Adoption of the Charter of Rights and Freedoms in 1982 made treaty and aboriginal rights constitutional, though no one knew at the time what that meant. We are gradually finding out as the Supreme Court of Canada develops a new body of law.
The recent Grassy Narrows decision affirmed the status quo with respect to the honour of the Crown, fiduciary responsibility and the duty to consult. It also preserved the architecture of the Canadian constitution by rejecting appellants’ contention that only Canada, not Ontario, could grant timber licenses on land that was given to Ontario in 1912.
The Roger William decision was more innovative. Here, the Supreme Court recognized aboriginal title to a specific tract of land that had never been surrendered by treaty. The court had said in its 1997 Delgamuukw decision that aboriginal title still existed in British Columbia because of the absence of treaties, but William was the first decision to recognize title to a specific area.
The original sin of colonialism in Canada was to ignore the property rights of native people. For the Supreme Court of Canada now to recognize aboriginal title is a legal development comparable in importance to the American Supreme Courtѻý overturning, in Brown v. Board of Education, of the doctrine of “separate but equal” for African-Americans.
But while aboriginal title was recognized in the William case, the court imposed three conditions that drastically reduce its value and demonstrate continuing paternalism.
First, it held that aboriginal title can only be sold to the Crown. This is an echo of the policy, first enunciated in the Royal Proclamation of 1763, that only the Crown could deal with First Nations for the surrender of their lands. The policy may have been justified in 1763, when the natives of North America were not yet familiar with British concepts of sale and negotiation; but that hardly applies to todayѻý First Nations. To confine their right of sale to a single purchaser undercuts the value of their lands; it is a restriction that would not be imposed on any other group in Canada.
Second, it held that aboriginal title land cannot be developed or misused in a way that would deprive future generations from benefiting from that land. This makes it clear that aboriginal title land needs to remain with the community, but there is no clarity on what type of development is allowed. For example, if a community wishes to lease its title land for an LNG facility, would that be considered depriving future generations of the benefit of the land?
The only guidance provided on this condition is that particular use will be determined on a case by case basis. In other words, expect more litigation.
Finally, it held that aboriginal title is collective in nature. The judgment is sprinkled with statements that title land can be used for a variety of purposes as long it can be reconciled with the communal nature of the groupѻý attachment to the land. With the recognition of collective ownership, it is clear that First Nations cannot freely sell title lands to whomever they choose; but it remains unclear if any form of individual property rights can be created.
It is also paternalistic for the court to think that all First Nations, many of which would like to extend full property rights to members, continue to have a “communal” attachment to their land.
The Court stated that “Aboriginal title holders of modern times can use their land in modern ways,” unless of course, as the conditions above demonstrate, they wish to exercise the same property rights as all other Canadians. Apparently, thatѻý too modern.
The ambiguity surrounding these conditions means there will be additional litigation to seek clarity and guidance on property rights for aboriginal title land.
Tom Flanagan teaches political science at the University of Calgary. Ravina Bains is associate director of the Fraser Institute Centre for Aboriginal Policy Studies.