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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The Tsilhqot’in Decision: Unpacking Aboriginal Title

Historic. Landmark. Watershed. Game-changer.

The language used in the media to describe this year’s Tsilhqot’in Nation v British Columbia Supreme Court decision is enough to make one sit up and take notice. With Tsilhqot’in, the Supreme Court reached a unanimous decision to recognize Aboriginal title to a specific tract of land for the first time in Canadian history. Understanding the implications of this decision, however, can be difficult. It is a decision steeped in centuries of history and decades of litigation, and it is not something that has an immediate and noticeable effect on the everyday lives of most Canadians. But the language used by the media is not hyperbole: the Tsilhqot’in decision is a transformative moment for Aboriginal land rights in this country. This affects all Canadians– both Indigenous and non-Indigenous – and therefore demands our attention.

This blog entry is a product of my attempt to understand the broader implications of Tsilhqot’in. As a non-Indigenous Canadian with a strong interest but little background in Indigenous politics, trying to sort out the complexities of Tsilhqot’in was a valuable endeavour. The decision cuts to the heart of the land claim movement in Canada, as it acknowledges a history of dispossession, incorporates Aboriginal conceptions of land usage, and sets out guidelines for future Aboriginal land claims. I will explore these topics below.

Historical basis

The true basis for this case goes back many centuries to the time before European incursion into North America. For thousands of years, Aboriginal nations across the country, including the Tsilhqot’in Nation in what is now central B.C., hunted, fished and lived on their home territories. They built complex social, political and legal structures, and, in the process, fostered an intrinsic connection with the land on which they lived. The Supreme Court’s decision to recognize the Tsilhqot’in people’s title to over 1,750 square kilometers of their traditional land is powerful recognition of this historic and unbroken connection.

Equally as important as maintaining a connection to their land is the fact that the Tsilhqot’in people never formally ceded their claim to the land. The historic basis for this aspect of the case goes all the way back to 1763 and the passage of The Royal Proclamation. The Proclamation, passed by the British Crown during colonial times, claimed all of North America in the name of King George III, but it also recognized the existence of Aboriginal title and stated that this title could only be extinguished by treaty with the Crown. For the next 250 years, much of modern day Canada was settled by Europeans through treaty agreements with First Nations. The meaning of these treaties and their impact on Aboriginal title is highly contested, but the treaties are nonetheless useful in providing a basis for negotiation between Indigenous leaders and the Canadian state.

However, the Tsilhqot’in people never signed a treaty. In fact, unlike much of Canada, most of B.C. was settled without formal agreements with local Indigenous groups. Without a treaty ceding their claim to the land, and with a strong historical basis for Aboriginal title built upon centuries of land use and stewardship, the door was open to Tsilhqot’in Nation to issue a legal challenge to the Crown. This is exactly what they did, relying on the guarantee in section 35 of the Constitution that “the existing aboriginal and treaty rights of Aboriginal peoples of Canada are to be respected and affirmed” to do so.

Treaties in Canada_AADNC

Source: Aboriginal Affairs and Northern Development Canada

What does Aboriginal title mean?

In rendering the Tsilhqot’in decision, the Supreme Court concluded a 30-year legal dispute by setting out a definition of the rights and duties conferred by Aboriginal title. They can be summarized in three main points:

  1. Economic rights

Aboriginal title recognizes the right of the Tsilhqot’in Nation to decide how their land will be used and to reap the economic benefits of development projects within their borders. If any other party wishes to use the land, including the government, they must obtain consent of the Aboriginal titleholders. This means that projects such as mining and logging can still take place, but the terms of such projects will be dictated directly by the Tsilhqot’in Nation.

  1. Collective and timeless ownership

Aboriginal title is distinct from Canadian common law conceptions of property in that it is defined as land that is timelessly and collectively held. This means that it is subject to two restrictions. First, the land can only be alienated (i.e. transferred or sold) to the Crown. Second, it cannot be used in such a way that would prevent future generations from enjoying benefit of the land.

  1. No veto

While the recognition of Aboriginal title allows the Tsilhqot’in Nation meaningful control over their lands, it does not give them a final veto. The Crown can still intrude on the land without consent, but such intrusion is subject to several restrictions that ensure proper consultation and a “compelling and substantial objective”.

Although the official decision contains much more detail than I have provided above, it still remains to be seen how each of the prescriptions will be worked out in future cases.

What does this decision mean for future Aboriginal title claims?

The Supreme Court has made rulings on Aboriginal title in the past (see Calder, 1973 and Delgamuukw, 1997), but none have so clearly spelled out what title means in a specific context. Tsilhqot’in is extremely important in this regard. In rendering its decision, the Supreme Court judges established a template for determining future title claims. This template is not rigid; rather, it allows for a context-specific approach that must be “culturally sensitive”. In other words, future adjudication on Aboriginal title claims must consider both Aboriginal perspectives (e.g. oral evidence from elders) and Canadian common law conceptions of possession and occupancy.

This legal precedent is indeed a “game-changer”. There are currently 64 First Nations involved in treaty negotiations with the B.C. government through the B.C. Treaty Commission. Their claims to land title are bolstered by the Tsilhqot’in decision, giving them a newly strengthened negotiating position. For many other First Nations in B.C., Quebec, and elsewhere who neither signed a treaty in the past nor are involved in modern treaty negotiations, there is a clearer path to gaining official recognition of title over their traditional lands. Even those First Nations who have signed treaties may use the decision to challenge government interpretation of those treaties, although there are many obstacles to this strategy. What is clear, though, is that Tsilhqot’in signals a new chapter in land management relations between First Nations and the Canadian state. This chapter has the potential to more closely represent an equal partnership than anything before it.

Continuing the conversation

Above I have explained what I found to be the most important facets of the Tsilhqot’in decision. It is a complex decision, but hopefully I have touched on most of the key points. In two weeks time I will make another blog post. In that post, I would like to engage with the public debate that has arisen as a result of this decision. To gauge public perception and identify common themes, I will speak to people in my life, read other blogs, and analyze online message boards. I also encourage people to leave their thoughts below in the comment section. I’m looking forward to continuing this conversation.

Further Reading

Explanation of the decision from a legal perspective:

http://www.thecourt.ca/2014/07/12/revisiting-aboriginal-title-part-iii-scc-clarification-in-tsilhqotin-nation-v-british-columbia/

Description of Aboriginal title:

http://indigenousfoundations.arts.ubc.ca/home/land-rights/aboriginal-title.html

Perspectives on the decision:

http://www.oktlaw.com/blog/aboriginal-rights-conservation-and-canadas-future-45-the-far-reaching-implications-of-the-tsilhqot39in-case/

http://www.theglobeandmail.com/globe-debate/aboriginal-titles-true-meaning-billable-hours/article19625777/

http://www.theprovince.com/life/Gordon+Clark+Native+court+rulings+perpetuate+unhealthy+divisions+Canada/10006556/story.html

Richard