It’s taken me a while to address last month’s Supreme Court of Canada decision that limits individual rights to protest resource exploitation. It’s a tough one as it looked at not only the duty to consult with Aboriginal Peoples before making decisions affecting treaty rights or agreements, but how and when Aboriginal or treaty rights can be raised. In the past collective or communal rights was part and parcel of every individual within a specific nation. Since May 9, 2013, that is no longer the case.

The ruling upheld communal but individually exercised Aboriginal and treaty rights to hunting, fishing, trapping or gathering. Then, however, the ability to exercise of rights evolves. The Behn decision says individuals from a First Nation cannot raise Aboriginal or treaty rights to challenge regulatory rights granted to a commercial party without authority from their First Nations government.

Basically, when the government grants a license or other rights to develop natural resources you can’t put up blockades or interfere with the company – unless you have backing from your band council. Aboriginal Peoples are now limited to court actions. Given the “vast amounts” of cash reserves most Aboriginal communities have available for lawyers, we can expect little results that the communities affected will approve in a communal manner. In a lot of cases, most communities will not be consulted as most permit processes are not widely publicized. In any case, most Aboriginal communities lack the resources to keep abreast or contest such processes.

Many natural-resource exploitation companies must be celebrating this decision. They can use the police to enforce their desires to make a profit. This is being sold as part of mutual good faith in Crown-Aboriginal relations. This decision radically limits my (and other Aboriginals’) ability to protect the communal rights that ensure our way of life. Now the power is given to those who have “authority” from the community to do so.

In many cases this may be confusing. Just look at Barriere Lake. The community is split with two competing band councils. One is recognized by Ottawa and the other isn’t. Who decides on the authority? Obviously a non-Aboriginal federal or provincial government will say they have the right.

Looking back a few years, Cree leadership at first said all that was needed to sign a quasi-constitutional agreement was consent from the chiefs of each community. An argument was made that since this agreement was something that would affect Cree collective rights it should be decided by all the Cree and a referendum was held. This Supreme Court decision would hinder this exercise in democracy, as there would no longer be any reason to consult in a meaningful way. Only those who can demonstrate they speak for the nation are required to be consulted. You don’t even have to involve the whole community if you have a band council in your pocket.

The Behn case involved a forestry company. How often are the Aboriginal people who are affected by forestry permits even aware of the request for these permits? The end result of this Supreme Court decision is that it is now open season on natural-resource exploitation involving Aboriginal lands. It should be interesting to see the fallout. As Paul Whitcomb said, “Deny a man the right to defend himself and you deny him all other rights.”