Last week, in response to this summer’s Supreme Court decision in Tsilhqot’in Nation v. British Columbia, the Harper government quietly put forward an aggressive revision of Canada’s Indian policy. It is the first major revision of Canada’s comprehensive land claims and Aboriginal self-government policies since 1986.
Under the Orwellian rubric of “reconciliation” and “respect,” the Harper government proposes to radically curtail and circumscribe Aboriginal land rights and self-determination. It is all the more unusual that such a major policy announcement is being done quietly, and in an election year, when sitting governments usually eschew major new initiatives.
In Tsilhqot'in, for the first time in Canadian history the court ruled that an Indigenous nation held underlying Aboriginal title to its territorial lands. This opened up new possibilities of co-management of lands and resources by First Nations and the Crown, as well as affirmed the right of First Nations to benefit from economic activity and refuse development on their title land.
The court’s decision held out the possibility of a true reconciliation, if Canada would seize it. The Harper government could have embraced this opportunity to engage in good faith discussions with First Nations, recognizing the need to rethink a failed policy approach that has wasted billions of dollars over three decades, added a debilitating legal debt to the balance sheet of First Nations at the negotiating table and produced only a small handful of agreements. Instead, the government has opted for a unilateral, backsliding approach, doubling down on the current comprehensive claims policy.
The Comprehensive Land Claims Policy is the sole federal policy by which Aboriginal lands that were never covered by treaty may be settled. Yet, since its introduction in 1973, the policy has never been aimed at accepting Aboriginal title, but rather at terminating it, requiring that negotiating groups extinguish their pre-existing Aboriginal title through a negotiated process of converting their land into private property. Extinguishment is the price of being at the table. No other option is offered by Canada: it is extinguishment or nothing for First Nations.
This extinguishment requirement, now euphemized as “modification” and “certainty” provisions in response to extensive criticism by international organizations, is cynically reframed in the new interim policy as Canada’s commitment to addressing Aboriginal peoples’ constitutional rights. Under the government’s notion of reconciliation, however, wherever Aboriginal constitutional rights are “inconsistent with the treaty,” they will cease to exist. This is a radical denial of Aboriginal constitutional rights. Rather than respecting and reconciling Aboriginal rights with the Crown, this policy aims to eliminate those rights.
There is a stark difference between the Tsilhqot’in decision’s recognition of Aboriginal title and the Comprehensive Land Claims Policy’s approach of land surrender. Under the comprehensive claims policy, Tsawwassen First Nation received 724 hectares of land out of its original territory of 10,000 square kilometres, while the Tsilhqot’in Nation had 220,000 hectares of its Aboriginal title lands recognized, which are still held in their collective, customary, sui generis form.
The Tsilhqot’in decision also obligates governments to seek the consent of Aboriginal title holders in decisions that affect their rights on their traditional territory. This is much stronger than Canada’s existing regime of consultation. The court states that on recognized Aboriginal title lands, “The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it.” This proprietary interest implies that First Nations have the authority to exercise jurisdiction and governance over Indigenous lands and resources. This is what Stephen Harper finds intolerable, not only because he seeks to demolish any notion of collective rights in Canada, but because his government is desperate to expand Alberta’s oil export markets through new pipelines.
According to Aboriginal Affairs Canada, the proposed policy changes were motivated by a 2013 report by Douglas Eyford, the government’s Special Federal Representative on West Coast Energy Infrastructure. The report spelled out Canada’s priority: the need to “capitalize” on global energy demands and “to construct pipelines and terminals to deliver oil and natural gas to tidewater.” The “impediment” to an expanded, diversified energy market is that Aboriginal peoples hold constitutionally protected title and rights with which industry and government must legally comply. So Eyford’s report focused on consultation and engagement with First Nations on energy infrastructure.
It is telling then, that following the Tsilhqot’in decision, Aboriginal Affairs Minister Bernard Valcourt announced the appointment of Eyford as the Ministerial Special Representative to assist Canada to reform the Comprehensive Land Claims Policy. Eyford has created a template for denying Aboriginal title through bad faith consultative mechanisms. The supposed focus of consultation in his 2013 report is reconciliation. However, it is clear from the report that it is First Nations peoples who must do all of the reconciling of their pre-existing rights with Canada’s desire to take control and the benefits of their lands for itself.
Far from respecting the constitution and the court’s recent decisions, or aiming at true reconciliation through respect for Indigenous peoples’ title and rights, Stephen Harper is racing to finish the assimilation of Indians that Canada has been trying to accomplish since before Confederation.