The Panel on The Meaning of Aboriginal Title

Two Visions of Aboriginal Title and Reconciliation

James Tully

Introduction

I would like to acknowledge the Songhees and Coast Salish peoples, the Chiefs present from throughout British Columbia, the organisers and the sponsors for making this event possible.

There is now fairly broad public support for the project of dismantling the colonial relationship of non-Aboriginal Canadians over Aboriginal peoples that has been administered through the Indian Act for over a century. As the Minister of Aboriginal Affairs, Gordon Wilson, stated this morning, we need to rid ourselves of this colonial legacy and to work towards a reconciliation between Aboriginal and non-Aboriginal peoples. He also went on to suggest that reconciliation should consist in the recognition of Aboriginal title to land and to an inherent right of self-government, and that the specific form of recognition of land title and self-government appropriate to each First Nation should be worked out through treaty negotiations. This general statement accords the stated aims of the modern treaty process in British Columbia, the recommendations of the Canadian Royal Commission on Aboriginal Peoples (1996), the Gathering Strength initiative of the federal government (1997), the direction of a number of recent Supreme Court decisions, especially Delgamuukw v. British Columbia (1997), the statements of many First Nations’ leaders and spokespersons, and the views of a majority of British Columbians expressed in recent polls.

However, as can be seen from the list in the previous sentence, there are several different visions of the meaning of reconciliation by means of the recognition of Aboriginal land title, the inherent right of self-government and specific treaty negotiations. The present situation might be described as a conflict over the meaning of this process of reconciliation and its key terms (Aboriginal title, self-government and treaty negotiations), with Melvin Smith’s minimalist vision in Our Home or Native Land? at one end of the spectrum and the claims of Aboriginal sovereignty at the other. In this brief presentation, I would like to compare and contrast two visions of the process of reconciliation that fall somewhere between these two extremes: the vision in Delgamuukw and an alternative Aboriginal vision.

According to Satsan (Herb George), what is needed now, one year after Delgamuukw, is a clear statement of an alternative vision of aboriginal title, self-government and treaty-making from an Aboriginal perspective. For genuine reconciliation to occur, this Aboriginal vision must be, Satsan went on to suggest, (1) respected as equal in status to the vision of the Crown in Delgamuukw, (2) based in the traditions and practices of indigenous communities, governments, land usage and forms of treaty-making, (3) the vision on the basis of which Aboriginal people enter into treaty negotiations, and (4) a vision that all Canadians can understand and support - one that ends the colonial dictatorship of the Indian Act and treats Aboriginal and non-Aboriginal peoples as free, equal and self-governing.

Many speakers and discussants have talked about such an alternative vision. I wish to draw on what has been said to attempt to sketch the main features of such a vision, bearing in mind that the sketch is only of one among many Aboriginal visions, that it is presented by a non-Aboriginal person as his understanding of what he has heard and read, and that it is rough and revisable. The comparison and contrast between it and Delgamuukw is presented as an invitation to begin a serious dialogue between Aboriginal and non-Aboriginal British Columbians over the shape that this process of reconciliation should take; a public dialogue of building trust and solidarity that is as necessary to the legitimacy and success of the process of reconciliation as the recognition of title, self-government and treaty negotiations.

The Delgamuukw Vision

In Delgamuukw the Supreme Court presented an overview and a set of guidelines concerning aboriginal title for the reconciliation of Aboriginal and non-Aboriginal peoples by means of treaty negotiations. As the Court concluded (186):

Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve … a basic purpose of s. 35(1) - "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown". Let us face it, we are all here to stay.

As Kent McNeil said yesterday, as well as in his Robarts Lecture, Delgamuukw is a decision of great importance. The Court recognises that aboriginal title to land exists as a robust right to exclusive use and presents criteria for the proof of aboriginal title on the one hand, and it defines the criteria required to justify the infringement of aboriginal title by the federal and provincial governments on the other, subjecting infringement to procedures of consultation and compensation. Notwithstanding, Kent McNeil went on to say, it is necessary to view this decision with a degree of caution.

Delgamuukw and the current understanding of the treaty process place aboriginal title and Aboriginal people in a wider vision of Canada that is not shared by either the Report of the Canadian Royal Commission on Aboriginal Peoples or by many Aboriginal people who expressed their views at this conference and at the Royal Commission. This is how the Court described their vision of recognition and reconciliation (quoting Gladstone) (161):

Because … distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.

Four features of this view that are worthy of caution because they appear to run counter to the vision often expressed by many Aboriginal people. First, Aboriginal peoples, First Nations, are not seen as equal in status to the Canadian and British Columbian peoples, but as a kind of minority within the larger Canadian society and de facto subject to Crown sovereignty. Second, although the rights and title of Aboriginal peoples derive from their existence as societies prior to the assertion of sovereignty by the Crown (in 1846), these Aboriginal rights and title do not themselves pre-exist the coming of the Crown or continue to exist outside the sovereignty of the Crown, but exist only within the Canadian constitutional system. Third, Aboriginal title exists under section 35 of the Constitution and is modified into common law treaty rights under section 25 by means of treaty negotiations (such as the fee simple land rights of the Nisga’a Final Agreement). Fourth, as has been extensively discussed at this conference, once aboriginal title has been successfully proven in a particular case, it can be infringed by means of a broad range of objectives of sufficient importance to the broader provincial community as long as these objectives are justified and procedures of consultation and compensation, but not of consent, are carried out.

Several features of this general vision appear to be shared by the federal and provincial governments in the treaty process. I have the deepest respect for the Nisga’a people and the tough negotiations they have undergone. Nevertheless, I would like to point out one section of their treaty that appears to follow the second feature of Delgamuukw listed above. The Nisga’a are not recognised as Aboriginal peoples with any international status or rights as a people prior to or independent of their recognition by the Crown. They are recognised as a First Nation and Aboriginal people of Canada: that is, solely within the Canadian constitutional system. Any claim they might have in the present or future to the rights of indigenous peoples under the evolving international law of indigenous peoples appear to be released in sections 22-27 of the Nisga’a Final Agreement.

This is neither the vision of a nation-to-nation relation between equal and co-existing peoples presented by the Royal Commission nor what Ed John called in his presentation ‘the co-existence of aboriginal title and Crown title’. Let us now turn to a rough sketch of this alternative vision held by many indigenous people.

An Indigenous Vision

The indigenous people of America hold a wider variety of views about their status and their relation to non-Aboriginal Canadians and Americans. Nevertheless, there is one view that I have heard and read many times and which I think I can summarise provisionally without too much distortion, subject of course to correction from those who know better. It is the vision referred to by Maas Gaak (Don Ryan) in his presentation. This is the view of aboriginal title as the right of self-determination of indigenous peoples over their traditional territories. They are ‘peoples’ or ‘nations’ under international law, just like any other nation or people and by the same criteria of nationhood in international law. Their title to land and self-rule derives from and continues to exist within the traditions of governance and land use of the indigenous peoples of North America since time immemorial. This is the vision that Kent McNeil referred to yesterday as ‘prior sovereignty’ and which the Royal Commission described in Volume Two, Part I of its final Report in 1996, Restructuring the Relationship.

On this view, aboriginal title to land and the inherent right of self-government of indigenous ‘peoples’ or ‘nations’ exist independently of the Canadian constitution; they continue into the present; and they co-exist equally with the sovereignty and title of the Crown. Aboriginal peoples are as free and equal as non-Aboriginal Canadians. They are not a minority defined by and within Canada but free, equal and self-governing peoples in a unique set of relations with Canada. Their rights derive from their sovereignty prior to the coming of the Crown and from their status as peoples with the right of self-determination under international law, and their recognition as peoples is the only way to end the colonial relationship.

How, then, is aboriginal title recognised and reconciled with the Crown on this view of the equality of peoples? The answer is that Aboriginal peoples and the Crown enter into nation-to-nation treaty negotiations on equal footing in order to work out specific agreements on sharing land and political powers. The main features of treaties are the following. First, the Crown did not settle justly in North America simply by unilaterally asserting sovereignty; it had to gain the agreement of the First Nations. The Crown gained and continues to gain consent, and so justice, by means of treaties which protect the autonomy of both parties and establish relations of interdependence. Second, the status of both parties, Crown and First Nations, co-exists and continues through all treaty-agreements, being neither extinguished nor released. The respective land titles of aboriginal peoples and of the Crown are not in question in the treaty negotiations, but are accepted as the basis for the negotiations. Third, treaties are negotiations over specific agreements on sharing land and political powers, tailored to the specific concerns of the Aboriginal and non-Aboriginal communities involved. Finally, the treaty system of co-governance is based on consent, equality, mutual recognition, mutual respect and sharing.

This vision of mutual recognition and reconciliation through treaty relations informed the early treaty system, it was endorsed by both Aboriginal people and Crown representatives, encoded in the Iroquois Two Row Wampum Treaty Format and the Royal Proclamation of 1763 (now recognised in section 25), re-asserted in a modified form by the Royal Commission on Aboriginal Peoples, and it now has the support of many Aboriginal and non-Aboriginal people who wish to rid Canada of its colonial relationship and relate to each other as free and equal peoples. Moreover, it is gaining ground in the evolving international law of indigenous peoples. There is no reason why it cannot also play a role in rethinking the treaty process in B.C.

If, therefore, Aboriginal peoples in British Columbia were to accept the features of Delgamuukw and the treaty process mentioned above, they would cut themselves off from this traditional vision of their status and reconciliation with the newcomers.

One of the most important dimensions of this vision is the way treaties are understood. Treaties are not negotiated to determine and constitutionalise aboriginal title and rights. The rights and title of indigenous peoples to self-determination and their traditional territories, as well as the rights and title of the Crown, are mutually recognised and taken for granted as the basis of any treaty negotiation. The parties enter into treaty negotiations as equals in order to work out specific and pragmatic binding relations of cooperation where their titles and rights overlap: that is, relations of co-governance, resource development, capacity building, environmental standards, employment, taxation, health care and other matters to alleviate the horrendous social and economic conditions in Aboriginal communities. The treaties thus gradually replace the institutions of the Indian Act, step by step over decades, with institutions and practices based on the two principles characteristic of mutual recognition and respect among equals - autonomy and sharing

What is To Be Done?

Satsan (Herb George) said that is time for Aboriginal people to take a hard look at Delgamuukw and the current treaty process and to present their own view of Aboriginal title and of treaty making, one grounded firmly in indigenous traditions and communities. The vision I have sketch may be of some help in this process of reflection and reform in four ways.

First, ever since the arrival of Europeans, Aboriginal peoples have continued to act on a day-to-day basis as peoples with the right of self-determination and equal in status to the Crown, despite what the Crown has often said to the contrary and despite the power piled up to silence them. Ed John mentioned four forms of action: litigation, negotiation, confrontation, and direct action. Direct action is precisely the activity of acting here and now as First Nations, as peoples with the right of internal self-determination who aim to develop the capacity to exercise this right. How is this to be done? One important and timely way of thinking about this option is presented by Taiaiake Alfred in his book, Peace, Power, and Righteousness: An Indigenous Manifesto (1999).

Second, Aboriginal peoples could enter into treaty negotiations on the basis of their own vision. That is, they take their aboriginal title and right of self-government as given, as not open for negotiation, and sit down to negotiate specific agreements directed to the real and pressing needs of their communities, not to some abstract legal definition of their rights. The treaties would thus be about pragmatic partnerships and interim agreements with business, governments, local communities and public sector organisations to address the social, economic, health, youth and other concerns of the people at the grass roots, as Dan George stressed yesterday. How is this to be done? One way of thinking about treaties in this more traditional and effective manner is presented by Robert Williams in his book, Linking Arms Together: American Indian Treaty Visions of Law and Peace 1600-1800 (1997). He explains how treaties can be used in this way to build relations of trust and cooperation with non-Aboriginal Canadians: that is, genuine certainty and reconciliation.

Third, Aboriginal people should think seriously about the consequences of releasing their international indigenous rights and accepting some kind of minority status in the course of litigation or treaty negotiations. They should consider defending their status as peoples under international law and ensure that it continues throughout all treaty agreements, as the vast majority of indigenous peoples have done for the last 500 years. Let me recommend another Aboriginal scholar in this regard, Sharon Helen Venne, in her book, Our Elders Understand our Rights: Evolving International Law Regarding Indigenous Rights (1998).