"Certainty": the Bitter Fruit of the Treaty Tree

The concept of "certainty" has emerged as a major stumbling block in treaty negotiations between the B.C. government and many First Nations. In general, certainty refers to the idea that negotiated settlements provide for the definite and final resolution of all claims by a First Nation. One reason why the government emphasizes certainty is to limit its financial obligations. Certainty also benefits business because it allows for more accurate economic planning and more secure investment in resource extraction. 

However, the government's insistence on certainty provisions in treaty negotiations has compromised the best interests of First Nations in a number of crucial ways.

Most importantly, the demand for certainty can be understood as a veiled attempt to pressure First Nations to agree to extinguish their rights to aboriginal title in return for a treaty. Aboriginal title is constitutionally protected, and we oppose political demands by provincial or federal governments for extinguishment clauses in treaties with aboriginal peoples in Canada. Fairness, justice and human rights - not certainty - should be the cornerstones of treaties signed with First Nations.

The demand for certainty or extinguishment is especially problematic when viewed in the larger context of what the government is offering in exchange. In our view, many of the government-negotiated offers to First Nations are grossly inadequate. In some cases, government negotiators are offering to return less than one percent of traditional First Nation territories. 

Another problem with government demands for certainty and extinguishments is that these ideas devalue traditional - and often spiritual - notions of aboriginal title. The United Nations Human Rights Commission recognizes that land is an essential foundation to the beliefs, customs, traditions, and culture of indigenous peoples. International law also recognizes a spiritual foundation in aboriginal title and affirms aboriginal peoples' rights to their traditional territories. Demanding what amounts to a surrender of aboriginal title as the price of a negotiated land settlement poses a deep moral problem.