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Canada Responds to Tsilhqot’in Decision: Extinguishment or Nothing!

By Russell Diabo and Shiri Pasternak

This is the third in a three-part series on the landmark Supreme Court of Canada Tsilhqot’in v. British Columbia decision last June, first published in First Nations Strategic Bulletin. Part 1, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.

“Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements,” stated Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt on the day the final Tsilhqot’in decision came down in June.

After 25 years of litigation, millions of dollars in legal fees, and 399 days in court for the Supreme Court hearing alone, the Tsilhqot’in people might have preferred a negotiated settlement, too. But not the kind the Government of Canada was offering. The Minister was referring to the Comprehensive Land Claims policy, the Government’s preferred method for dealing with unceded Indigenous territory in Canada.

For critics of Canada’s Comprehensive Land Claims policy, the federal government’s response to the Supreme Court decision conveyed an automatic and outright denial of the Court’s watershed finding that the Tsilhqot’in Nation held underlying Aboriginal title to their territorial lands. The land claims policy, referred to by critics as the “termination tables,” requires Aboriginal groups to cede their Aboriginal title and circumscribe their Aboriginal rights upon settlement through the use of two legal techniques: “Modification” of Aboriginal Title and/or “Non-Assertion” of rights.

To push the land claims policy at a moment when the Supreme Court of Canada successfully challenged one of its worst aspects – extinguishment – was a stark message for the federal government to send.

At a press conference in the weeks following Canada’s initial reaction, Minister Valcourt expanded on his Department’s approach to unceded Indigenous lands, now evading any mention of the Tsilhqot’in decision.

He introduced new measures to promote “reconciliation” in advance of and outside of the Comprehensive Land Claims policy and to accelerate the signing of “modern treaty” agreements. He also promised the introduction of new consultation guidelines for government and industry with regards to First Nations over natural resources.

Would these changes reflect the recognition of Aboriginal title won under Tsilhqot’in?

Consultation as extinguishment

At the press conference, Minister Valcourt announced the appointment of Douglas Eyford as the Ministerial Special Representative to assist Canada to reform the Comprehensive Land Claims policy. This appointment signals an end to the Assembly of First Nations (AFN) – Canada Comprehensive Claims Senior Oversight Committee (SOC). Prime Minister Harper established SOC during a meeting with the Assembly of First Nations in Ottawa on January 11, 2013 in order to address grievances with the policy.

But the appointment of Eyford marks the real direction the government is taking to address First Nations’ grievances. In 2013, Eyford acted as the Government’s Special Federal Representative on West Coast Energy Infrastructure. The “Eyford Report” focused on consultation and engagement with First Nations over energy infrastructure. The report mentions Aboriginal title only once, in passing. Thus, Eyford has been instrumental in creating the template for denying Aboriginal title through consultative mechanisms.

The focus of consultation in his 2013 report is on “reconciliation.” However, it is clear from the report that it is Indigenous peoples who must do all of the reconciling of their pre-existing sovereignty with Canadian claims to underlying title.

The mandate of the Eyford Report is linked to the Government of Canada’s agenda of expanding export markets for oil and gas. Spelled out early in the report, Canada’s priority is the need to “capitalize” on global energy demands, therefore “to construct pipelines and terminals to deliver oil and natural gas to tidewater.”

The Projects listed as crucial here are the expansion of Kinder Morgan’s existing Trans Mountain Pipeline, Enbridge’s Northern Gateway Pipeline, and several proposed natural gas pipelines and related upstream developments. Projects also include the development of liquefied natural gas (LNG) facilities in Kitimat and Prince Rupert, tied most directly to potential Asian markets.

The “impediment” to Canada’s diversified energy market – crucial because Canada’s principal customer is the United States, which is expanding its energy sources – is that Aboriginal peoples hold constitutionally protected title and rights with which industry and government must legally comply. In other words, the objective of Aboriginal Affairs’ recent announcement on the land claims policy was not to reconcile the policy with the Supreme Court’s findings on Aboriginal title, but to accelerate the policy framework of Aboriginal title extinguishment, particularly in the areas of major resource development projects like the proposed pipelines in British Columbia.

The Black Box

The federal government is fighting tooth and nail against ceding an inch of legal authority over land despite the pronouncement from the highest court in the land. According to figures recently released by Parliament (as reported in the Law Times), oil and gas disputes have been the top expense for AANDC for the past three years.

The federal government has been either fighting First Nations in court – the last resort for Indigenous peoples trying to defend and protect their lands – or pushing groups into the Comprehensive Land Claims policy, many of them through the British Columbia Treaty Commission process, since 50 percent of the current Comprehensive Land Claims negotiation tables are in British Columbia.

So, what should the Government of Canada’s response have been to the Tsilhqot’in decision?
 
When the SCC Delgamuukw (1997) decision came down, recognizing that Aboriginal title underlies provincial fee simple interest in the land, by a resolution of the Chiefs-inAssembly, the AFN established a group to leverage the Supreme Court decision to change the Comprehensive Land Claims policy. The AFN Delgamuukw Strategic Implementation Committee (DISC) commissioned a legal analysis, prepared by Mark Stevenson, to find any discrepancies between the policy and the decision.

Two initiatives sprung from AFN-DISC: an Aboriginal Title Alliance and an aborted judicial review undertaken by the Assembly of First Nations to examine the Minister of Indian Affairs’ decision not to review the policy, given the ground-breaking ruling. Both of these efforts failed due to internal division between First Nations leaders who had agreed to negotiate under Canada’s Comprehensive Land Claims policy and those First Nations leaders who are not negotiating under the Comprehensive Claims policy.

Perhaps a new Aboriginal Title Alliance will form today. Are there too many Aboriginal groups at the Comprehensive Land Claims negotiating tables that have borrowed money from the federal government for land claims negotiations to exert any pressure on the government to change the policy, as has been the case in the past? Or can a political movement of Aboriginal Title holding groups build the unity and strength to hold Canada to account for administering illegal unjust policies that violate Aboriginal title, rights and international protocols protecting Indigenous peoples from land dispossession?

There are fundamental changes that Canada could make to reform the Comprehensive Land Claims policy for the better. In her decision, Justice McLachlin specifically rejected what UBCIC Grand Chief Stewart Philip called the “postage stamp” theory of Aboriginal title. Instead, the court opted for a more expansive understanding of Indigenous land rights over a broad territorial range. Yet the land selection process under the Comprehensive Land Claims policy is precisely the kind of site-specific approach to addressing underlying Aboriginal title that the SCC rejected. The entire territorial range including private lands should be on the table at least for compensation, and Aboriginal title should not be extinguished upon settlement or transformed into private property.

Currently, there is no way to get a Declaration of Aboriginal Title in Canada without enduring a costly and timely research process and court case, which most groups cannot afford. The Comprehensive Land Claims policy is the sole federal policy by which unceded lands may be settled, yet it requires that bands extinguish their pre-existing Aboriginal title through a negotiated title conversion process into fee simple title.

What alternatives exist? Valcourt clearly signaled that Canada is not willing to change the structure of settler colonialism in Canada. Only a political movement of Indigenous Peoples and supporters from Canadian civil society who support justice and reconciliation with Indigenous peoples will convince him otherwise.

Russell Diabo is a member of the Mohawk Nation at Kahnawake. He is Editor and Publisher of the First Nations Strategic Bulletin, a web-based newsletter available from the Canada Library and Archives website in Electronic Collections. For more information, contact rdiabo [at ] rogers.com.

Shiri Pasternak is a researcher and activist who has worked closely with the Algonquins of Barriere Lake as an ally in their resistance to the federal land claims process in Canada. She is a founding member of Barriere Lake Solidarity, a member of the Indigenous Sovereignty and Solidarity Network in Toronto, and an ally in the Defenders of the Land network.

An earlier version of this article was published in First Nations Strategic Bulletin 12, 8-10 (August-October 2014). Part 1 in this series, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.

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