Have We Just Witnessed the End of the Modern Treaty Process?

Given last weekend’s no vote to the proposed Lheidli T'enneh treaty in British Columbia (the second time it has been rejected by membership) I thought it an opportune moment to republish (in slightly revised form) my critique of Canada’s comprehensive claims policy and, by extension, the BC treaty process. I've also added a few further thoughts on this important issue.

I first published this essay in 2014 in response to the Eyford report on the federal government’s Interim Comprehensive Claims Policy.

This piece, and much more of my writing, can be found in my collection of essays entitled First Peoples Law: Essays in Canadian Law and Decolonization.

Colonization as Reconciliation

According to the federal government, the objective of its 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 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 and provincial 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 comprehensive land claims policy, and British Columbia's treaty process, 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 comprehensive claims policy 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. In 2014 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 (and BC's) Flawed Approach

Canada’s and British Columbia's policies are 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 and BC'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 Crown's fiduciary responsibilities to Indigenous peoples. The Court in Tsilhqot’in affirmed that when dealing with Aboriginal title, the Crown 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 and the provinces 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 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 and the provinces jettisoned their 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.

Further Thoughts

A few further thoughts since I published this piece.

The one consistent response I get when I ask Indigenous people why they are considering entering into a treaty based on Canada’s flawed policy is that they want to get out from under the Indian Act--fair enough. But, it’s a sad statement on the pernicious power of the Indian Act that Indigenous people will consider surrendering their Aboriginal title and rights to rid themselves of it.

I've never understood how it is acceptable that a treaty vote, a decision that means that those voting as well as their descendants can never again rely on their unextinguished Aboriginal title and rights, can be conducted on a 50 percent plus one basis.

In 1998 in the Reference re Secession of Quebec decision the Supreme Court rejected the argument that fundamental constitutional change can occur based on a simple majority vote. The Court noted that "there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection." Why doesn't the same principle apply when Indigenous people are asked to surrender their Aboriginal title and rights?

Finally, it is time we rethink the use of the word ‘treaty’. Unfortunately, because of the federal and provincial governments' policies of extinguishment, treaty has come to mean the surrender of Aboriginal title and rights--but it doesn’t have to. There is a long history of treaties in Canada based on peace, friendship, respect and recognition. We need to get back to that understanding of treaty.

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.