTION ACT Submitted to: THE STANDING COMMITTEE ON TRANSPORT, INFRASTRUCTURE AND COMMUNITIES By the OFFICE OF THE NIONWENTSÏO 250 Place Chef Michel-Laveau December 7, 2016 Wendake, Quebec G0A 4V0

2 Contact us: Huron-Wendat Nation Council 255 Place Chef Michel-Laveau Wendake, Quebec, Canada G0A 4V0 Telephone: Toll free number: Fax: Website: 2

3 Context This brief from the Huron-Wendat Nation is submitted without prejudice to the Nation s ancestral and territorial rights protected by the Huron-British Treaty of 1760, or other related interests applicable to its traditional territory, the Nionwentsïo. It does not affect in any way the positions taken by the Nation or its official representatives in any and all legal proceedings or discussion processes or negotiations. Introduction In the context of the federal review of environmental and regulatory processes undertaken by the Government of Canada in June 2016, several elements are being looked at. Among these are the examination of environmental assessment processes, the modernization of the National Energy Board, and lastly, the integration of modern protection measures into the Fisheries Act and the Navigation Protection Act, including restoring protection measures eliminated in two omnibus bills in This brief only focuses on the. In this process, however, the participation of the Huron-Wendat Nation does not constitute a consultation as such with regard to the changes being considered to the legislation governing navigable waters. Given the extremely tight deadlines that were imposed on us all through this process and the fact that no amendments or specific measures were presented in advance to the Nation by the Government of Canada, our comments and recommendations in this regard remain general. Moreover, unless the Nation decides so expressly, no other government or organization, aboriginal or not, may speak or make decisions on its behalf. This brief is divided into two parts. The first presents a picture of the Huron-Wendat Nation. The second summarizes the arguments supporting our position, and lists the main concerns and recommendations of the Nation regarding the restoration of the protection measures that were eliminated, and the integration of modern protection measures into the. 3

4 PART I PRESENTATION AND HISTORY OF THE HURON-WENDAT NATION The Huron-Wendat Nation has approximately 4,000 members and almost all of them are Frenchspeaking, which makes it the only francophone community in the Iroquoian linguistic family. Almost all of the Huron-Wendat members reside in Wendake, the only Huron-Wendat reserve in Canada. According to the Huron-Wendat oral tradition, the customary territory of the Huron-Wendat Nation, the Nionwentsïo, which means our magnificent land in the Huron-Wendat language, lies along the north and south shores of the St. Lawrence River, between the Saint-Maurice River and the Saguenay River. This is very special territory for the Huron-Wendat, and is described as an exceptional hunting and fishing area, a major travel axis, as well as a centre of trade and diplomatic relationships, full of abundant resources and infinite wealth. The members of our Nation have lived and moved about there since time immemorial. The St. Lawrence River, the Great River according to the Huron-Wendat oral tradition, which is situated at the very core of the Nionwentsïo, is the highway used by the Huron-Wendat since time immemorial to reach the territories where they traditionally practised and continue to practise their traditional activities of hunting, fishing, and trade. The Great River thus occupies a central place in the identity and culture of our Nation, who is its guardian and protector. The Huron-British Treaty of 1760 ( Treaty ) was concluded more than 250 years ago at the time of the Conquest and at the end of the Seven Years War. All through this conflict, the French and the English competed to find Indian allies and did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. The Treaty sealed the treaty partnership between the Crown and our Nation, guaranteeing binding obligations of respect and protection, among others. The Supreme Court of Canada, the Court of Appeal of Quebec and the Federal Court all recognized and confirmed the validity, constitutional protection and territorial application of the Treaty. The Supreme Court of Canada in the Sioui ruling confirmed that for a freedom to have real value and meaning, it must be possible to exercise it somewhere and that somewhere is over the entire territory frequented by the Hurons at the time. The boundaries of the Nionwentsïo were determined on the basis of the results of extensive historical and anthropological research subsequently conducted by our Nation. Canada, on the basis of expert assessments conducted by its expert, among others, confirmed that our Nation has solid treaty rights over a large part of the Nionwentsïo. The territory is at the heart of the Huron-Wendat identity. The protection of the territory and the privileged link the Huron-Wendat have with it is fundamental to ensuring the maintenance of the Huron-Wendat customs and traditions and their transmission to future generations. The Wendake reserve is located in the administrative region of the Quebec national capital and is within the boundaries of the City of Quebec, which makes the Huron-Wendat Nation one of the most urbanized aboriginal nations in Quebec. Wendake covers 4.36 km 2 and is bounded by the magnificent Saint-Charles River whose Huron-Wendat name is Akiawenrahk, which means trout river. The 4

5 Huron-Wendat Nation recently acquired more habitable territory, which was converted into reserve land. Because of its geographical location, Wendake is an important crossroads that welcomes many members of the first nations of Quebec, as well as non-aboriginals. They come to study, work or live here. Every year, there are thousands of visitors from everywhere in the world who are moved and impressed by the rich culture of the Huron-Wendat Nation, either because of the natural area that is preserved on the outskirts of Quebec, the warm welcome of the Huron-Wendat, the traditional gastronomy, or the treasures they find in the handycraft shops where tradition often meets modernity. Wendake s economy is flourishing and rests on a wide variety of services, such as the manufacturing sector, and the hotel, tourist and cultural sectors; it provides work to many Huron-Wendat as well as to several hundred members of other aboriginal nations, and to non-aboriginal persons from the Quebec region. Traditional Huron-Wendat items such as canoes, snowshoes and moccasins enjoy international acclaim. The entrepreneurial nature of the Huron-Wendat is one of their strong characteristics. Trade is rooted in the long-ago origins of the Nation and is still an integral part of the Huron-Wendat culture. The Huron-Wendat Nation has its own institutions through which its culture and traditions are expressed and valued, and this is passed on from generation to generation. The Council of the Huron-Wendat Nation is the governance organization of the Nation and it makes the political decisions. It acts as the guardian and official protector of the rights and territory of the Nation and is composed of and directed by one Grand Chief and eight family chiefs. Its jurisdiction mostly involves its relations with the other levels of government, federal, provincial and municipal, as well as first nations organizations, the affirmation and defence of the rights of the Huron-Wendat, the territorial management of the Nionwentsïo and the resources in it, public administration, heritage and culture, health and social services, public works, housing, economic development, education and public safety. It is interesting to note that Wendake is often highly sought after for various diplomatic meetings, among other reasons because it contains several organizations dedicated to the defence and protection of aboriginal rights. All in all, Huron-Wendat customs are an integral part of every aspect of the life and culture of the Huron-Wendat and have always been omnipresent in all of their areas of activity. They are manifested, both historically and in the present, in the way the Huron-Wendat Nation governs itself, expresses its diplomacy and concludes alliances, practises its spirituality and cultural activities, does trade, develops economically and acts as a business partner, in the importance it gives to its language and the transmission of its traditional knowledge, and finally in its sacred relationship with Mother Earth, nature and the precious resources therein. 5

6 PART II ARGUMENT AND RECOMMENDATIONS SUPPORTING THE HURON-WENDAT NATION POSITION The purpose of this section is to share the Huron-Wendat Nation s comments and concerns regarding the current. First, it must be said that until 2014, it was possible to impede the public s right to navigation, and this applied to all Canadian navigable waters, since the objective of the act was to ensure a balance between that public right to navigation and the need to build bridges or dams on navigable waters. Being able to do that without first consulting first nations did not respect the ancestral rights of the Huron-Wendat Nation, which are protected by treaty, notably as concerns access to the territory and free navigation. This major gap in the law was overcome in April 2014 through the inclusion of a schedule to the Navigation protection Act listing the 164 navigable waterways in Canada for which the authorization of the Minister of Transport is required for the construction or installation of a work which may substantially interfere with navigation (section 5). To determine the existence of such a risk, the minister may take several relevant factors into account, such as current or anticipated navigation on those waters, as described in subsection 5(4) of the act. The Huron-Wendat Nation considers that a specific mention of the use of the waters and territory of the first nations should be included and constitute an essential factor to be considered when assessing any proposal submitted to the department. The historical and contemporary use made of the Canadian territory should not be neglected in the factors taken into account by the minister when determining whether to allow anything to be constructed over a navigable waterway. More importantly, the Huron-Wendat Nation is concerned by the small number of navigable waterways mentioned in the schedule and protected under the law. In fact, the Nionwentsïo contains several of the listed waterways that are to be found in the schedule to the act, such as the St. Lawrence River, the Saint-Maurice and Saguenay rivers, which as mentioned above, are historical locations of great importance to the Nation, but also other navigable waterways, including rivers and lakes, not listed in the act. A large number of these navigable waterways are thus excluded from the protection of the law. Here are a few non-exhaustive examples of navigable waterways in the Nionwentsïo that are not mentioned in the schedule to the, but are considered important circulation axes that allow us to have access to various parts of our territory: the Batiscan, Sainte-Anne, Jacques-Cartier, Saint-Charles, Etchemin, Pikauba and Métabetchouan rivers. In addition, since it is unlikely that the navigable waterways not listed in the schedule to the act will be the object of any decision or government measure to protect them under this legislation, it is possible that no consultation or accommodation of our Nation is planned for projects considered by private promoters involving lakes and rivers not listed in the act, even if they are likely to be prejudicial to our ancestral and territorial Treaty-protected rights. Although both the action and inaction of the Government of Canada remain subject to review by the courts, such legislative gaps run counter to the obligations of the Crown to our Nation, as well as to the reconciliation objective expressed in section 35 of the Constitution Act,

7 Indeed, the rights, activities and interests of the members of the Nation enjoy constitutional protection under section 35 of the Constitution Act of Consequently, the ancestral and territorial rights of the Nation, such as the peaceful enjoyment of the Nionwentsïo, and the free exercise of its customs, are constitutionally protected throughout the Nionwentsïo under the Huron-British Treaty of 1760, including on all of the navigable waterways therein. We would also mention that any legislation directly or indirectly affecting the rights of aboriginal peoples must respect Canada s international obligations in that regard. Section 25 of the United Nations Declaration on the Rights of Indigenous Peoples (DRIPS) states that Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources, and to uphold their responsibilities to future generations in this regard. In addition, paragraphs 2 and 3 of article 32 of the DRIPS require that states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources and that they shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Because of its crucial relationship with its territory and resources and its specific way of life, the Huron-Wendat Nation has a special relationship with water, and by the same token with navigation, which is a central element of its occupation and use of the territory. This unique relationship the Huron-Wendat Nation has with water, the habitat of fish, one of the main means of subsistence of the Nation, must be protected. Any barrier to navigation indirectly represents an obstacle to the ancestral right of the Huron-Wendat Nation to meet the needs of its members through the practice of its fishing rights. In order to diminish the potential impacts that could be caused by such a situation, the Huron-Wendat Nation suggests that it increase its participation, not only in consultation and accommodation processes undertaken by the Crown, but also that the Nation be involved upstream and downstream in the various decision-making processes that will follow, in order that their traditional and contemporary knowledge be taken into account in the development of a much more complete navigable waterways schedule, particularly in connection with its treaty-protected ancestral and territorial rights. 7

8 Conclusion Navigable waterways represent an essential component at the very core of our rights, activities and interests, and have from time immemorial. That is why the Huron-Wendat Nation is concerned by any law or regulation that may affect its treaty territory, the Nionwentsïo, and the navigable waters therein. The importance of its access to the territory and its resources in order to practise its traditional activities is in fact an integral part of the rights recognized by Canadian jurisprudence, including that of the Supreme Court of Canada, and it is notably supported by the right of first nations to be consulted and accommodated with regard to projects affecting navigable waterways. In summary, we ask that the be amended in order to formally include: the complete protection of all of the waterways, lakes and navigable rivers and streams in our traditional territory the Nionwentsïo, protected by the Huron-British Treaty of 1760; the explicit recognition of the ancestral and treaty rights of aboriginal peoples, as well as their jurisdiction over the navigable waters in their traditional territory; satisfactory consultation and accommodation measures for our Nation in connection with any measure or decision that may involve a barrier over navigable waterways in the Nionwentsïo; and measures to ensure and increase the participation of first nations in the various decision-making processes involved in the protection of navigable waters. 8