Wed. Jun 19th, 2024

As mentioned in my previous commentary, the approach shown in the B.C. Treaty Process fails to at settling issues of Aboriginal title, as the process undermines any meaningful attempts at reconciliation by showing willful blindness to the rights of First Nation peoples.

Legally there is no question that Aboriginal title exists, and there is no doubt that related rights of First Nation communities to make decisions about and govern their territories also exist. Despite this recognition, legal reality of the B.C. Treaty Process held back Aboriginal title and land treaty. The biggest problem of the B.C. Treaty Process is that it only deal with grievances related to Aboriginal claims to land where, in the perspective of the Crown, the question of title had not been addressed through historical treaties.

Systemic Problem: Quick Fix Approach

The B.C. Treaty Process represents a systemic problem by both the British Columbian and federal governments. The problem is that the search for a quick fix is the kind of thinking that got British Columbia and Canada into this mess in the first place. Canadian federal and British Columbian governments have long viewed First Nation peoples with a sort of colonial contempt, treating rights and engagement as a threat and a burden rather than a constitutional and moral duty. More often than not, this resulted in governments seeking to do the least possible, and nothing more. For these reasons, many propels consider the B.C. Treaty Process to have failed at settling issues of Aboriginal title.

This approach resulted in the disagreements and distrust from many First Nation communities, who have found B.C. Treaty process as a means to extinguish Aboriginal title in exchange for rights and benefits outlined in the process itself. From their viewpoint, the B.C. Treaty Process is only dealing with grievances related to First Nation claims to land where, in the perspective of the Crown, the question of title had not been addressed through historical treaties. They argue that the concept in the process would only achieve certainty, making their rights inalienable.

When it comes to development proposals and other projects, federal and British Columbian governments have held the Crown to a standard of consultation, but not consent. Although the Canadian law system recognizes and acknowledge the existence of Aboriginal title, all levels of the governments are divided on whether or not it continues to exist. Determining the continued existence of title is a responsibility of the Crown, although the burden of proof entirely rests on First Nations to prove it exists.

Aboriginal title and related rights are proven in court or resolved by agreement with the Crown. However, the Crown has not been on a slow peace at reaching agreements with First Nation Communities regarding exercise of  Aboriginal title. Crown representatives and First Nation communities might have issued treaties in an effort to resolve issues of outstanding Aboriginal title.  These treaties set out agreements as to limits of Aboriginal rights and title. In other words, the Crown representatives proceed to avoid truly accept accepting Aboriginal title as a constraint on Crown decision-making.

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 20 December 2021.

Hanson, Eric. “Aboriginal Title.” Indigenous Foundations. First Nations and Indigenous Studies UBC, 2009. Accessed 20 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

34 thoughts on “Legal Reality of the B.C. Treaty Process Held Back Aboriginal Title and Land Treaty (BC First nations Treaty Discussion)”
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