Dealing with Sask. First Act one of treaty commissioner's top priorities for 2023

Last year, Treaty Commissioner of Saskatchewan Mary Culbertson was critical of the proposed Saskatchewan First Act and now, in 2023, she is questioning the basis, accuracy and respect of treaty rights of the bill.

The provincial government introduced the Saskatchewan First Act last November, stating the act would assert exclusive provincial jurisdiction over natural resources in Saskatchewan.

Indigenous advocates have said the act threatens inherent and treaty rights of Indigenous people. The Federation of Sovereign Indigenous Nations, which represents 74 First Nations in Saskatchewan, has called for blockades while it organizes legal action against the provincial government.

Culbertson said she believes the Saskatchewan First Act does offend inherent and treaty rights.

"Just because a government says it doesn't infringe on rights, doesn't necessarily mean that's the facts or truth," she said. 

"Who do they have stating it's not going to infringe on [treaty] rights? Do they have policy advisors and experts who actively exercise treaty and inherent rights to know what an offence to those rights are?"

In a statement announcing the bill, the provincial government stated: "The Act amends the Constitution of Saskatchewan to clearly confirm Saskatchewan's sovereign autonomy and asserts Saskatchewan's exclusive legislative jurisdiction under the Constitution of Canada over a number of areas."

Culbertson said a document called the "Constitution of Saskatchewan" does not exist.

Joyce Green, a professor emerita at the University of Regina in political science, said, "Really there isn't such a thing as an independent constitution; the provinces and federal governments are created and defined by the British North America Act of 1867, now renamed the Constitution Act of 1876."

The preamble of the Saskatchewan First Act states Saskatchewan attained full status and autonomy over Crown lands and natural resources through the Natural Resources Transfer Act (NRTA) of 1930, between the federal government and the Prairie provinces.

Culbertson said the NRTA has been at odds with treaty rights since its inception.

"That's my opinion as a treaty commissioner into what the treaties were supposed to be, the intent of them, the spirit and intent of them, and negotiations around the treaties," she said,

"The NRTA is something that should not have happened."

Green said the NRTA "certainly" conflicts with treaty rights.

"If you look at Indigenous understanding of especially the treaties that pertain in Saskatchewan, the agreement was to share land to the depth of a plough," she said.

In a statement, Saskatchewan Justice Minister Bronwyn Eyre said the Saskatchewan First Act is not altering the Constitution, as the province already has jurisdiction over natural resources.

"The Saskatchewan First Act is not a violation of Duty to Consult with our First Nations partners," the statement said.

"The Act [certainly] doesn't purport to challenge treaties."

"The fact that the provinces have exclusive jurisdiction over natural resources is not our language. It's in the Constitution, under the division of powers."

The statement said if the FSIN and other organizations disagree with the division of powers, which is "the same Constitution that also protects treaty rights," it should be addressed on a federal level and undergo a constitutional amendment process.

Culbertson said this assertion from the provincial government that the bill does not go against treaty rights is not surprising.

"You can see it through the courts, that litigation against treaty is just something this province likes to do," she said.

After publication, the Government of Saskatchewan contacted CBC News stating its position that the NRTA does not violate treaty rights.