Following the Tsilhqot’in decision, in the fall of 2014 the federal government, through its ministerial special representative Douglas Eyford, sought comments on its new Interim Comprehensive Land Claims Policy. The interim policy set out Canada’s position on negotiating with Indigenous Peoples over their Aboriginal title and rights. Unfortunately, the new policy was based on the same misguided objectives that have plagued Canada’s approach to reconciliation for decades.
According to the federal government, the objective of its new land claims policy was 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 described in The Comeback as the national narrative of colonization. Rather than acknowledge Indigenous lands as being integral to the survival of Indigenous Peoples as prosperous, self-sufficient societies, successive federal 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 new land claims policy of 2014, like all the policies that preceded it, 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. 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.
Rather than negotiate agreements that recognize Aboriginal title, Canada decided to continue with a policy that is 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. The obligation to preserve Aboriginal title lands for future generations gives rise to an inherent limit: nothing can be done to Aboriginal title lands that would disentitle future generations’ use and enjoyment of the land. Both the use of Aboriginal title lands by the current generation of Indigenous people and the possible infringement of Aboriginal title by the Crown are subject to this inherent limit. Canada’s objective of achieving “certainty” through extinguishment is anathema to the very basis for Aboriginal title.
A policy of extinguishment is also inconsistent with the federal government’s fiduciary responsibilities to Indigenous Peoples. The court in Tsilhqot’in affirmed that when dealing with Aboriginal title, Canada 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.
The way out of the narrative of marginalization of Indigenous Peoples and the exploitation of their lands is for Canada to adopt a land claims policy consistent with the principles underlying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Supreme Court’s Tsilhqot’in decision. At their heart 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 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 jettisoned its 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.
In 2018 the federal government expressed an intention to move away from its existing comprehensive land claims policy, including its long-standing insistence on extinguishment, and to begin instead to finally start to recognize and implement Indigenous rights. This included establishing new “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples” and a “Directive on Civil Litigation Involving Indigenous Peoples” to guide the recognition and implementation of Indigenous rights going forward. This new framework has resulted in the creation of dozens of “Recognition of Indigenous Rights and Self-Determination” discussion tables across the country. The jury is still out on whether the federal government has actually changed its policies or whether Indigenous people are once again being offered rhetoric over substance.