Sask. 'needs improvement' on jurisdictional disputes: U of S lecturer

Jurisdictional disputes involving multiple levels of government are wide-ranging, costly and often lead to major changes.

But Federation of Sovereign Indigenous Nations (FSIN) Chief Bobby Cameron says they're felt the most at the community level. 

"It's a matter of life or death, it really is," Cameron said. 

"You're damaging that individual youth or person by saying 'that's not our responsibility,' or 'that's your responsibility. It's a federal jurisdiction or that's a provincial jurisdiction.' No. It's not. It's a human jurisdiction."

University of Saskatchewan lecturer Kathy Walker said it's often society's most vulnerable people — women and children — who are the victims in jurisdictional disputes. 

She said she's seen a pattern of Saskatchewan intervening and claiming jurisdiction when there's benefits for the province, while absolving itself when claiming jurisdiction would require it to provide services to Indigenous people here.

"I think the primary motivation behind it is that the province does not want to recognize the inherent Indigenous and treaty rights of Indigenous people," Walker said.

"[The province] kind of manoeuvers just to see what's in its best interest on a political basis, kind of on an issue-by-issue basis."

Walker said that although the inherent and treaty rights of Indigenous people in Saskatchewan and Canada are constitutionally protected, and case law has addressed the issue numerous times, she's seen the province take matters to court time and time again.

She said overall, the province needs improvement when it comes to engaging in jurisdictional disputes.

Past and present disputes

The introduction in 2018 of the Cannabis Act, which gave provinces responsibility over sales and distribution including where and how cannabis is sold, sparked some manoeuvering toward a jurisdictional dispute.

Muscowpetung Saulteaux Nation opened a cannabis store on-reserve weeks after legalization, saying it was asserting its treaty right to health. 

Band membership voted on a community-created cannabis act and opened the shop without a permit from the province.

Then-justice minister Don Morgan called for the store to be shut down and said it was operating outside of the provincial cannabis regulations.

Last year, Morgan called on the federal government to "take steps" to close down cannabis stores on-reserve.

Muscowpetung took the province to court over the matter. A request to the band for comment and update on the court situation did not get a response as of publication of this story.

Cameron said the onset of COVID-19 also sparked a new round of discussion around jurisdiction.

He said First Nations people were left out of the discussion when the federal government allocated money directly to the provinces to "reopen the economy."

"First Nations are a big part of that economy and when the number came, and the comments that followed was this: We're going to give, or allocate $14 billion to the premiers of Canada to reopen the economy," Cameron said. 

"Why wouldn't [the government] say First Nations are part of this, or here First Nations, this will be your portion. It makes no sense to me."

Cameron said the provincial and federal governments have an obligation through treaty clauses that address pestilence and famine, and that while both provided funds to First Nation communities for COVID-19, it wasn't enough to make communities or leaders feel comfortable for their future as the country works toward a post-pandemic world.

He said that things like vaccines, personal protective equipment and medical services will be in demand — needs he said are magnified in north and remote communities. 

Jordan's Principle is one example of change that stemmed from — and directly addressed — jurisdictional disputes on a national scale. 

The crux of Jordan's Principle is that when a patient needs medical treatment, that treatment should be provided immediately and any issues over which level of government should pay for that treatment must be resolved after the patient has been taken care of. 

It was adopted by the House of Commons in 2007.

Jordan's Principle is named after Jordan River Anderson, a four-year-old boy with complex needs who died in hospital in 2005 after a lengthy court battle between the federal government and Manitoba over home-care costs. 

Anderson was from Norway House Cree Nation in Manitoba and also had ties to Saskatchewan through his mother and the Peter Ballantyne Cree Nation. 

In 1993, Saskatchewan attempted to assert its jurisdiction over gaming and raided the Bear Claw Casino in White Bear, which opened without provincial approval.

The subsequent court case and actions taken by White Bear First Nation eventually led to a gaming framework agreement between the province and First Nations communities in Saskatchewan.

Federal change needed, too

Federal legislation that would protect Indigenous and treaty rights would be a good starting point, Walker said, and would create a more equitable playing field and better serve the needs of Indigenous communities

Meanwhile, she said if the provincial government's mentality to jurisdictional disputes were to change, people would see more constructive dialogue and partnerships between every level of government, benefitting everyone. 

"They can start with actually taking the United Declaration on the Rights of Indigenous People seriously like other jurisdictions have done, such as British Columbia," Walker said. 

Constantly trying to reinvent the wheel through every jurisdictional challenge that comes up leads to wasted time and energy, she said.

Cameron said the issue comes down to communication. 

He said the best solutions come directly from communities and that all it takes is a phone call to get those discussions going.