Aboriginal Title

Indigenous Peoples insist that their land ownership comes from their having lived upon and used the land since “when the world was new”, to use Dene elder George Blondin’s phrase. The rights and responsibilities that go with this relation to the land are inherent, tough they may be augmented or changed by treaty.

Aboriginal title, by contrast, is a legal concept; the Canadian state says Aboriginal title derives from a set of legal documents like the royal proclamation of 1763.  Aboriginal title is a common law ownership interest in the land that Aboriginal Peoples have. In the Canadian state's view, Aboriginal title derives its legitimacy not from fundamental principles, but from the recognition of the Crown.

The Royal Proclamation of 1763 was a founding constitutional document for Canada. After the Seven Years' War, the British needed to remove the military regimes that ran what was then New France and the other newly won British possessions. In October, 1763, a proclamation was printed that established civilian governors in each of the new British “possessions”; but about half of the document dealt with Aboriginal land issues. Fearing another rebellion in the wake of Pontiac’s attempts to drive the invaders back across the ocean, the government decided on a policy of appeasement with Aboriginal peoples and promised to respect their land rights. To do that, the proclamation stated that only the Crown, not private citizens or colonial governors, could buy land from “Indians,” and must do so in a fair and public process.

Treaties

As a result of the Royal Proclamation, when, in the 19th century, Canada wanted to open Indigenous lands for settlement and resource extraction, it had to sign treaties with First Nations. This was the great period of historical treaty-making, spanning a period of seventy years, and covering a territory about half the size of Canada. The traditional understanding among First Nations of all these treaties is that they are peace and friendship treaties, about peaceful coexistence and the right of Indigenous Peoples to continue governing themselves according to their customs, and living on the land as they have done since time immemorial. While this understanding reflects the oral agreements made on the spot by government agents, the treaties were usually rewritten back in Ottawa and later unilaterally interpreted by Ottawa as having extinguished all title to the lands they covered. First Nations reject this interpretation; their understandings of treaties have been upheld by the courts when they have been tested.

Court cases

A series of court cases such as the Calder case of 1973 involving the Nisg'a nation, the James Bay Cree case of 1973, and the Delgamuukw case of 1997, involving the Gitxsan and Wet'suwet'en nations, established progressive stronger notions of Aboriginal title in Canadian law, recognizing Aboriginal title as deriving from the pre-existence of Indigenous societies. However, the courts have always stopped short of diminishing the sovereignty of the Crown, treating Aboriginal title as a "burden" on  "underlying" "Crown title".  The assumption of "underlying Crown title" shows that colonial courts will only go so far in recognizing and protecting Indigenous rights.

As a result of these court cases, however, federal and provincial governments were forced to take Aboriginal land claims seriously, opening a modern era of treaty-making and comprehensive land claims. However, the fundamental policy of all levels of governments remained the same: extinguishment of Aboriginal title everywhere and by any means necessary.

The first of the modern treaties was the James Bay and Northern Quebec Agreement of the mid-seventies, negotiated in order to resolve the conflict around hydroelectric development in northern Quebec. Subsequent deals were slow in coming. The Western Arctic Agreement with Inuvialuit in the Northwest Territories in the mid-eighties was next. Eventually the Nunavut Agreement was signed, several Dene and M├ętis groups in the N.W.T. signed agreements in the nineties, as did several of the First Nations in the Yukon.

Canada's policy agenda: extinguishment of Aboriginal title, assimilation and termination of Indigenous Peoples

In all of these agreements the core government demand was the surrender or “extinguishment” of Aboriginal title. The language of these agreements is ruthless. For example, the much-lauded Nunavut claim says in part, “Inuit hereby cede, release and surrender to Her Majesty The Queen in Right of Canada, all their Aboriginal claims, rights, title and interests, if any, in and to lands and waters anywhere within Canada.” Similar language exists in each of the treaties and each of the modern treaties. Only two agreements, the recent Tli Chon (Dene) and the Nisga’a agreements, do not have an extinguishment clause but rather a clause stating that the text of those claims specify all the Aboriginal rights of the respective First Nations.

This “exhaustion” model of Aboriginal rightts says the treaties fully “exhaust” Aboriginal rights and title. None exist outside the agreement. In some ways, this is an even broader denial of Aboriginal rights than the extinguishment clause. After decades of criticism over extinguishment as the basis of their policy, the federal government has only learned to be more thorough in its attempts to extinguish Aboriginal title and assimilate and terminate Canada's Indigenous nations.

One of the most devious attempts to extinguish Aboriginal title in recent times was British Columbia's Orwellian "Recognition Act", which purported to recognize Aboriginal title, but actually recognized crown title in ways that diminished Aboriginal title.

Extinguishment of title: why agree to it?

A few nations have signed modern treaties in which title is extinguished, in exchange for small reserve lands and cash payouts. The problem with all these deals is that not only is title extinguished forever, but governments have not honoured their sides of the bargain. That's why a new coalition of modern treaty nations has formed to press its case for the government to honour its word. Alliances among historical treaty nations frustrated with the constant infringement of treaty rights have also formed to fight for Aboriginal and treaty rights. Non-treaty nations look at Canada's shabby record of upholding treaties and most are now deciding that giving up Aboriginal title is a bad deal.