The 1986 Federal Comprehensive Land Claims Policy was last updated in 1993, before most of the significant judicial decisions on s. 35 of the Constitution Act, 1982. One might have expected, given the timing of the federal government’s release of its interim Comprehensive Land Claims Policy, entitled Renewing the Comprehensive Lands Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights (September 2014) (the “Interim Policy”), that this policy would be responsive to the Supreme Court of Canada’s decision in Tsilhqot’in, and would include a commitment to new mandates reflective of the rights and roles of Indigenous peoples and governments in the Canadian federation.
How the Interim Policy Compares to Tsilhqot’in
A review of the Interim Policy reveals that it is not based on recognition of the extent and content of Indigenous Peoples’ Aboriginal title as clarified by Tsilhqot’in, or of Indigenous peoples’ governance rights. Further, Canada continues to seek certainty largely through a de facto extinguishment of Aboriginal title and rights, rather than to seek co-existence based on recognition of Indigenous governance and title and reconciliation.
Following Tsilhqot’in, it is clear that the Crown’s rights to lands and resources in British Columbia and other areas of the country where Aboriginal title remains unextinguished are quite limited. While the courts have distinguished between the “pre-proof” and “post-proof” stage, the reality is that most if not all Indigenous peoples could prove Aboriginal title to their territories, and certainly to areas larger than those that have been set aside as “settlement lands” under modern treaties. Treaties are meant to be an alternative to title litigation, and to be effective in that regard it is time for the Crown to recognize this reality and negotiate treaties on this basis.
The key elements and principles of the Interim Policy, which set out the federal government’s current position, are as follows:
- Treaties achieve certainty by setting out “precise” rights. Certainty is central to the purpose of treaty negotiations. While not framed in terms of “extinguishment”, Aboriginal rights “continue” in the abstract; they generally will not be exercisable. Instead, treaties will clearly identify the geographic area where treaty rights are exercisable, and clearly define the terms by which treaty beneficiaries have access to wildlife resources. Crown laws in relation to hunting, fishing and trapping will apply.
- The Interim Policy provides that Indigenous peoples who sign treaties will have secure title to treaty settlement lands, and will be able to fully realize the economic potential of such lands. This suggests that outside of settlement lands, Indigenous peoples might be excluded from the economic benefits. If current formulas for determining how much land the Crown is willing to agree to as settlement lands continue, much of the economic rights held by Indigenous peoples to their lands and resources would be expropriated through treaty.
- Self-government provisions will set out Indigenous governments’ jurisdiction over treaty settlement lands and their citizens and provide clarity with respect to the application of Aboriginal and Crown laws on the settlement lands. There is no provision for the operation of Indigenous laws outside of settlement lands.
- Treaty signatories may have the subsurface rights on some treaty settlement lands and some Crown lands.
- Canada is prepared to negotiate resource revenue sharing with respect to natural resources over which the federal government has responsibility, but the Interim Policy is based on the premise that it is the Crown who has the right (in the absence of treaty) to derive such revenues. Canada would negotiate providing a share of federal royalties in settlement areas. Further, capital transfer amounts may be reduced in accordance with arrangements concerning resource revenue sharing, and resource revenues will be subject to taxation.
This is not a shift in policy. These are the same essential principles that the Crown has applied to treaty negotiations based on its now rejected “small spots” theory and position that it has a beneficial interest in Aboriginal title lands and the right to manage those lands to the exclusion of Indigenous peoples and their laws.
According to the Interim Policy, Canada will contemplate forms of agreements other than comprehensive treaties or agreements in areas of federal jurisdiction (e.g., non-treaty arrangements, contracts, legislation, memoranda of understanding and consultation and accommodation processes). Comprehensive treaty negotiations in British Columbia will proceed under the British Columbia Treaty Process. The honour of the Crown demands that the Crown (federal and provincial) be open to alternative paths towards reconciliation that create space for the operation of Indigenous governance over land and resources and fully and honestly recognize and reconcile Indigenous peoples’ interests in the lands and resources with the interests of the Crown and Canadians in general. British Columbia has thus far not indicated whether it will be revisiting its policies with respect to treaty negotiation post-Tsilhqot’in. For example, will the Crown provide for more extensive settlement lands to reflect the fact that without treaty, the Crown does not have the beneficial interest to, and thus the right to benefit from, much of British Columbia? Is there any willingness on the Crown’s part to negotiate in good faith the co-existence of legal systems and laws? Will the Crown provide compensation for past damages and infringements?
Change is Overdue
Canada has stated that the Interim Policy is a starting point for dialogue and the basis on which it will seek input from Indigenous peoples, stakeholders and interested parties, over the Fall of 2014. Ministerial Special Representative Douglas Eyford is tasked with engaging with First Nations over the Fall. Given the gap between the Interim Policy and the law, more time may be necessary for this process. In order for there to be a real incentive for Indigenous peoples to engage in land claim negotiations with the Crown, Crown mandates will need to shift. Now is the time for Canada (and British Columbia) to adopt a policy grounded in Tsilhqot’in and the United Nations Declaration on the Rights of Indigenous Peoples.