Wed. Jun 19th, 2024

The B.C. Treaty Process has often been very controversial. First of all, many First Nation communities have dropped out or refused to participate based on their belief that the process extinguishes titles favouring the B.C. government, allowing the provincial government to continue developing lands at the expense of their territories and cultures. Secondly, there is always a significant difference between what the First Nation Peoples see as their “Original Title” to the land and its resources and the Canadian and B.C. legal notion of ‘Aboriginal Title.’ For these reasons, many consider the B.C. Treaty Process to have failed at settling issues of Aboriginal title.  The debates are ongoing, preventing further negotiations from continuing.

Modern Land Claims and First Nation Perspective

Reconciling the Canadian legal understanding of Aboriginal title with First Nation peoples’ knowledge is not a straight forward task.  The idea that Aboriginal title would be a proprietary right to the land stands in contrast to First Nation peoples’ concept of land ownership.In their concepts, the creator provided the land to them and their future generations. They have argued that they retain inherent land rights to territories given their creator. The lands are not owned, but rather the land and the people exists in a reciprocal relationship. In this regard, Indigenous activists note that Aboriginal title cannot be surrendered but only shared — “First Nation Peoples retain inherent land rights to traditional territories.”

Based on the First Nation viewpoint, the Royal Commission on Aboriginal People concluded that Aboriginal title does not include “the right to alienate or sell land to outsiders, to destroy or diminish lands or resources, or to appropriate lands or resources for private gain without regard to reciprocal obligations.” Summarizing this viewpoint, the “cede, release, yield up and surrender” written in the land treaties constitute an agreement upon the conditions by which the land would be shared instead of a surrender of Aboriginal title.

Although the British Columbian government created B.C. Treaty Process to reach agreement, the disagreement with First Nations regard to Aboriginal title makes the process fruitless. As you can see, the Canadian legal understanding of the Aboriginal title is that it is a burden on the Crown’s underlying title.

In this understanding, the British Columbian government continues to interpret Aboriginal title to be something that can be ceded or transferred only to the Crown. This legal interpretation accepts the Crown’s underlying title as a given, and did not require the Crown to prove or validate its claim to sovereignty. Many First Nation communities are uncomfortable with the legal interpretation made by the government because they believe the interpretation assumes the Crown’s sovereignty without questioning its legitimacy.

Who is right? I think reconciling the Canadian legal understanding of Aboriginal title with First Nation understanding remains a great challenge.

Bibliography

Crowe, Keith. “Comprehensive Land Claims: Modern Treaties”. The Canadian Encyclopedia, 11 July 2019, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/comprehensive-land-claims-modern-treaties. Accessed 16 December 2021.

Dyck, Lillian E., et al. A Commitment Worth Preserving: Reviving the British Columbia Treaty Process. Canada Senate, Ottawa, Ont., 2012.

Malone, Molly and Libby Chisholm. “Indigenous Territory”.  The Canadian Encyclopedia, 05 July 2016, Historica Canada. http://www.thecanadianencyclopedia.ca/en/article/indigenous-territory. Accessed 16 December 2021.

Irwin, Robert. “Aboriginal Title”.  The Canadian Encyclopedia, 25 September 2018, Historica Canada. http://www.thecanadianencyclopedia.ca/en/article/aboriginal-title. Accessed 02 December 2021.

Hanson, Eric. “Aboriginal Title.” Indigenous Foundations. First Nations and Indigenous Studies UBC, 2009. Accessed 16 December 2021.

Raibmon, Paige, “Unmaking native Space: A genealogy of Indian Policy, Settler Practice, and the Microtechniques of Dispossession” in Alexandra Harmon, ed. The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest. Seattle: University of Washington Press, 2008: 56-85.

Tennant, Paul, Aboriginal People and Politics: The Indian Land Question in British Columbia, 1849-1989 Vancouver: UBC Press, 1990.

Woolford, Andrew. “Negotiating Affirmative Repair: Symbolic Violence in the British Columbia Treaty Process.” Canadian Journal of Sociology, vol. 29, no. 1, 2004, pp. 111.

This is an opinion article; the views expressed by me. Follow him on Twitter: @hkpltw And @Terry_Terence97

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