The Values that Underlie Aboriginal Title

In my last blog post (November 3, 2014), I discussed the significance of the Tsilhqot’in decision. This week I will explore some potential issues with the meaning of Aboriginal title defined by the decision.

The Tsilhqot’in decision provides legal precedent for recognizing Aboriginal land title, but at this stage there is much uncertainty about how this precedent will manifest itself in future legal and governmental decisions. Much more work needs to be done – in the form of legal challenges, political negotiations, etc. – before new norms regarding Aboriginal land title are determined. In the meantime, commentators and experts have made predictions that range across the spectrum. Below I will briefly explore two of these perspectives and offer my thoughts on their implications.

“Full Property Rights”

In a Globe and Mail column published shortly after the decision, Tom Flanagan and Ravina Bains argued that the Supreme Court’s recognition of Aboriginal title is qualified by “three paternalistic conditions that drastically reduced its value”. These three conditions, which I touched on in my last blog post, are all related to the conception of Aboriginal title property rights outlined in the decision. Flanagan and Bains take issue with the fact that Aboriginal title can only be sold the Crown, that it must not be used in such a way as to prevent future generations from benefiting from the land, and that it is collective in nature. They argue that the assumption that all Indigenous communities have a communal attachment to their land is paternalistic and denies the extension of “full property rights to First Nations members”.

“Responsible Land Stewardship”

A radically different perspective was recently put forward by Martin Lukacs in The Guardian. Lukacs, analyzing the several months that have elapsed since the decision, is highly critical of the federal government’s response to Tsilhqot’in. He argues that the Harper Government is “doing everything in its power to deny” Aboriginal title. The main site of tension Lukacs identifies is between the government’s drive for resource development and the inherently conservationist values of Indigenous groups. He defines this tension as a “battle between the love of the land and a drive for its destruction”. Wider and more meaningful recognition of Aboriginal title, he argues, would mean “much more responsible land stewardship”.

Thoughts: What are Indigenous values?

The two articles I have outlined above come from authors on two very different places on the political spectrum. Flanagan and Bains are both conservative commentators, and it is clear that championing private property rights lies at the heart of their analysis. Lukacs, on the other hand, is an environmentalist and largely opposed to the extractive industry. Their arguments mirror this difference. However, both articles prompted me to ask myself similar questions about Aboriginal title as conceived in Tsilhqot’in. Namely, what are the assumptions about Indigenous values underlie the decision? Who defines these values, and how open are they to change?

After reading both articles, my initial reaction was to disparage Flanagan and Bain and endorse Lukacs. After all, I support environmentally conscious land management and do not place great value on private property rights. However, after some thought I realized this evaluation of the articles was potentially problematic. The issue I wanted to consider was not private property or environmentalism, but rather the extent to which Aboriginal title allows Indigenous groups to exercise self-determination. Why, then, were other values informing my opinion to such an extent?

I think the reason my opinion was informed by these values, and the reason the debate is often coloured this way, is clear in the text of the decision itself: the Supreme Court justices don’t just recognize Aboriginal title, they define it. More importantly, they define it based on a set of values – collectively held land, sustainable development, etc. – that are derived from a particular understanding of land use. This does not seem problematic in the context of the Tsilhqot’in case, because the judges reached an understanding of Aboriginal title based on the Tsilhqot’in people’s traditional relationship with the land. But if this is now legal precedent, and therefore this is the conception of Aboriginal title used in the courts moving forward, the implications go far beyond Tsilhqot’in Nation. I think this could be problematic.

Amongst the incredibly diverse range of First Nations across Canada, it seems highly probable that there will be some groups who may want to sell parts of their traditional land to private entities or allow resource extraction that is not subject to strict environmental protocol. These desires would clash with the form of Aboriginal title recognized under Tsilhqot’in. If such desires are denied, however, what is the basis for this denial? That managing the land in such a way is inconsistent with Indigenous values? If this is the rationale that is used, we are accepting that Indigenous conceptions of land can be essentialized into a coherent set of values and that departing with these values is somehow un-Indigenous. I think this is could be a dangerous road to travel.

I have tried to tread exceptionally lightly in this blog post because I am conflicted. On the one hand, I think the conception of Aboriginal title set out in Tsilhqot’in is a beautiful way to think about land management and clearly reflects the values of Tsilhqot’in Nation. It is an extremely positive decision in many ways. On the other hand, however, I wonder what the decision means for Indigenous autonomy over traditional lands that are recognized under this conception of Aboriginal title. Cultures and traditions can change; if they do, it seems inappropriate to say that these changes are out of line with traditional Indigenous values and therefore invalid. Aboriginal title may limit autonomy in this way, and, although I am loathe to agree with Tom Flanagan on anything, perhaps even paternalistic.

Richard

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