Canada's Misguided Land Claims Policy

By Bruce McIvor

The federal government, through its Ministerial Special Representative Douglas Eyford, is currently seeking comments on its new Interim Comprehensive Land Claims Policy. The Interim Policy sets out Canada’s position on negotiating with Indigenous peoples over their Aboriginal title and rights. Unfortunately, the new policy is based on the same misguided objectives which have plagued Canada’s approach to reconciliation for decades.

Colonization as Reconciliation

According to the federal government, the objective of its new land claims policy is to reconcile Indigenous peoples’ Aboriginal title and rights with the interests of non-Indigenous Canada. From the federal government’s perspective, reconciliation is about achieving “certainty” for “economic and resource development.”

The focus on reconciliation as a process for non-Indigenous people to exploit Indigenous peoples’ lands and resources is an example of what John Ralston Saul has recently described in The Comeback as the national narrative of colonialization. Rather than acknowledge Indigenous lands as being integral to the survival of Indigenous peoples as prosperous, self-sufficient societies, successive federal governments have viewed Indigenous lands from the perspective of the country’s southern, non-Indigenous society—as “a source of commodities, colonial territories that will make those of us in the south rich.” Canada’s new land claims policy perpetuates and reinforces the understanding of land claims agreements as mechanisms for removing Indigenous peoples from their lands so that the lands can be exploited by non-Indigenous people.

Extinguishment is not the Answer

Canada’s new land claims policy, like all the policies that have preceded it, is focused on the negotiation of treaties that extinguish Indigenous peoples’ interests in their lands in exchange for a lesser interest over a fraction of their territory.

Reconciliation does not require extinguishment. The Supreme Court in Tsilhqot’in acknowledged that the reconciliation of Indigenous and non-Indigenous interests may be achieved through negotiating agreements that recognize, rather than extinguish, Aboriginal title.

Canada’s Flawed Approach

Rather than negotiate agreements that recognize Aboriginal title, Canada has decided to continue with a land claims policy that is incompatible with the fundamental principles of Aboriginal title. As the Court explained in Tsilhqot’in, Aboriginal title is a collective title held for the benefit of present and future generations of Indigenous people. Both the use of Aboriginal title lands by Indigenous peoples and the possible infringement of Aboriginal title by the Crown are subject to this inherent limit. Canada’s objective of achieving ‘certainty’ through extinguishment is anathema to the very basis for and purpose of Aboriginal title.

A policy of extinguishment is also inconsistent with the federal government’s fiduciary responsibilities to Indigenous peoples. The Court in Tsilhqot’in affirmed that when dealing with Aboriginal title, Canada must respect its fiduciary responsibilities to Indigenous peoples. At its core, this means ensuring that the federal government’s actions are consistent with the best interests of Indigenous peoples. A land claims policy intended to deprive future generations of Indigenous people of the use and benefit of their traditional lands by extinguishing Aboriginal title is incompatible with Canada’s fiduciary obligations.

Reconciliation Based on Recognition

The way out of the narrative of marginalization of Indigenous peoples and the exploitation of their lands is for Canada to adopt a land claims policy consistent with the principles underlying the United Nations Declaration on the Rights of Indigenous Peoples and the Supreme Court’s Tsilhqot’in decision.

At their heart the UNDRIP and Tsilhqot’in are vehicles for Indigenous peoples to prosper as distinctive societies by regaining control of their traditional lands. They are predicated on the recognition of Indigenous peoples’ historical and legal interests in their lands, their right to decide how their lands are developed (or not developed) and their right to benefit from their lands.

For decades the federal government has justified its land claims policy of extinguishment by arguing that we really do not know what Aboriginal title means or that it even exists. Tsilhqot’in and the UNDRIP have nullified these self-serving excuses for depriving present and future generations of Indigenous people of their lands. It is long past time that Canada jettisoned its colonization objectives and adopted a land claims policy intended to achieve reconciliation through agreements that lead to Indigenous peoples controlling and benefiting from their lands.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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